Daley v Flynn

Notice of Appeal and Appellant's Contentions 10The notice of appeal stated the following grounds of appeal: (1)I was denied a proper hearing (2)I was not paid for tiling-waterproofing-painter. And did not supervise them. (3)The other party has admitted the estimate was a guide for her only. (4)The other party has no receipt for other trades and does not want to supply them (5)The other party shows a bank state (sic) only with $5000 withdraw but said she paid me more than $10,000. (6)I was not paid to supervise other trade. I only introduced them. 11The appellant filed a number of documents in accordance with the directions of the Appeal Panel. These included a statement which purported to explain the appellant's involvement in the contract he had entered into with the respondent. At the hearing of the appeal the appellant was asked to explain the nature of the contract which he contended that he had entered into with the respondent. He said that he had an oral contract with the respondent by which he was to strip the bathroom at the respondent's home and undertake some plumbing works. He was also to install a toilet, taps and vanities. He said that he provided to the respondent a document which contains the heading "B Daly Plumbing" and which sets out an estimate of work to be undertaken to the respondent's premises. It is document 8 being a document bearing the number 0257 and it contains, according to the appellant, a description of work to be undertaken, and a total estimate of the costs of the work namely $10,257.50 (inclusive of GST). He stated that that document was provided to the respondent to assist her to obtain bank finance but did not constitute a quotation or contract between him and the respondent. Rather the contract made between the parties was an oral contract. 12The appellant went on to assert at the appeal hearing that he only rendered two invoices, the first being an invoice for $900 (0159 ) and the second being an invoice $450 (160) for the work which he undertook. He said that he was not licensed to do the other work which the respondent had caused to be undertaken to her bathroom, but that he had introduced a number of tradesmen to undertake that work. There were three tradesmen being a waterproofer, a tiler named Mark and a painter named Jess. He had retained no contact details for Mark or for Jess. 13The appellant asserted that he did not supervise any of the tradespeople. He did speak to them to indicate where the work was to be undertaken but did nothing further.

Respondent's submissions 14The respondent has provided to the Tribunal submissions under cover of a letter dated 8 September 2014 which the respondent supplemented orally at the hearing. The respondent's position was that she needed an estimate of the cost of the proposed work in order to obtain a bank loan. She agrees with the appellant that the appellant supplied such an estimate being the document referred to earlier bearing number 0257. The respondent said that the appellant agreed that he would organise and supervise tradespeople other than the electrician (because the respondent had her own electrician). She agreed that the contract between her and the appellant was an oral agreement. 15The respondent said that the tradespeople came and undertook the work. She did not know who they were and did not pay them. Rather, she received requests for cash from the appellant for the purposes of enabling him to pay the tradespeople. She gave cash to the appellant and understood that the appellant would pay the tradespeople. She claims to have paid the appellant the sum referred to in document 0257 namely $10,257.50 by approximately two to three instalments. 16The respondent stated that when problems emerged with respect to the bathroom she had the appellant return and he attempted to fix the problems unsuccessfully. 17The respondent stated that the appellant was not telling the truth when he said that he had not paid the tradespeople. She pointed to a letter she had obtained from the tiler, Mr Steve Russell, in which Mr Russell stated that he had completed the installation of the membrane at the respondents property. The letter states that he was contacted to "quote and complete the work by Mr Brian Daley". He also wrote that on completion of the work he was paid in full by the appellant personally and that the appellant had instructed him to issue an invoice to the respondent. The appellant agreed he had paid Mr Russell with cash provided by the respondent. 18The respondent stated that she understand that the appellant was supervising the work of the tradespeople. The words she used at the appeal hearing was that the appellant was "overseeing the job".

The Appeals panel decision 19The appellant asserts five grounds of appeal. The first is that he was denied a proper hearing. This ground has no basis as there was a hearing at which the appellant was present on 2 May 2014 and it is evident that the Tribunal took evidence from both appellant and respondent and considered their respective documentary evidence. The other five grounds of appeal are assertions concerning factual matters and none identifies a ground of appeal which would constitute a question of law. 20The Act sets out the basis upon which appeals from decisions of the Consumer and Commercial Division may arise under section 80 of the Act. That section states that an appeal may be made as of right on any question of law (s80(2)(b)) or with leave of the appeal panel on any other grounds (s80(2)(b)). Schedule 4, clause 12 of the Act says that an appeal panel may grant leave only if the appeal panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a)the decision of the Tribunal under appeal was not fair and equitable, or (b)the decision of the Tribunal under appeal was against the weight of evidence , or (c)significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 21In the notice of appeal the appellant seeks leave to appeal on the basis that the decision made on 27 February was not fair and equitable as he was not present and did not receive notice of the hearings. The difficulty for the appellant is that the decision on 27 February 2014 is not the decision on which this appeal is based. This appeal is an appeal from the decision made on 2 May 2014 and the appellant does not assert that that decision was not fair and equitable. However, the appeal panel will consider the appeal on the ground that it seeks to assert that the decision of 2 May 2014 was not fair and equitable or against the weight of evidence. 22The appeal panel is concerned as to whether the central issue between the parties was adequately addressed on 2 May 2014. In the opinion of the appeal panel the central issue between the parties was the terms of the contract between the appellant and the respondent and, in particular, the scope of the responsibilities which the appellant agreed to undertake. The appellant asserts that that scope did not include supervision of the work of the waterproofer, tiler or painter. On the other hand, the respondent asserts that the scope of responsibility agreed to by the appellant did include agreeing to supervise that work. 23Before considering the decision of 2 May 2014 it is necessary to refer to the earlier decision. The decision of the Tribunal on 27 February 2014 does not contain a finding that the Tribunal accepted the evidence of the respondent that she engaged the appellant to undertake and supervise the bathroom renovation as asserted by the respondent. 24The decision of 27 February 2014 states that the applicant claimed she paid the respondent in accordance with the quotation. However both parties informed the appeal panel there was no quotation. There was an estimate prepared for the purpose of raising finance but not a quotation. 25In the opinion of the appeal panel the decision of 27 February 2014 treats the estimate as a quotation and therefore as evidence of the contract between the parties. Because both parties do not in fact contend that the estimate was the contract or evidence of the contract between them that decision cannot be described as one which reflects that the appellant's case was adequately put to the Tribunal. The decision of 2 May 2014 concludes the opposite, namely that the Tribunal was not satisfied that the appellants case was not adequately put to the Tribunal. 26The decision on 2 May essentially draws two conclusions. The first is that the Tribunal was not satisfied that the appellant's case was not adequately put to the Tribunal on 27 February 2014. The appeal panel has already commented on that conclusion. The second conclusion was that there was a contract between the parties other than for the limited purpose of plumbing work in the bathroom and that the contract also covered the appellant arranging for and supervising the work of tradespeople such as tilers and waterproofers. 27The decision of 2 May 2014 does not identify the evidence upon which the finding is made as to the terms of the agreement. However, because the decision effectively states that the appellant's case was adequately put to the Tribunal on 27 February 2014 it must be assumed that the decision of 2 May 2014 also relied on the estimate as evidence of the agreement between the parties. 28In view of what the parties contend as to the status of the estimate the appeal panel is not satisfied that the decision of 2 May 2014 was open to the Tribunal in so far as it purported to say that the appellant's case was adequately put to the Tribunal on 27 February 2014. 29For the above reasons the appeal panel is of the view that the decision of 2 May 2014 was not fair and equitable. Accordingly, the appropriate course is to give leave to the appellant to appeal, to uphold the appeal and order a rehearing. This result may seem harsh to the respondent who has been successful before the Tribunal on three occasions. Nevertheless, given the appeal panels analysis of the decision of 2 May 2014 the appropriate course is, as stated, to order a rehearing. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2014