Daley v Flynn

Background 1This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal made on 2 May 2014. That decision dismissed the appellant's application to set aside an earlier decision of the Tribunal made on 27 February 2014. The earlier decision of 27 February 2014 resulted in an order that the appellant pay to the respondent the sum of $7,378.90. 2Unfortunately, these proceedings have some protracted history and it is necessary to explain what led up to the decision of 2 May 2014. 3The respondent to this appeal, who is the homeowner, contends that she engaged the appellant to undertake some refurbishment work at her home. The respondent was dissatisfied with that work and commenced proceedings in the Tribunal's predecessor against the appellant in 2013. Those proceedings were heard in October 2013 in the absence of the appellant. The appellant applied for a rehearing and the former Tribunal granted a rehearing by an order made on 11 November 2013. The proceedings thus far described all occurred in the Consumer, Trader and Tenancy Tribunal which was abolished on 1 January 2014. Its jurisdiction was taken over by this Tribunal. 4As a result of the order made on 11 November 2013, this Tribunal heard the proceedings on 27 February 2014. Those proceedings were heard in the absence of the respondent. 5The relevant parts of the reasons for the decision made by the Tribunal on 27 February 2014 are as follows: The applicant seeks an order that the respondent pay her compensation for the cost of rectifying work on her bathroom, carried out by the respondent pursuant to an oral agreement in late 2010. The work was completed in early 2011. The applicant relies upon a folder of documents filed in proceedings HB 13/31061, and a report of Sherlock Holmes Inspection. In the absence of the respondent, the Tribunal also had regard to the respondent's expert report. The applicant gave evidence that she engaged the respondent to undertake and coordinate the bathroom renovation. The estimate which he gave to the applicant confirmed the respondent undertook the coordination of the tiling, waterproofing, lining of walls and plumbing. The applicants states that she paid the respondent in accordance with the quotation. Sometime later she noticed that water was pooling in the corner of the bathroom. The respondent denied that it was any part of his work which was defective. However, both expert reports confirm that the leaking is caused by a failure to provide a water stop. In addition, the applicant's expert has identified the need to replace the particle board flooring which has been damaged by the leaking. Both experts note that the floor has inadequate fall, contributing to the issues, and the applicant's expert identifies a breach of the water proof membrane. The Tribunal accepts the evidence of the applicant's expert. The more extensive scope of works is accepted as being necessary. The Tribunal does not accept the respondent's expert statement that the fall on the water was not part of the contract. The work done must result in a floor which is fit for purpose, and accordingly the respondent was required to correct any inadequacy as an essential part of the contract works. 6The appellant filed an application in March 2014 seeking a rehearing of the hearing which had occurred on 27 February 2014. The application was expressed as an application under the CTTT Act for a rehearing under section 68 of that Act. As the Act had been repealed and the Tribunal abolished, this Tribunal treated the application as an application to set aside the orders made on 27 February 2014. Directions were made for the filing and service of evidence and that application came before the Tribunal for hearing on 2 May 2014. Both the appellant and the respondent were present at that hearing. 7The Tribunal delivered its decision on the same day (2 May 2014) and made an order that the application to set aside the orders made on 27 February 2014 be dismissed. There was a further order that the order made on 27 February 2014 remains in full force and effect. Those parts of the reasons for the decision that are relevant to this appeal are set out as follows: The Tribunal is not satisfied that the absence of the applicant at the hearing on 27 February 2014 resulted in a lack of procedural fairness to the applicant. Other than the applicant's further timeline of events (received by the Registry on 26 March 2014), the presiding member had before her all of the applicant's documents including the report of Mr Rosa and it is tolerably clear that she had regard to Mr Rosa's report in making her determination. Her reasons state, relevantly: "The Tribunal accepts the evidence of the applicant's (the homeowners) expert. The more extensive scope of works is accepted as being necessary. The Tribunal does not accept the respondent's (Mr Daley's) expert statement that the fall on the floor was not part of the contract. The work done must result in a floor which is fit for purpose and according (sic) the respondent was required to correct any inadequacy as an essential part of the contract works." 8The Tribunal then went on to say: "Although the order made on 27 February 2014 was made in the absence of Mr Daley the Tribunal is not satisfied that Mr Daley's case was not adequately put to the Tribunal on that occasion. The findings set out above are sufficient to dispose of the application by dismissal. However, if the Tribunal had decided issue (a) differently and set aside the order the order of 27 February 2014, the Tribunal is satisfied on the basis of the evidence it heard today that the homeowner Ms Flynn (the respondent on this application) has successfully made out a case for a money order..." [Issue (a) was whether the order made on 27 February 2014 should be set aside] 9And the Tribunal continued: "The Tribunal accepts Ms Flynn's evidence. It finds that there was a contract between the parties other than for the limited purpose (on Mr Daley's case) of plumbing work in the bathroom of Ms Flynn's residence. The Tribunal finds the contract between the parties also covered Mr Daley arranging for and supervising the work of trades persons such as tilers and water-proofers. The Tribunal is satisfied that the works carried out in the bathroom under Mr Daley's supervision were defective and non-compliant with the Building Code of Australia. In this regard, both experts concur."