This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 against a decision made in the Consumer and Commercial Division of the Tribunal on 26 September 2019.
The application to the Tribunal was brought by the respondents against the appellant. It is not in dispute that the application was a consumer claim within the meaning of s 79E of the Fair Trading Act 1987. The respondents sought an order that the appellant pay them $5000, being the refund of a deposit the respondents paid in respect of a contract for a wedding reception. The Tribunal found in favour of the respondents and made the money order sought.
The appellant, who was represented at the appeal hearing by Mr M Saadie, solicitor, claims that he was incorrectly named as a party to the proceedings and that the money order should not have been made against him.
For the reasons set out below, we have allowed the appeal, set aside the money order made in favour of the respondents, remitted the proceedings to the Consumer and Commercial Division for rehearing and joined Highline Event Centre Pty Ltd as a respondent in the remitted proceedings.
[2]
Background and Tribunal proceedings
The respondents paid a deposit of $5000 for a wedding reception to be held on 25 August 2019. They claim to have contracted with the Highline Venue. They subsequently cancelled the booking and sought a refund of the deposit.
The application to the Tribunal was lodged on 4 June 2019. In their application, the respondents described the issues in dispute as follows:
1. A refundable deposit paid in the sum of $5000 (Five thousand dollars) in the form of cash by applicant to respondent.
2. Proposed event could not go ahead, respondent failing to refund applicants deposit despite being told deposit would be refundable or be put towards event if the event went ahead.
3. No signed contract executed and sufficient notice (8 months) provided to applicant [sic] of being unable to carry out event (23/01/20190).
Attached to their application were documents including:
1. An ASIC Business Name Extract showing that The High Line Venue in Chapel Road Bankstown, with an address for service of a post office box at Bankstown Square, is a business name held by The Trustee for D2D Creations Trust, the representative of which is David Fam.
2. A statutory declaration dated 27 May 2019 by Bilal Taha relevantly stating that a deposit of $5000 cash was paid to Ryan Fox of The Highline Venue, that he and Danya Darwiche were advised that the deposit was refundable, that The Highland Venue was notified multiple times of their decision not to proceed with the booking and that a commitment to phone him to organise the refund was made after a meeting with John Fam (described as "Highline Venue Director"). The statutory declaration states that the refund was not given and that phone calls, text messages and emails have been unanswered.
3. Text messages, including to John Fam;
4. An "order summary" on a document with the letterhead "The Highline Venue", but with no company or business number; and
5. A letter of demand from the respondent Mr Taha dated 26 April 2019, sent by email to various email addresses, including an email address for John Fam and email addresses which include "highlineevents.com.au" and "thehighline.com.au".
The matter was first listed before the Tribunal for conciliation and hearing on 28 June 2019. The appellant did not appear at the hearing. The Tribunal made procedural directions and the matter was subsequently set down for hearing on 26 September 2019.
On 17 July 2019, the Tribunal's Registry received an email stating:
Hi NCAT
We have received an letter of notice of hearing (sic) however the Respondent details are incorrect.
The correct details should be:
Company Name: Highline Event Centre PTY LTD
CAN: 612986624
The email did not contain a signature block and the name of the sender could not be ascertained from the email sender details. It emerged during the appeal hearing that the email was sent from Little Saigon Plaza, which is the development in which the Highline Venue is located. According to Mr Saadie, the appellant arranged for the email to be sent to the Tribunal.
The Registry responded to the email on 18 July 2019, relevantly stating:
Good Morning,
I note your correspondence below, the correct name of the Respondent can be determined at the NCAT hearing on 26 September 2019. A copy of your correspondence has been placed on the file and a copy has been sent to the Applicant.
Ms Beaini, solicitor, appeared for the appellant at the hearing before the Tribunal. The appellant did not attend the hearing. Ms Beaini sought an adjournment of the hearing. She confirmed that the appellant is the trustee for the D2D Creations Trust. The appellant did not provide any evidence in defence of the application, either in response to the Tribunal's procedural directions or through his solicitor at the hearing.
The respondents had not filed any additional material in response to the Tribunal's procedural directions. The adjournment application was refused and the hearing proceeded on the basis of the respondents' oral evidence and the material attached to the application.
The Tribunal's reasons for decision relevantly record:
Ms Beaini acknowledged that her client has received a copy of the Orders made on 28 June 2019 but did not have a copy of the application. No evidence was provided by the Respondent and Ms Beaini submitted that she was instructed that David Fam was not the appropriate respondent.
In relation to the identity of the respondent, the Tribunal relevantly found:
On the evidence available to the Tribunal it is clear that the Applicants had dealings with The High Line Venue in October 2018 and paid that business the sum of $5000 as a deposit for their wedding. It is also clear on the evidence and instructions given to Ms Beaini that David Fam is the trustee of the D2D Creations Trust which holds the business name The High Line Venue and operates that business.
The Tribunal went on to find:
In the circumstances, the Tribunal is satisfied that the Applicants are consumers pursuant to the Australian Consumer Law (ACL). The contract was for the provision of wedding reception services by the Respondent subject to the provisions of the ACL. The Applicants advised the Respondent that the wedding reception would not proceed some time well before their email to the venue on 26 April 2019. The Applicants having given appropriate notice requested the refund of their deposit and that deposit has not been refunded. There has in the circumstances been a breach of clause 60 of the ACL and the Applicants are entitled to an order for repayment of their deposit.
The Tribunal ordered the appellant to pay $5000 to the respondents.
[3]
Scope and nature of internal appeals
Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law:
1. Whether there has been a failure to provide proper reasons;
2. Whether the Tribunal identified the wrong issue or asked the wrong question;
3. Whether a wrong principle of law had been applied;
4. Whether there was a failure to afford procedural fairness;
5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations;
6. Whether the Tribunal took into account an irrelevant consideration;
7. Whether there was no evidence to support a finding of fact; and
8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:
1. the decision of the Tribunal under appeal was not fair and equitable; or
2. the decision of the Tribunal under appeal was against the weight of evidence; or
3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:
… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
[4]
Submissions and evidence
In deciding the appeal, we have had regard to the following:
The Notice of Appeal and attached documents, lodged on 8 October 2019;
The Reply to Appeal lodged on 30 October 2019;
Submissions in support of the appeal, lodged on 12 November 2019 with annexures including the statutory declaration of Jeongseong Kim dated 8 November 2019;
The respondents' written submissions;
The submissions in reply;
The Tribunal's Notice of Order and reasons for decision, dated 26 September 2019;
The procedural directions made at callover;
The application lodged by the respondents on 4 June 2019;
The oral submissions made by and on behalf of the parties at the hearing.
[5]
Notice of Appeal
The Notice of Appeal was lodged on 8 October 2019, which is within the 28 day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules).
[6]
Grounds of Appeal
Relevantly, the appellant appeals the Tribunal's decision on the basis that the respondents did not have a contract with him. Rather, the appellant submits that the respondents' contract was with Highline Event Centre Pty Ltd. The appellant denies that he is an employee or representative of Highline Event Centre Pty Ltd and further denies that he met the respondents, took any money from them or entered into a contract with them. In this regard, the appellant relies on a statement and a range of documents attached to the statement which were provided in connection with the appeal, including:
1. The statutory declaration of Jeongseong Kim dated 8 November 2019; and
2. A copy of the wedding reception contract, which in his statutory declaration Mr Kim states was electronically accepted by the respondents on 19 October 2019.
In his statement, the appellant states that his family was involved in the development of "Little Saigon Plaza", a mixed development located in Chapel Road Bankstown. In or about July 2015, he registered the business name "The High Line Venue" in anticipation of running a function centre from premises in this development. Levels 3 and 4 of the development were later leased by Highline Event Centre Pty Ltd. The appellant states that his plans to operate a function centre were abandoned shortly after the lease was entered into.
In addition, the Notice of Appeal raises a finding made by the Tribunal's as to a breach of s 60 of the Australian Consumer Law (NSW) 2010 (the ACL). In relation to this, the appellant submits that
1. He did not supply in trade or commerce to any consumer services similar to those provided by the Highline Venue to the respondents.
2. He did not provide or agree to provide wedding event services or venue hire to the respondents.
3. The respondents sought a determination of whether a deposit was refundable in instances where they had terminated the contract for what the respondents referred to as "excruciating circumstances".
4. The respondents did not submit that the appellant or the Highline Venue had committed a breach of the consumer guarantee. The decision that s 60 of the ACL had been breached should not have been reached.
The appellant also seeks leave to appeal on the basis that the Tribunal's decision was not fair and equitable, was against the weight of evidence and new evidence is now available that was not reasonably available at the time of the hearing.
[7]
Australian Consumer Law - s 60
We will deal first with the appellant's submission in respect of s 60 of the ACL, which provides:
60 Guarantee as to due care and skill
If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
As noted above, the Tribunal hearing proceeded on the basis of the respondents' oral evidence and the documents they attached to the application. The respondents paid a deposit in respect of an agreement for the provision of wedding reception services. However, the booking did not go ahead, having been cancelled by the respondents some months before the wedding date. The case the respondents put to the Tribunal was that they had an oral contract which provided for a refundable deposit. There is nothing in the material before us to suggest that the respondents claimed that the appellant had failed to provide services with due care and skill. Rather, the respondents' case turned on their claim that no services had been provided because they had cancelled the booking and had been told that the deposit was refundable.
The Tribunal found that there was an oral contract between the parties at [6] of the reasons for decision. However, the Tribunal made no findings concerning the terms and conditions of the contract and in particular concerning the terms and conditions which applied if the respondents cancelled the booking. In our view, the Tribunal asked the wrong question in considering whether s 60 of the ACL had been breached rather than in considering whether the terms and conditions of the contract provided for a refund of the deposit if the respondents cancelled the booking. This amounts to a question of law. The appeal should be allowed.
[8]
Identity of the respondent
As noted above, the Tribunal made a finding of fact that the appellant was the contracting party.
In our view, it is difficult to characterise the Tribunal's conclusion in this regard as being not fair and equitable in circumstances where the respondent was aware that he had been named as a respondent in the proceedings, sent an inadequate email to the Registry in relation to amending the name of the respondent, provided no evidence in support of the claim that he was not the correct respondent and instructed a solicitor to attend the hearing on his behalf to advise the Tribunal that he was not the correct respondent without providing any evidence in support of that submission.
In relation to whether the decision was against the weight of evidence, the Tribunal's finding as to the identity of the respondent is not surprising in the absence of any evidence from the appellant and in circumstances where a business name search showed that the appellant (as trustee for the D2D Creations Trust) owned the business name The High Line Venue. We are of this view even taking into account the spelling of the appellant's business name (The High Line Venue) and the different spelling (The Highline Venue) in documents provided by the respondents.
The appellant cannot rely on the email sent to the Tribunal on 17 July 2019 to assert a claim that the decision was against the weight of evidence in circumstances where it is not clear who sent the email. Nor was it reasonable to expect the Tribunal to remove the appellant as a respondent in the proceedings on the basis of a submission made orally by a solicitor, when that submission was unsupported by any evidence.
Furthermore, the evidence that the appellant has provided on the appeal, in particular Ms Kim's statutory declaration, could have been provided prior to the hearing in accordance with the procedural directions made on 28 June 2019. Alternatively, the appellant could have appeared at the hearing on 26 September 2019, provided the documents to the Tribunal and sought to give evidence orally.
Had the Tribunal's not misdirected itself as to the relevance of s 60 of the ACL and failed to address the central issue of the terms and conditions of the contract, it is unlikely that the appellant would have been granted leave to appeal. Even accepting that there is a basis for the appellant's claim that he is not the correct respondent, the appellant placed himself in this situation by the manner in which he dealt with the proceedings before the Tribunal. During the hearing, Mr Saadie described his client as "naïve". In our view, the somewhat cavalier manner in which the appellant dealt with the proceedings goes beyond that descriptor.
[9]
Conclusion
In circumstances where a central finding concerning the terms and conditions of the contract entered into by the respondents has not been made, we are of the view that the appeal should be allowed and the matter should be remitted to the Tribunal for rehearing. It may be that the outcome would have been the same if the Tribunal had made findings about the relevant contractual provisions but we cannot make a firm finding that this would have been the case. Furthermore, the fact that material has now been provided which casts doubt on the existence of a contract between the appellant and the respondents is a further reason to remit the proceedings.
We note that the respondents do not accept that they brought proceedings against the wrong respondent. During the appeal hearing, they maintained that the appellant and his brother (John Fam) run the Highline Venue. However, Mr Jeongseong Kim's statement and his claim that the company of which he is a director contracted with the respondents, while not determinative of the issue, are nevertheless compelling. In these circumstances, we consider that the identity of the respondent should be tested in the remitted proceedings. New evidence should be allowed so that all parties can provide evidence as to both the identity of the respondent and the substantive issues in dispute.
It is appropriate to join Highline Event Centre Pty Ltd as a party to the proceedings before the Tribunal as it has a sufficient interest in the proceedings. Moreover, if the Tribunal in the remitted proceedings finds that the appellant is not the proper respondent, it would be just, quick and cheap for the Tribunal to be able to consider Highline Event Centre Pty Ltd's liability without the respondents having to commence new proceedings against that entity.
[10]
Orders
1. The appeal is allowed.
2. Order 2 made by the Tribunal on 26 September 2019 in proceedings GEN 19/26388 is set aside.
3. The proceedings are remitted to the Tribunal for rehearing, with new evidence allowed.
4. Highline Event Centre Pty Ltd is joined as a respondent in the remitted proceedings.
[11]
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: 10 January 2020