Foremost Electrical Pty Ltd v Moore

The Tribunal's Reasons

1. The Tribunal noted that the contractor had issued a summons for the attendance of the homeowners' witnesses. These witnesses did not attend the hearing. The contractor was asked if it wished to adjourn the matter to arrange those witnesses to attend, but the invitation to apply for an adjournment was declined.
2. The Tribunal noted the facts outlined above leading to the issuing of the original tax invoice in the amount of $19,753.80, the fact that the invoice was partly paid, that the homeowners had paid $14,400 towards the invoice with an amount of $5,353.80 unpaid. In its written reasons, the Tribunal set out other findings of fact which it is not necessary to repeat here.
3. The Tribunal at par [12] characterised the dispute by identifying that the homeowners had accepted the costs of the materials but sought clarification from the contractor for a breakdown of the labour charges; the contractor did not provide an itemised tax invoice for labour; the homeowners paid the contractor for all materials and a part payment of $4,500 towards labour charges which, the Tribunal found, represented 55.2 hours of a total claim of 113 hours for labour.
4. The Tribunal found that the contractor had to date refused to itemise the labour charges. This failure was characterised by the Tribunal as "the tax invoice has no description of the work performed on any of the dates referred to in the tax invoice. It simply states the number of hours the contractor and an assistant attended each day."
5. The homeowners presented evidence that the amount charged was excessive. This was by way of an expert report from a Mr A Trejbal of ABT Constructions Pty Limited dated 1 August 2017. However, this evidence was disputed by the contractor and the Tribunal based its ultimate decision, not upon the basis of overcharging, but upon the basis that the contractor had failed to provide adequate itemisation of the work undertaken during the times claimed. The Tribunal noted the itemisation provided was simply a date with the number of hours worked and the hourly rate.
6. The homeowners argued that they were entitled to a description of the work performed on the particular days. The Tribunal ultimately accepted this and decided, at par [27] of its reasons, that given the contractor's failure to provide the homeowner with a properly itemised schedule for the labour undertaken on the nominated days and the time taken for the tasks, then the homeowner was not liable to pay the contractor for the amount claimed. The Tribunal made the orders set out above.

Appeal Panel Directions

1. The Notice of Appeal was filed on 30 November 2017.
2. On 9 January 2018, the Appeal Panel made directions for the management of the appeal, including that both parties file materials on which they proposed to rely. Those materials could include evidence, submissions and a sound recording of the Tribunal proceedings.
3. Neither party provided any further information or documents following the directions of the Tribunal on 9 January 2018.

Notice of Appeal

1. The exact grounds of appeal where not clearly stated in the Notice of Appeal, but at the hearing before us the contractor said that the Tribunal erred in finding that it had failed to supply an itemised invoice when the invoice which it had supplied complied with statutory requirements. The contractor said that this was the essential ground of the appeal.
2. The Notice of Appeal does make it clear that the contractor is seeking leave to appeal on the basis the decision was not fair and equitable or was against the weight of the evidence. There was no allegation that significant new evidence is now available that was not reasonably available at the time of the hearing.

Extension of Time

1. The Notice of Appeal was filed on 8 December 2017. In the Notice of Appeal, the contractor states that it received notice of the Tribunal's decision on 9 November 2017. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 provides for a 28 day period for the filing of an appeal. That period commences from the day on which an appellant is notified of the decision appealed from. Accordingly, the contractor was one day late in filing its Notice of Appeal.
2. Mr Byers told the Appeal Panel that the reason for the delay was pressure of work and his lack of opportunity to attend the Tribunal in person in order to submit the papers.
3. The homeowners objected to the extension of time, saying the contractor had plenty of opportunity to comply.
4. The principles for the extension of time are well known and summarised in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. It is not necessary to repeat them here.
5. In our view, an extension should be granted because the length of the delay is very short being only one day, the contractor gave an acceptable reason for the delay being pressure of work, the grounds of appeal could not be said to be unarguable, no relevant prejudice has been identified by the homeowners and the interest of justice and the need to ensure that time limits are generally observed would not require the refusal of an extension in this case (see also Rekrut & Scott v Champion Home Sales Pty Limited [2017] NSWCATAP 187 at [63] - [65]).

Right of appeal

1. This is an internal appeal pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). The appeal may be brought as of right on a question of law or, with the leave of the Appeal Panel, on other grounds. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act leave to appeal may only be granted under s 80(2)(b) if the Appeal Panel is satisfied an appellant may have suffered a substantial miscarriage of justice because:

• the decision of the Tribunal under appeal was not fair and equitable, or
• the decision of the Tribunal under appeal was against the weight of evidence, or
• significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarised at [71] and [79] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred.
2. Even if an appellant from a decision of the Consumer and Commercial Division satisfies the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). As was explained in Pholi v Wearne [2014] NSWCATAP 78 at [32]: Even if the appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
3. Also see Collins v Urban at [84] to similar effect.

Whether there was an error of law

1. The contractor did not raise an error of law in the Notice of Appeal; nor did he agitate an error of law in argument before the Appeal Panel. In circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [11].
2. The contractor has not identified any arguable error of law. We have examined the Notice of Appeal. We have not identified any arguable error of law. Accordingly, in our view, the contractor requires leave to appeal in respect of any other claimed error.
3. There being no error of law established, the appellant requires leave to appeal.

Whether leave to appeal should be granted

1. The principal argument made by the contractor was that an itemised invoice had been provided. The contractor took the Appeal Panel to a copy of invoice 1869 dated 7 December 2016.
2. However, after discussion it appeared that there were a number of different versions of invoice 1869 all with the same date. The Appeal Panel had to determine which version was accepted by the Tribunal as the basis of its decision.
3. One version before the Tribunal and now before the Appeal Panel was item 5 in the contractor's bundle with the amount alleged to be owing up to the date of the Tribunal hearing as $6,962.92. This invoice included a number of entries for interest and administration charges pursuant to the "Terms of Trade" but it appears that this version was not accepted by the Tribunal as the appropriate version because the final amount owing does not match the amount of the order made and because the additional items for interest and administration charges were found to be not part of the oral contract between the parties.
4. Item 6 in the contractor's bundle was headed "a break-up of materials and labour as requested". This was before the Tribunal and the Appeal Panel. It appears to be the version accepted as the relevant one by the Tribunal because the arithmetic matches the amount found by the Tribunal to be the unpaid under the invoice (being the total invoice amount $19,753.80 less agreed amount paid $14,400.00 leaving $5,353.80 unpaid, which is the amount specified in the Tribunal's order).
5. We accept that Item 6 in the contractor's bundle is the correct version to determine the appellant's argument. We note that none of the other versions in the bundle had more particulars concerning the labour charges.
6. The Appeal Panel notes that although Item 6 had more detail in relation to materials, it particularised labour by way of date, number of hours and hourly rate. It did not have any description of or detail of the work performed on the individual day. The absence of this detail is the critical factual issue for the appeal.
7. There was no additional evidence provided to the Appeal Panel to further itemise the labour charges, apart from that provided in Item 6. There was no new evidence in the appeal on this issue.
8. The homeowners argued the Tribunal's decision should be upheld, saying that they were entitled to a detailed invoice in order to understand the claim for labour.
9. The contractor argued that the information in the invoice (ie. Item 6) regarding labour was sufficient and said it was not required to provide more.
10. The contractor took the Appeal Panel to s 13 of the Building and Construction Industry Security of Payment Act 1999. Section 13(2)(a) requires that a claim for payment must identify the construction work (or related goods or services) to which the progress payment relate. We consider that not only does this not provide much guidance as to the requirements for particulars of materials and labour in the present situation, but relates to a payment claim made under that Act which is not the situation here. What the contractor sought was payment of a debt rather than a payment under the Building and Construction Industry Security of Payment Act.
11. The contractor also took the Appeal Panel to an outline of an itemised bill under the Australian Consumer Law (item 4 of the appellant's bundle) which provides that a consumer must be supplied with an itemised bill if requested. It provides the number of labour hours and the hourly rate must be specified. The appellant said that his tax invoice provided those details and he is not required to provide any further detail. However, the Australian Consumer Law sets a minimum standard and is not determinative of the reasonable information required in the particular circumstances of this case.

Other factual findings challenged

1. The contractor sought to challenge two other factual matters in the reasons including:

• whether the homeowner had paid the contractor for the cost of all materials; and
• the finding that the agreement was wholly oral and the "terms of trade" had been agreed to by this part of the contract.

1. In respect of both of these arguments the contractor did not submit that the findings were wrong in law. It sought to argue that the findings were against the weight of the evidence or were not fair and equitable.
2. However, the contractor was unable to point to any arguments that had not been considered by the Tribunal. There was no new evidence on these issues. The Appeal Panel did not find any error in the fact finding by the Tribunal in respect to these two arguments.

Analysis of whether leave ought to be granted

1. The contractor asked the Appeal Panel to accept that reasonable particulars had been provided by the contractor in its invoice (item 6).
2. The Appeal Panel considered the contractor's arguments did not raise sufficient doubt about the factual finding by the Tribunal below to satisfy the limitations imposed by cl 12 of Sch 4 of the NCAT Act for the granting of leave to appeal.
3. This is because the homeowners had received an invoice for $19,753.80, more than $9,000 of which were labour charges. The homeowners requested further details. The contractor did not provide any further details of the labour charges apart from date, hours and rate. No reason for the lack of detail was offered. The Tribunal found that in these circumstances, the contractor failed to provide reasonable particulars. In the circumstances of this case, the Tribunal below found further particulars were required against the background of a reasonable demand.
4. The Appeal Panel is satisfied this finding was not against the weight of the evidence, nor was it not fair and equitable, in the context of this claim. The Appeal Panel finds the appellant has not been deprived of a significant possibility or a chance which was fairly open: Collins v Urban at [76]- [79].
5. If the Appeal Panel is wrong on this issue, for completeness it notes that that even if cl 12 of Sch4 were satisfied it is unlikely that leave pursuant to s 80(2)(b) would be granted because there is no issue of principle involved, no question of public importance, no reasonably clear injustice and there is no clear mistake nor error in the fact finding process: Collins v Urban at [84].
6. The Appeal Panel is not persuaded that the Tribunal erred in a relevant respect. Accordingly, the application for leave to appeal is refused, and the appeal is otherwise dismissed.

Orders

1. For the above reasons, the Appeal Panel orders: 1. the time for filing the Notice of Appeal is extended to 8 December 2017; 2. leave to appeal is refused; 3. the appeal is otherwise dismissed.

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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 April 2018