Gigg v Rodney Rodney Alan Wilks atf the Wilks Family Trust

Grounds of appeal

1. The Notice of Appeal lodged, within time, on 9 August 2018 said that it challenged in effect the refusal of the appellants' balance of claims, amounting to $10,024.50. This was said to be the balance of a total claim of $13,819.50 less the $3,795 awarded by the primary member and paid by the respondent.
2. The Notice of Appeal is not an easy document to understand. At points it was internally contradictory: the grounds of appeal said that the respondent completed only 58% of the work, but other parts of the Notice of Appeal referred to having to pay $3,300 to complete 58% of the work as missing. In the appellants' written submissions there was a document, which we were told was not before the primary member, headed "Reviewed and Revised Costs being sought" which claimed as the residual balance $10,876.10.
3. Having regard to the approach taken in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 in a situation where there was no legal representation, and having listened to the oral argument on the appeal hearing and reviewed the written material, we have sought to distil the grounds of appeal and deal with those items. We have then separately dealt with references to other items in the material before us.
4. The grounds of appeal that we have distilled were, in summary, as follows: 1. Having completed only about 42% (which appeared to be the preponderant usage) of the sub-surface irrigation system, the respondent ought to repay $6,600 (being the amount charged for but not supplied) rather than pay (as ordered by the primary member) only the $3,300 that the appellants paid to another supplier to complete the sub-surface irrigation system and which was the subject of the primary member's order. 2. The respondent charged double the periodic service fee of $150 to what the replacement servicer charged of $75 for subsequent periodic service fees, and charged for one periodic service not provided. The respondent ought to refund the entire service fee for the three services provided totalling $450 and the $150 for the service fee not provided. There was also reference to an advance payment on 20 April 2015 for a year's service fees that was a double charge because there were also individual charges for the 3 monthly services just mentioned and for the service allegedly not provided. There was further reference to a payment of $600 for service fees which we have taken to refer to the payment on 20 April 2015. We have taken the reference to the advance payment on 20 April 2015 to be to the $515 paid in the lump sum of $18,000 on that date over and above the contract price of $17,485. 3. The respondent installed an under-capacity pump and did not service it properly including according to the correct manual (the wrong one was initially supplied). Having 58% of the system missing caused the pump "to work twice as hard" leading to breakdowns of membrane and pumps with effluent blocking the membrane. As a consequence, the appellants' warranty was voided. A spare membrane that was charged for the replaced pump at $1,100 was stated in the application to be included in the quoted purchase price so should have been supplied rather than having to be purchased; a new company supplied a pump with higher capacity to replace the existing pump, together with other parts, totalling $2,260; a systems "electronic box" cost $50 to post to Victoria as part of the remediation; labour to replace a further broken pump was charged at $269.50. (In one part of the Notice of Appeal it was said that the respondent charged $110 for a service that ought to have been under warranty, but this claim was not repeated in the section of the Notice of Appeal listing the orders that the Tribunal should make.) There was no expert report but "common sense says that if only half the system is installed with a smaller size pump and not being service[d] according to the service manual leads to breakdowns no matter how many people service the system the person who initial[l]y does it wrong from day one voids the warranties and that was [the respondent] did this and is fina[n]cially responsible to reimburse us the costs which should have been covered by warranty". 4. The respondent was directed to put on its evidence for the primary hearing by 27 June 2018 and did not do so until the afternoon of 18 July 2018 which was only two business days before the hearing. The appellants were thereby denied the opportunity to obtain bank statements from a bank that they no longer dealt with (relating to closed accounts with that bank) and to contact witnesses including for an expert report. Those materials had now been obtained. The materials as described went to evidence on the under-capacity issue "asking if a 34mm high head pump specified what would be the blue Diva equivalent which come in 20mm, 30mm, 40mm was told 40mm you go up not down", and payment of three of the service calls at $150 per call. 5. There was an undissected lump sum claim of $500 for "court costs, photocopying ink cartridges, stationery, travelling costs to pick up replacement parts to Goulburn".

Applicable legal principles

1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) states: "Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."
2. Clause 12 of Schedule 4 to CATA states: An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision 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).
3. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
4. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel stated at [74]-[75] and [78]-[79]: 74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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. 75 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 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 because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), 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 then, 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 - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55].
5. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37] -[39]: 37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.' 38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]: 'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'
6. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.
7. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179; see also Kostas v HIA Insurance Services PL (2010) 241 CLR 390 at [91] and, in respect of having regard to a mandatory consideration, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41; in the Tribunal, see Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 2016 at [183]-[184]; Johnson v Lukeman [2016] NSWCATAP 272 at [8].
8. These categories are not exhaustive of errors of law. A failure to afford procedural fairness has already been mentioned. Since the Tribunal is under a statutory duty in CATA s 62 to provide reasons (Collins v Urban, above, at [43]-[64]), a failure to provide adequate reasons more generally raises a question of law: see, eg, Pollard v RRR Corporation PL [2009] NSWCA 110 at [56]; Qushair v Raffoul [2009] NSWCA 329 at [52] and following paragraphs.
9. CATA s 81 provides that, in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal. The section sets out a list of available orders which is not exhaustive. That list includes: allowing the appeal, setting aside the primary decision and remitting the whole or any part of the case to the primary level of the Tribunal for reconsideration, either with or without further evidence and in accord with the Appeal Panel's directions, varying the primary decision, or quashing or setting aside the primary decision and substituting another decision.

No error of law

1. The appellants did not in the Notice of Appeal say that the primary member made an error of law. We can discern no error of law in the primary reasons apart from potential errors which were not argued as such before us and which, in our view, make no difference to the outcome.
2. In dealing with the installation of less than the quoted and contracted area of sub-surface irrigation system the primary member referred, at [15]-[16] of her primary reasons (described in these reasons by a P in front of the paragraph number), to the appellants' claim for a refund of the part of the purchase price that correlated to the area of the sub-surface irrigation system not installed. The primary member rejected this claim, saying that the quoted and paid price was for more components than the sub-surface irrigation system (having set out the components at P[3]). The primary member went on to find that the appropriate relief was compensation in the amount paid by the appellants for the missing sub-surface irrigation system to be installed, being $3,300.
3. The primary member did not consider whether or not there was any basis for the claim to a refund at all. In our view this was an issue that needed to be considered and not considering it potentially constituted an error of law although it was not raised before us as such. However, in our view it would have made no difference to the primary member's conclusion that a refund was not the correct form of relief.
4. As the primary member correctly found on the evidence before her, there was no communication between the appellants and the respondent between May 2016 and March 2018, with the original application being lodged 18 April 2018. There was no evidence to suggest the appellant did not know of the missing area of sub-surface irrigation system during that period. There was no evidence of any reason that a complaint about the missing area was so delayed.
5. The primary member did not make findings on whether or not the non-installation of a significant part of the sub-surface irrigation system was a major failure. Even on the assumption that it was, it seems to us that the rejection period in relation to that missing area had well and truly passed by the time the refund claim was raised. Accordingly, the appellants had lost the right to claim a refund under the consumer guarantee remedies. Although it was not argued before the primary member, there would have been no basis for a finding of a claim of total or substantial failure of consideration under the supply contract, given what had been supplied.
6. This makes it unnecessary to consider the correctness of the primary member's comments that the $6,600 claimed by the appellants was the wrong proportion of an entire purchase price. As the appellants said, this was not 58% or 60% of the entire $17,485 but, rather, 58% of what the appellants said was the cost of the sub-surface irrigation system component of the entire purchase price. How that was dissected from the entire purchase price does not need to be gone into because there was no basis in law for a refund as the appropriate form of relief to be ordered.
7. The result on this issue is not affected because the primary member found that the appropriate remedy was compensation, as we have already said, in the amount of $3,300 charged by the supplier of the missing component of the sub-surface irrigation system. As we have said, the amount ordered to be paid, which included this amount, has been paid by the respondent and there is no cross-appeal.

No basis for grant of leave to appeal on questions of fact

1. The respondent advanced a case for grant of leave on all three bases in CATA Sch 4 clause 12 set out above, in respect of the subject matter of each ground of appeal.
2. Neither party complied with the Appeal Panel directions made on 28 August 2018 to provide, if the party was relying on what happened at the hearing, a typed copy of the relevant parts of the sound recording of the hearing. The appellants provided a document of selected references which was in part a paraphrase and in part commentary. Accordingly, we have considered the case for grant of leave on the basis of the material other than any record of the hearing itself.
3. As already mentioned, the primary member referred at P[16] to the respondent's concession that he had installed only 60% of the quoted and contracted sub-surface irrigation system (the small percentage variation between 58% and 60% is not significant). We have already dealt with the correctness of the primary member's conclusion on the form of relief. The amount of compensation was taken at P[17] from evidence of the amount charged to the appellants by another supplier to install the missing component. This accorded with the best evidence before the primary member.
4. In relation to the allegation of failure to honour warranties, the primary member at P[18] pointed to the absence of evidence before her of any faulty installation or initial service work by the respondent, together with the long period of nearly two years before complaint of pump failure and in which service work was carried out by another supplier. Her conclusion that the allegation was not made out was consistent with the evidence before her apart from assertions by the appellants that were not supported by appropriate objective evidence.
5. In relation to the allegation about overpayment of service fees, the primary member at P[4] pointed to the absence of any adequate explanation by the appellants as to why they paid $515 more than the quoted purchase price on 20 April 2015. At P[19]-[20] the primary member pointed to the evidence before her being that payment, an invoice dated 29 May 2015 for the $600 annual service fee, oral statements from the female appellant that the male appellant paid that invoice by funds transfer with no supporting documents, and a denial of receipt of such a $600 payment by the respondent together with a written statement that he had allocated the $515 to the annual service fee. The three service reports listed the items to be checked and ticked them. There was no independent contemporary evidence or expert evidence to support the appellants' assertion that the work ticked as done was not done.
6. The primary member's rejection of the overpayment claim was consistent with the evidence as it stood before her. It was also consistent with the payment of one annual service fee, rather than quarterly fees, being an entire contract for the year's services, with no entitlement to a refund for a service not provided because it fell after the termination by the appellants of the respondent's services. There was no evidence that the respondent accepted any other basis of service provision despite the appellants' protest. The government-accredited specification required an annual service contract.
7. The appellants argued that the respondent was not entitled to charge the entirety of an individual service fee on each service because substantial part of the irrigation sub-surface system was missing. This argument fails against the fact that an entire fee was charged and in the absence of sufficient material to demonstrate that there was a substantial failure of consideration for the service fee. What was there to be serviced was still significant.
8. The fact that the appellants' new service provider after May 2016 charged a different rate from the respondent was irrelevant to the contractual relations between the appellants and the respondent.
9. Part of the new documentary material produced on appeal by the appellants was three bank statements showing the payment of $150 shortly after the date of each of the first three service calls, totalling $450. The appellants raised the reception of this material as appropriate and a ground for leave to appeal, by reason of the respondent's delayed provision of evidence as already described.
10. The appellants' case since the originating application had always claimed overpayment of service fees. There was no suggestion that timely inquiry to the appellants' former bank could not have produced the payment records for inclusion in the appellants' evidence in chief at the primary hearing. It was not a matter that arose in reply to the respondents' evidence, even if that evidence was late. In any event there was no material before us to establish that the respondent's evidence was served late and just before the primary hearing.
11. There accordingly was no basis for saying that the now-produced bank statements were not reasonably available on the test that we have already described. There is no basis in them for a grant of leave to appeal. There was no bank statement showing any other payments in respect of service fees to the respondent.
12. However, in his written submissions in reply on appeal the respondent set out a reconciliation of the entire amounts charged to the appellants and payments received from the appellants including the $450 paid as shown on the bank statements produced on appeal. The respondent said, as the evidence showed, that only one invoice for $600 for four quarterly services in the year was issued (on 29 May 2015), not individual invoices for each service at $150 (the appellants asserted that an invoice was produced for each service, but no such invoices were in the evidence or the new material). The respondent said that the $150 payments were never allocated to the appellants as there was no invoice to allocate them to, there was an incorrect coding of the payments received so they were not allocated in the respondent's accounts to the credit of the appellants, and, if there had been communication over the nearly two years between May 2016 and March 2018 requesting a refund of an overpayment, "a refund would have been supplied", presumably if the material now available showing the payments had been provided in support of the request.
13. Without a sufficient ground for granting leave to appeal as we have already explained, we have no basis for ordering such a refund on appeal. We have simply noted what the respondent has said.
14. We also note that the respondent's reconciliation included payment of the $110 service callout fee for 13 April 2016 that was not a formalised complaint in the Notice of Appeal (as we have described earlier). It was common ground on the primary material that there was a callout. In the absence of objective evidence establishing that the call out was caused by defective work of the respondent or work otherwise within warranty, the respondent is entitled to be paid for attending in response to a call out by the appellants.
15. The primary member at P[22]-[24] dismissed the claim that a spare filter, which the appellants said they paid $1,100 for, was part of the quoted price. The primary member referred to the absence of reference to supply of a spare filter on the quotation dated 5 August 2014. The lump sum service invoice dated 29 May 2015 stated: "The membrane filter is a key component and requires cleaning at every service and may be removed and replaced with a spare filter during service so it can be cleaned in our test tank". In our view, the primary member correctly interpreted this as a suggestion to purchase or have available a spare filter, rather than the inclusion in the quoted price of a second filter. This was consistent with the respondent's explanation, referred to by the primary member, that he kept a spare filter to make available where a customer's membrane required specialist cleaning treatment (and there was no other spare filter).
16. The primary member at P[12(6)], [28]-[30] rejected the claim for $2,260 for cost of work done by a plumbing service business which included $720.69 for the cost of a new pump and reference to water filters and a missing return swing valve. The primary member discounted the weight of the statement by the employee of that business on the basis that the employee was a family member connected with the appellants and not experienced in the servicing of waste water treatment systems. The appellants did not deny that the employee was a family member as described by the primary member, only that the employee was a son-in-law, and said that the business owner was not related. This does not make the employee independent. The document does not meet the required standards of an expert report on the standard requirements for such reports. Those requirements appear on the Tribunal website and are referred to in Tribunal documentation available to litigants.
17. The appellants said that the pump was a different make from the branded membrane waste water treatment system. The quotation was for a lump sum with different categories of items. It did not specify the brand of the pump.
18. The appellants said that the pump supplied had to run at maximum capacity given it was just above the specified dimension and therefore wore out quicker. There was no independent expert evidence before the primary member to establish this consequence. The commentary in 2018 by other suppliers put forward by the appellants to the primary member was not in the form of expert reports. That commentary also was not supported by evidence properly establishing that what was present and being commented on in 2018 was what was installed in 2015 and last serviced by the respondent in early 2016. The respondent's put forward to the primary member material from the pump supplier which was submitted to demonstrate that the pump supported system requirements.
19. The primary decision accorded in our view with the weight of evidence.
20. To the extent that there was said to be, in the Notice of Appeal and supporting documents lodged with it and the appellants' written submissions, other expert commentary now provided to the contrary of the primary member's findings, we repeat in this context what we have already said in respect of the recently-produced material on another aspect of the appeal, being the bank statements. The appellants' case since the originating application had always claimed for replacement of an alleged under-capacity pump. There was no suggestion that a timely independent and properly-formulated expert report on that topic could not have been obtained for inclusion in the appellants' evidence in chief at the primary hearing. It was not a matter that arose in reply to the respondents' evidence, even if that evidence was late. In any event there was no material before us to establish that the respondent's evidence was served late and just before the primary hearing. The new commentary suffered from the same defects that we have described for the limited amount of 2018 commentary before the primary member.
21. There accordingly was no basis for saying that any new expert material on pumps was not reasonably available on the test that we have already described. Even if there had been such a basis, the material would not have advanced the appellants' case to a different conclusion so as to be able to say that the appellants suffered a substantial miscarriage of justice by its non-inclusion . There is no basis for a grant of leave to appeal.
22. The primary member correctly rejected at P[31]-32] the claim for sundry items of expense on the basis of an absence of evidence. Some of that evidence was sought to be supplied on appeal but clearly was reasonably available at the primary hearing. Some items were costs connected with the conduct of the proceedings and not claimable unless there was a basis for a costs order.
23. For completeness, we note that the primary member dealt with other claims at the primary hearing that did not appear in the Notice of Appeal but which had mention in the course of the hearing in both written submissions and oral argument. We consider the primary member determined those in accord with the weight of evidence, fairly and equitably at P[25]-[27] and P[35]. 1. The geotechnical report cost, which the appellants paid then later complained about, was expressly excluded from the quotation and was a requirement for the appellants to obtain development consent. The geotechnical expert had records that showed the respondent had been instructed by the house designer to obtain the report. The newly-found email put forward on appeal, even if not reasonably available for the primary hearing (on which there is insufficient proof), takes the matter no further as it is simply a complaint and the evidence before the primary member is of greater weight so the appellants suffered no substantial miscarriage of justice. 2. The primary member correctly rejected a claim for $1,639 for replacement parts on the basis that the document put forward to support it, dated the day before the proceedings were lodged, did not identify the author, did not otherwise qualify as expert opinion, and did not indicate if the work had been done. The primary member pointed to the absence of work by the respondent on the system since April 2016, the working life of membranes and a report by one of the respondent's employees, from an inspection on 11 July 2018, that the system showed signs of misuse, including cleaning and other antibacterial materials. The appellant asserted various criticisms of the employee's report, but these were not substantiated by independent objective evidence. The primary member gave less weight to the employee's report because of the employment relationship. However, the employee's observations were supported by photographs and were consistent with warnings in the operating manual that such misuse voided the membrane warranty. A geotechnical report put forward by the respondent came to the same conclusions as the employee on seeing the photos. 3. The primary member awarded half ($495) of the $990.19 paid by the appellants for pump repairs, on the basis that they appeared on the evidence to be the result of a mix of factors: the initial failure to install the full sub-surface irrigation system putting an extra load on the pump; the limited life of pumps and their need for usual maintenance; possible misuse by the appellants through some inappropriate material put into the system. That appears to us not to be against the weight of evidence or not fair and equitable, in the absence of any attempt by the appellants to refine causation. 4. There were allegations in the written material of sub-standard parts which formed part of the material said to support other complaints and claims for relief. The respondent said that the systems were supplied as a whole by the manufacturer. The photos of the pump appeared to show an integrated unit. The operating manual suggested that the branded treatment system was supplied as an integrated and complete unit. The appellants did not advance any objective evidence sufficient to discharge the burden of proof they bore.

Outcome of substantive appeal

1. The appeal accordingly fails on its substantive grounds. We set out our orders below.

Costs of appeal

1. The parties were self-represented but the appellants, as already mentioned, claimed some expenses connected with the proceedings that were not claimable unless there was the basis for a costs order.
2. Rule 38A of the Civil and Administrative Tribunal 2013 (NSW) (Rules) applies the same costs rules as applied in the Division when there is a departure under the Division rules (such as under Rule 38) from CATA s 60.
3. The amount claimed or in dispute in the proceedings did not exceed $30,000 so as to invoke CATA Rule 38. Accordingly, Rule 38A has no work to do and CATA s 60 applies to costs of the appeal. CATA s 60(3) requires special circumstances to be established for an award of costs and sets out examples of what may constitute special circumstances. Nothing before us indicated special circumstances.

Orders

1. The orders we accordingly make are as follows: 1. Leave to Appeal is refused. 2. The Appeal is dismissed.

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: 26 November 2018