Gu v J & W Home Loan Pty Ltd - [2018] NSWCATAP 26 - NSWCATAP 2017 case summary — Zoe

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Gu v J & W Home Loan Pty Ltd

[2018] NSWCATAP 26

NCAT Appeal Panel|2017-10-19

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Source facts

Court

NCAT Appeal Panel

Decision date

2017-10-19

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

Overview

The appellant, Ms Gu, appeals from a decision dismissing her claim for compensation against the respondent, J & W Home Loan Pty Ltd ("J & W"). J & W is a franchise company providing finance broking services. It trades under the name "The Loan Market". Ms Gu's claim was based upon complaints concerning the services she received from J & W in connection with her purchase of a property on the Princes Highway at Corrimal in New South Wales (the Property).
Central to those complaints was Ms Gu's evidence that she made it clear to Ms Winnie Liang, who handled the matter on behalf of J & W, that the Property was a commercial property. The Tribunal Member did not accept that evidence and also decided that he was unable to conclude that Ms Liang had been negligent in the supply of her services.
For the reasons set out below, we dismiss Ms Gu's appeal and, to the extent she sought leave to appeal, we dismiss that application.

[2]

Factual Background

At the hearing at first instance, both parties were unrepresented, although Ms Gu had the assistance of her husband, Mr Bates. He had once been a finance broker.
It is clear from the reasons of the Tribunal that the detailed facts were far from clear.
As we understood it, on the appeal the following facts and matters were uncontroversial (in saying this, we do not include as uncontroversial various explanations of her conduct given by Ms Liang to which we refer): 1. In April 2015, it seems that Ms Gu became interested both in re-financing four residential loans she had with Westpac and in obtaining additional funds to buy the Property. 2. On or about 15 April 2015, Ms Gu met for the first time with Ms Winnie Liang of J & W. There was a dispute between Ms Gu and Ms Liang as to what Ms Gu conveyed to Ms Liang on that occasion. Ms Gu's written submissions on appeal (paragraph 5) state that Ms Gu informed Ms Liang of "her financial needs" but do not otherwise specify what findings the Tribunal should have made as to what was said at this meeting. 3. Thereafter, Ms Gu and Ms Liang mainly communicated by telephone, email and WeChat messaging. No email or WeChat message referred to by the Tribunal or by the parties contains a communication from Ms Gu that sets out the funding request that she wished J&W to assist her to obtain or which contains specific information about the Property. 4. No written contract between Ms Gu and J & W was entered into. 5. It seems that on 19 April 2015 Ms Liang completed an on-line loan application to the St George bank for the re-financing element of Ms Gu's financing wishes. At some point a re-financing by St George of the existing loans from Westpac was approved and accepted by Ms Gu. In the Tribunal, but not on appeal, Ms Gu complained that, contrary to what she was told by Ms Liang, she incurred substantial charges from Westpac in effecting this change of lender. 6. In a WeChat conversation on 4 May 2015 (in Chinese, but translated into English), Ms Gu asked Ms Liang whether she needed to apply for a mortgage in respect of the new property, Ms Liang told her she did and that after she signed the contract to purchase the Property she should send it to Ms Liang for her to do a new loan application. Ms Liang also told Ms Gu that the re-financing loan had been approved, and that she could go ahead and sign the contract to purchase the Property. Ms Gu told Ms Liang that she was talking about the mortgage "for my new house" and Ms Liang said there was no problem applying for a loan for "your new house", she could still use overseas income for that application and it would take about a week for that new loan to be approved. 7. Ms Liang's explanation for such advice was that having just obtained the re-financing from St George she believed she could get another residential loan for Ms Gu from St George to buy the Property, that Ms Gu had never told her it was a commercial property, and that what Ms Gu had told Ms Liang was that she wanted to buy a four bedroom house with one room renovated to a shop and that she was going to live in the house. 8. On 5 May 2015 Ms Gu signed and exchanged the contract to buy the Property. She did so after making a telephone call to Ms Liang from her solicitor's office in which Ms Liang said that the new loan to buy the Property would be no problem and that Ms Gu could sign the contract. The completion date for the purchase was 16 June 2016. 9. In a WeChat conversation on 6 May 2015, Ms Liang asked Ms Gu when does "the shop" settle and was told by Ms Gu that she had signed the contract and the next instalment was to be paid in 28 days. Ms Liang told her that they could definitely make it. Also on that day, there was a subsequent WeChat exchange between them in which Ms Liang said to wait until the valuation report was complete before applying for the new loan and that "your commercial loan needs real estate help to prepare a lease". In the hearing before the Tribunal this exchange had a handwritten translation to this effect. On the appeal, Ms Gu supplied a formal translation of this latter conversation, which was relevantly similar. 10. An email from Valuation Management Services to Ms Liang dated 11 May 2015 at 10:18, stated: Delay Reason: Awaiting Authorisation: Property has a 45sqm office/commercial shop at the front which is out of scope for a property pro report. Please escalate to a long report for a fee of $825 inclusive. 1. By an email dated 22 May 2015 from Ms Gu's solicitor, Ms Liang was provided with details of a FIRB approval for Ms Gu's purchase of the Property on condition that the Property was used as her principal place of residence. 2. A residential loan application for funding to purchase the Property was approved on 26 May 2015 but could not be proceeded with because of the commercial nature of the Property. 3. By 3 June 2015, another finance broker (Mr Underhill) was involved in obtaining the new loan for Ms Gu. 4. By email dated 11 June 2015, Mr Underhill sent Ms Gu a loan offer on a 65% loan to value basis. 5. On 11 June 2015, there was a series of WeChat conversations between Ms Gu and Ms Liang in which Ms Gu was critical of Ms Liang's work. 6. Ms Gu and the vendor of the Property agreed to rescind the contract and they entered a new contract dated 1 July 2015 with a completion date of 7 August 2015. The purchase price in the new contract was increased by $7,200 to reflect interest accruing after the failure to complete by the original completion date. This increase led to additional stamp duty of $324. Additional legal fees were also incurred. 7. Settlement of the purchase of the Property occurred on 7 August 2015.

[3]

Ms Gu's case before the Tribunal Member

In her application lodged in the Tribunal on 14 April 2016 Ms Gu sought an order that she be paid $27,000.00. Her reasons for seeking that amount were stated to be: My wife suffered costs including penalty interest, brokerage fees, extra legal costs and other costs as a consequence of Ms Liang's misrepresentations and incompetence.
In the application it was contended that Ms Liang had offered to assist Ms Gu to raise finance to purchase a "small commercial property". It was contended that Ms Liang requested of Ms Gu that she be allowed to refinance the entire portfolio of Australian properties owned by Ms Gu and that in early May 2015 Ms Liang actively encouraged Ms Gu to sign a contract for the purchase of the Property saying that she had everything in hand and that finance would be forthcoming. It was also contended that Ms Liang promised Ms Gu that she had considerable experience in such matters, that she had the necessary experience and industry contacts and that Ms Gu could safely entrust all of her mortgage business to her.
It was contended that Ms Liang did not have the necessary experience, contacts and formal industry accreditations necessary to competently and successfully undertake and complete the mortgage finance for a "small commercial property". It was contended that Ms Liang did not admit her inadequacies until June 2015 when Ms Gu was about to face a formal Notice to Complete at which time Ms Liang admitted that she was only, in fact, a residential broker. It was contended that it then became clear that, whilst Ms Liang had refinanced the residential portfolio of loans, the more difficult commercial mortgage facility was completely beyond her expertise, training and range of accreditations. It was contended that, immediately thereafter, Ms Liang gave up on seeking to arrange the commercial finance, leaving Ms Gu and Mr Bates to deal with the damage and costs that Ms Liang's alleged incompetence and delays had caused.
The procedural history of the matter in the Consumer and Commercial Division of the Tribunal was complicated but, ultimately, the matter came before the Tribunal for hearing on 22 September 2016.
By a decision dated 12 December 2016, the Tribunal dismissed Ms Gu's application.

[4]

The Tribunal decision

At the hearing before the Tribunal, Ms Gu quantified her claim as being for the total amount of $30,376.71 made up of 12 items: [15] of the Reasons.
The Tribunal identified that Ms Gu's application was a consumer claim brought in relation to the provision of financial services. The Tribunal determined that it had jurisdiction to determine the claim pursuant to Section 79K of the Fair Trading Act 1987 (NSW).
The Tribunal described Ms Gu's case as one in which she contended that she would not have incurred various fees, penalties and interest charges had Ms Liang provided the services she had contracted to provide or had the experience, training or contacts to provide such services: at [14]. Later, the Tribunal described Ms Gu's case, in general terms, as being that problems and delays caused by Ms Liang had resulted in additional expense for Ms Gu: at [52].
It should be noted that it is clear that Ms Gu's case before the Tribunal was not a no transaction case in the sense of an allegation that Ms Liang's advice or representations induced her to enter the contract to buy the Property which she would not have otherwise bought. In this regard, Ms Gu did not contend that she was financially worse off as a result of buying the Property compared to the position she would have been in had she not made the purchase.
It is apparent from the terms of Ms Gu's application that a central factual contention in her case was that from or near the commencement of her dealings with Ms Liang she had communicated to her that the Property was a commercial property as distinct from a residential property.
For present purposes, relevant conclusions of the Tribunal were that: 1. The details of any contract between Ms Gu and J & W could not be determined: at [41]. 2. In the absence of any notes or other written material the Tribunal was unable to determine what was said by each party in the early meetings between the parties: at [42]. 3. Ms Liang did not claim that she could change the zoning of the Property to residential (a reference to a narrative entry in a chronology in the Reasons for the date of 24 April 2015): at [44] and [45]. In any event, it was not believable that Ms Gu would accept such an assertion: [45]. 4. Ms Liang was not aware of the commercial nature of the Property until on or about 11 May 2015 when she received information whilst awaiting the valuation: at [48]. The information referred to appears to have been that contained in the email dated 11 May 2017 from Valuation Management Services. The Tribunal concluded that Ms Liang was surprised to find that the Property was a commercial property: at [50]. It is clear enough that in so finding, in conjunction with the finding in (2) above, the Tribunal did not accept that Ms Gu had told Ms Liang on 17 April 2015, or earlier, that the Property was a commercial property: at page 14 of the Reasons. 5. Ms Gu had not established that she instructed Ms Liang to wrap up the refinancing and the new loan for the Property in one transaction with a major lender: at [49]. 6. Furthermore, Ms Gu had not established that a financial arrangement of the kind referred to in (5) could be achieved given that four of the properties were residential and one was commercial: at [49]. 7. Ms Liang considered that the best way to proceed was to refinance the residential properties and seek an additional mortgage for the Property (but not on the basis that the latter would be a commercial loan). Ms Liang advised Ms Gu many times that this was possible and would cause no problems: at [50]. 8. Whether Ms Liang was incompetent or negligent in not appreciating at an earlier time that the Property was a commercial property was not established on the evidence: at [51]. There was no independent evidence as to what was expected of a financial broker in Ms Liang's position. 9. There was no explanation for J & W's alleged liability for each of the items of loss sought by Ms Gu: at [54] - [61].
Of relevance to the appeal, the Tribunal summarised in broad terms Ms Liang's evidence as consisting of three collections of documents: at [18] to [20].

[6]

The grounds of appeal

The Grounds of Appeal set out in the Notice of Appeal dated 6 January 2017 are as follows: The Respondent never served the Applicant with any material. On 8 August 2016, NCAT ordered the Respondent to "provide to the applicant and the Tribunal either in person or by post, a copy of any further documents (see note below), on which the respondent intends to rely at the hearing by 05-Sep-2016". The Applicant was denied natural justice as the Respondent never served any material upon her. This came to light only after the Applicant sought advice after the hearing. The applicant was self-represented at the hearing and did not appreciate the procedural unfairness.
These grounds raise an allegation that Ms Gu was denied procedural fairness. A denial of procedural fairness would be an error of law (Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 13).
Ms Gu also sought leave to appeal on each of the bases specified in clause 12(1) of Schedule 4 to the NCAT Act.
The Notice of Appeal asserted that the decision was not fair and equitable because: I was denied the benefit of seeing the Respondent's evidence. The Respondent never served me with any evidence, yet she relied upon a folder of evidence at the hearing. The first time I saw the Respondent's evidence was on 20 December 2016, 8 days after the judgment. Had I been aware of the Respondent's documentary evidence, I would have pointed out to the Senior Member a document I later discovered in the Respondent's bundle that showed clearly that the Respondent was aware at all material times that I had a default on my credit file.
The Notice of Appeal asserted that the decision was against the weight of evidence because: "I was unable to rely on a crucial email in the possession of the Respondent as the Respondent never served her material on me." and "I was denied the opportunity to test the Respondent's evidence as I had not been served with it. Moreover, after the hearing I discovered in the Tribunal's file two emails from the Respondent that proved that she had knowledge as early as 20 April 2015 of my credit default. These emails contradict her assertion at the hearing that she had no such knowledge at that time."
The Notice of Appeal also relied on emails from Ms Liang dated 20 and 21 April 2015, which referred to a credit default on Ms Gu's part, as fresh evidence that was not reasonably available at the time of the hearing.
It can be seen that the specific material that Ms Gu attributed importance to in the Notice of Appeal were two documents concerning an historical credit default, apparently seen by her as affecting the duties that J & W owed her and the performance of those duties. As will be seen below, at the hearing of the appeal Ms Gu's solicitor disavowed any reliance upon these emails concerning a credit default. As will also be seen below, Ms Gu's written submissions raised additional contentions to those reflected in her Notice of Appeal.
In the Reply to Appeal, signed by Ms Liang, it was stated that she had posted all material to Ms Gu and also emailed scanned copies. Various copies of emails were attached to the Reply. None of these refer in terms to copies of documents being sent by Ms Liang other than to submissions and a "response". It is apparent from the affidavit material from Ms Gu referred to below that the email from Ms Liang that does refer to an attached "response" (dated 22 August 2016) did include a number of evidentiary documents.

[7]

Affidavits in support of the appeal

Ms Gu included in the material filed in relation to the appeal two affidavits made by her dated 30 January 2017 and 22 March 2017.
In her affidavit dated 30 January 2017, Ms Gu deposed that when she read the Tribunal decision she was confused by paragraphs 19 and 20 of the reasons that referred to Ms Liang filing two bundles of documents - these were the two bundles subsequent to what the Tribunal had described in paragraph 18 as the collection of documents making up Ms Liang's initial evidence. Ms Gu deposed that she was confused because the only documents she had received were 15 pages attached to Ms Liang's "Response" - this appears to be a reference to documents attached to the email from Ms Liang dated 22 August 2016 attached to her Reply to Appeal. Ms Gu deposed that she went to the Tribunal Registry on 20 December 2016 and "discovered that there were over 100 pages of documents that were not served on me by the respondent". She deposed that she copied 18 of these documents which she felt were important. She deposed that she read those pages and "found that the documents told a different story from what Ms Winnie Liang on behalf of the respondent had said at the hearing" and that if she had all the documents "my evidence would be very different from that which had been filed". She pointed to an email dated 20 April 2015 about her bad credit rating as an example and deposed that she recalled that Ms Liang said at the hearing that she (Ms Liang) did not know about Ms Gu's bad credit rating until after the application to the bank had been made.
This affidavit from Ms Gu concluded by saying that in view of the Respondent's failure to give her the documents that were filed she now requested that the Tribunal set aside the decision dated 12 December 2016 pursuant to s 54 (3) of the NCAT Act and set the matter down for rehearing.
Clearly, the reference to s 54 (3) was a mistake and was intended to be a reference to s 53 (4) of the NCAT Act which provides that the Tribunal may set aside a decision by reason of an "irregularity" or non-compliance with a provision of the NCAT Act or the procedural rules. This contention was addressed at a call-over on 15 August 2017. The Tribunal's letter to the parties dated 16 August 2017 setting out the directions made at the call-over notes that Ms Gu no longer pressed her application under s 53 (4) and that the issue raised by that application was a ground of appeal, namely failure to afford procedural fairness.
It is apparent from this affidavit that the reference in the Notice of Appeal to never having been served with any of the Respondent's material was an overstatement.
In her second affidavit dated 22 March 2017, Ms Gu deposed that she had attended the Tribunal Registry on 22 February 2017 and was able to look at documents the Respondent gave to the Tribunal. She deposed that the Tribunal file showed that the Respondent had filed three lots of documents, these consisting of some documents filed on 9 May 2016 (marked with a tab containing the number 2), some documents filed on 11 May 2016 (marked with a tab containing number 3) and some documents filed on 31 August 2016 (marked with a tab containing number 5). She stated that at no time "have I received a copy of the documents filed by the Respondent on 9 May 2016 or copy of the documents filed on 11 May 2016." We infer that these three bundles of documents are the bundles referred to in paragraphs 18 to 20 of the Tribunal's reasons.
She deposed that she had printed out the documents attached to the above email dated 22 August 2016 (sent to her husband's email address) and that these comprised the documents filed in the Tribunal on 31 August 2016.
In the affidavit she deposed that at all relevant times her postal address was at a place in Mascot as stated on her application and that her email address was the email address of her now estranged husband. She says that at the directions hearing in the Tribunal on 8 August 2016 she changed her email address to a different address to that of her husband.
Also, in the material filed on behalf of Ms Gu on the appeal was an affidavit from Mr Bates (Ms Gu's husband) dated 5 March 2017. Mr Bates assisted Ms Gu in the presentation of Ms Gu's case before the Tribunal: [13] of the reasons. We note that he was also the author of Ms Gu's application to the Tribunal lodged in April 2016.
Mr Bates' affidavit is confusing because it first says that he received many emails from the Respondent (paragraph 2). It then says that the only email he received from the Respondent was an email dated 22 August 2016 with 16 pages of documents attached (paragraph 3). It may be that the intent of these paragraphs was to depose that the only email he received from Ms Liang with evidentiary documents attached was the email dated 22 August 2016. Mr Bates was not present at the hearing of the appeal.
Importantly, Mr Bates goes on to depose that he never received any documents by mail from the Respondent between 22 August 2016 and 22 September 2016. Mr Bates does not say in his affidavit that he did not receive by mail the documents filed by the Respondent with the Tribunal on 9 and 11 May 2016.
We regard this absence of evidence from Mr Bates as significant. If it had been the fact that Mr Bates had not seen the documents other than those provided with the email dated 22 August 2016 it would have been a simple matter for Mr Bates to have said so in his affidavit. The lack of such evidence is all the more significant because it is clear that Mr Bates had a significant, if not a leading role, in the preparation and conduct of Ms Gu's case in the Tribunal. One reason for this appears to have been Ms Gu's lack of fluency in English (a matter referred to in Ms Gu's written submissions). In the circumstances, if documents were received from the Respondent, it would be Mr Bates who would be expected to give them close attention.
In these circumstances, we find that Ms Gu has not established that the documents filed by the Respondent in May 2016 were not received at her address on the application form and were not seen on her behalf by Mr Bates.
In any event, even if we had found otherwise, as we explain below, we do not think that the failure to receive these documents warrants the setting aside of the decision.

[8]

Ms Gu's written submissions on the appeal

In her written submissions on the appeal, Ms Gu made additional points to those contained in her Notice of Appeal and affidavits as follows: 1. The Respondent relied upon the content of documents not seen by Ms Gu at the hearing but Ms Gu was not given the chance to read them before the hearing and test the contents at the hearing. This meant the decision was not fair and equitable. No submissions were made on the appeal either in writing or orally identifying the content of any particular documents that were the subject of this submission. For that reason, we reject this submission. 2. That the decision was against the weight of the evidence because the finding that Ms Liang was not aware of the commercial nature of the Property until 11 May 2015 was contrary to that part of the WeChat message of 6 May 2015 (referred to above) that specifically mentioned that a commercial loan was being sought. 3. The decision was also against the weight of the evidence because in relation to the damages claimed Ms Gu did provide evidence showing the increase in price between the first and second contracts, the settlement statement and tax invoices for legal fees. It was, nevertheless, conceded that Ms Gu "did not clearly explain the causation between the documents and damages claimed". It was said that this was because of Ms Gu's limited English. 4. In relation to the ground of appeal based upon significant new evidence, it was submitted that Ms Gu was deprived of the opportunity of using "part" of the documents in the bundles supplied by the Respondent to the Tribunal, which she had not seen, and that these included, but were not limited to, the email disclosing that Ms Liang had knowledge of Ms Gu's credit default as early as 20 April 2015 and the email from the valuation company indicating the commercial nature of the Property - a reference to the email referred to above dated 11 May 2017. 5. It was submitted that for the above reasons Ms Gu had suffered a substantial miscarriage of justice because she may have been deprived of a significant possibility of obtaining a more favourable decision. 6. Ms Liang's assurance that she could obtain the new loan was a major incentive that encouraged Ms Gu to enter the contract to buy the Property and was made without reasonable grounds. 7. From at least 6 May 2015, Ms Liang understood that a commercial loan for the purchase of the Property needed to be pursued but she recklessly proceeded to lodge a residential loan application. 8. On 11 May 2015, Ms Liang received the email from the valuation company which further indicated the commercial nature of the Property, but instead of withdrawing the application and referring the matter to another broker experienced in commercial loans immediately, she continued to pursue the wrong path and it was not until 3 June 2015 that she referred the case to another commercial mortgage broker. 9. If Ms Liang had reasonable knowledge concerning the pursuit of commercial loans, "she might give proper advice from the very beginning" so that the original contract would not have to be replaced by the second contract and the relevant additional cost would not have occurred. 10. The amount of damages now sought was reduced to the total amount of $9,024.00 made up of four items being the additional interest charged through the increased purchase price, additional stamp duty and additional legal fees of the vendor's and purchaser's solicitors.
In written submissions in reply, Ms Gu contended that as early as 6 May 2017 the Respondent should have promptly ascertained that the true nature of the property was that it was commercial, Ms Liang should not then have lodged a residential loan application but instead should have referred the matter to other loan brokers who specialised in commercial loans.

[9]

Breach of procedural fairness

We do not accept Ms Gu's claim of procedural unfairness for two reasons. Firstly, because of our finding that Ms Gu has not established that the documents were not served and seen by Mr Bates.
Secondly, even if we had found in Ms Gu's favour on this point, we are not satisfied that the result might have been an outcome favourable to Ms Gu: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141. In saying this, we accept that any failure to serve the documents on Ms Gu was a procedural defect capable of amounting to a breach of procedural fairness, as would also be any failure to specifically identify for the parties the evidence that was being adduced at the hearing.
However, we do not accept that as a consequence of such procedural defect Ms Gu was deprived of the opportunity of adducing evidence or making a submission that might have affected the outcome.
In this regard, we have been influenced by the following: 1. At the hearing of the appeal, the solicitor for Ms Gu pressed only one document as significant, namely the email from the valuation company dated 11 May 2015, to which we have referred above. Reliance upon the credit default documents dated 20 and 21 April 2015 identified in Ms Gu's affidavit evidence was abandoned. 2. As to the 11 May 2015 email, it was not contended that there was anything about its contents that Ms Gu would have wished to rebut. Nor was it suggested on behalf of Ms Gu that at the hearing Ms Liang had relied upon the document in any way. On the contrary, it was Ms Gu's position that the document had not been specifically referred to at the hearing. 3. As we understood it, the significance placed upon the email of 11 May 2015 was the submission that having received the email Ms Liang should have immediately withdrawn the loan application and referred the business to another broker experienced in commercial loans (paragraph 34 of Ms Gu's written submissions on appeal). 4. However, there are two problems for Ms Gu with this contention. Firstly, she already had evidence in the form of WeChat messages in support of a conclusion that by 6 May 2015 Ms Liang was aware that a commercial loan was required (see above reference to WeChat messages on 6 May 2015 - a point made in Ms Gu's written submissions in reply at [6]) but it does not appear from the reasons that any like contention was made to the Tribunal that at that time (a few days earlier than 11 May 2015) Ms Liang should have immediately withdrawn the loan application and handed over the business to an experienced commercial loan broker and no expert evidence was adduced to show that this is what Ms Liang should have done. Secondly, there was no evidence adduced on behalf of Ms Gu in the Tribunal, or on appeal, as to why and how such a step would have avoided all or some of the losses claimed. 5. Although we do not regard this as decisive, none of Ms Gu's evidence about the significance of the documents she says she saw for the first time after the Tribunal's decision specifically addresses the significance of the 11 May 2015 email.

[10]

Leave to appeal

Insofar as Ms Gu seeks leave to appeal, we do not accept that the Tribunal's decision was not fair and equitable or against the weight of the evidence or that there is significant new evidence not reasonably available at the hearing or that a substantial miscarriage of justice has occurred by reason of the various matters raised by Ms Gu.
As to the contention that the decision was not fair and equitable because of the alleged failure to provide Ms Gu with the documents lodged by the Respondent in the Tribunal in May 2016, or that this has meant that there is significant new evidence not reasonably available at the hearing, we do not accept these contentions for the same reasons as we have given in respect of the claim of a breach of procedural fairness.
As to the contention that the decision was against the weight of the evidence, Ms Gu relies upon the evidence in the WeChat messages on 6 May 2015 that appears to indicate that Ms Liang was aware of the commercial nature of the Property by that date and not, as the Tribunal found, until on or about 11 May 2015.
Ms Gu's case in the Tribunal was that from or near the beginning of the relationship Ms Liang was made aware that the Property was a commercial property. In that context, the Tribunal rejected the contention that Ms Liang had advised that she could change the zoning to residential; at [44] - [47]. In so finding the Tribunal considered the message on 6 May 2015 in which Ms Liang asked Ms Gu "When does the shop settle?" as evidence that was possibly against the finding that Ms Liang never advised that she could change the zoning: at [47]. The Tribunal went on to conclude that this evidence did not establish that Ms Liang was aware of the commercial nature of the Property because if she had such knowledge she would not have proceeded to apply for a residential loan.
In making this finding concerning Ms Liang's knowledge the Tribunal did not refer to the evidence we have referred to above in a subsequent WeChat message between Ms Gu and Ms Liang on 6 May 2015 at 2:14pm in which Ms Liang said: "Wait until you get the valuation report then we can apply for the new loan. You need to provide a lease agreement prepared by your real estate agent for your commercial loan application".
This evidence strengthens a contention that Ms Liang had become aware of the commercial nature of the Property by 6 May 2015, rather than on or about 11 May 2015. It was not contended by Ms Gu on the appeal that it assisted to establish that Ms Liang was aware of the commercial nature of the Property from the beginning, or near to the beginning, of the relationship in April 2015. That was understandable in view of the WeChat messages on 4 May 2015 referring to applying for a loan for Ms Gu's new house and in view of the conflict in the oral evidence about being told that it was a commercial property from the beginning.
It may be that the true nature of the property and the type of loan needed to fund its purchase remained a matter of uncertainty for Ms Liang until she received the email dated 11 May 2015 from the valuation company.
Nevertheless, assuming that the Tribunal erred in overlooking the evidence contained in the later WeChat message on 6 May 2015 and, as a consequence, should have found that Ms Liang's knowledge of the commercial nature of the Property dated from 6 May 2015, we do not think that the decision to dismiss Ms Gu's claim was against the weight of the evidence or that a substantial miscarriage of justice may have occurred. This is because, as we have already explained, it does not appear that any case was put to the Tribunal based upon Ms Liang first becoming aware of the commercial nature of the Property on or about 6 May 2015. Rather, Ms Gu's case was that from or near the commencement of the relationship with Ms Liang she had made her aware of the commercial nature of the Property case.
On the appeal, Ms Gu has not shown how knowledge of the relevant matter five days earlier than the date the Tribunal found Ms Liang did obtain such knowledge would have made any difference to the case as presented to the Tribunal.
In dealing above with additional contentions made in Ms Gu's written submissions on appeal we have referred to contentions made in those submissions as to what Ms Liang should have done from 11 May 2015 (or earlier) and that she was negligent in proceeding with an application for a residential loan after that date (see (7), (8) and (9) of paragraph 44). Even if we were to assume that these were points made in the Tribunal, the short answer to each of these contentions is that they do not arise above assertion and were not supported by any expert evidence as to what Ms Liang should or should not have done. For this reason we reject those contentions.
Furthermore, at the hearing of the appeal, Ms Gu's solicitor accepted that the contention that it was negligent of Ms Liang to apply for a residential loan after 11 May 2015 was not put to the Tribunal. That is an additional reason for rejecting that submission: Hudson v Arp 1 (NSW) Pty Ltd [2014] NSWCATAP 31; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, at [9]); Drivas v Burrows [2014] NSWCATAP 87 at [32]-[33].
We also referred to a submission about encouraging Ms Gu to enter into the contract to buy the Property (see (6) of paragraph 44). However, as we noted earlier, Ms Gu did not bring a case that but for Ms Liang's statements she would never have purchased the Property. Accordingly, we reject the submission.
Finally, we refer to the submission that was not elaborated upon at the hearing of the appeal that the decision was against the weight of the evidence because there was sufficient evidence as to damages (see (3) of paragraph 44). Had Ms Gu succeeded on any of her contentions on appeal concerning liability of J&W then it may have been necessary to address the question of damages. However, this has not occurred and in these circumstances we do not proceed to deal with this aspect of the appeal.

[12]

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: 22 January 2018

Gu v J & W Home Loan Pty Ltd

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Judgment (12 paragraphs)

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