Huang v Champion Homes Sales Pty Ltd

1. For the reasons outlined above, we are not satisfied that the appellant has established that there are any errors of law on a question of law. We have therefore dismissed each ground of appeal.
2. The appellant does not seek leave to appeal in relation to any of these grounds. Despite this, and because she is a litigant in person, we have considered whether the appellant should be given leave to appeal on any of these grounds or as a whole.

1. The gateway for the exercise of discretion to give leave to appeal is that the Appeal Panel must be satisfied that there has been a substantial miscarriage of justice on the grounds set out in cl 12(1) of Sch 4 to the NCAT Act. Relevantly, the appellant must establish that there has been a substantial miscarriage of justice because the decision was not fair and equitable, it was against the weight of evidence or because significant new evidence has arisen, being evidence that was not reasonably available at the time of the proceedings.
2. We have reviewed the Amended Grounds of Appeal and the decision of the Tribunal, which was comprehensive. We are not satisfied that there is anything to indicate that the decision under appeal was not fair and equitable. The Tribunal provided the appellant with reasonable opportunity to present her case and prior to the hearing, there were detailed directions about evidence. A review of the decision and the claims made by the appellant reveal that the Tribunal made considerable efforts to identify and consider the claims made, even though some of the claims made were confused, repetitive and inconsistent. Notably, the decision refers to or extracts submissions and claims made by the appellant and analyses those claims in the reasons.
3. Nor are we satisfied that the decision was against the weight of evidence. The fact that the appellant did not adduce sufficient evidence to satisfy the Tribunal about her claims does not compel a conclusion that she suffered or may have suffered a substantial miscarriage of justice. It is apparent from the decision that the Tribunal carefully considered the evidence presented by both parties and in weighing this evidence, made findings of fact on the basis of the evidence. It is also apparent that the Tribunal made a number of factual findings in favour of the appellant but was ultimately not satisfied she could establish loss, reliance or damage.
4. Finally, the appellant was not able to point to any new evidence that had arisen that was not reasonably available at the time of the proceedings. The only evidence she referred to is the evidence from GJ Gardner which was not compelling in any event. This evidence comprises an email about the cost of completing the duplex now. This is not a cause of action that was available to the appellant in any event. During the course of the appeal, and in her written submissions after the hearing at first instance, the appellant argued that the respondent had wrongfully terminated the contract and this wrongful repudiation gave rise to a claim for damages, being the difference between the contract claim and the estimated cost of retaining another contractor to construct the duplex. This was not the claim originally made by the appellant and this claim is inconsistent with the claim that the contract should be set aside, from the outset, on the basis of misleading in deceptive conduct or alternatively, unconscionable conduct.
5. Accordingly, we refuse leave to appeal.

1. Rule 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) applies to costs in internal appeals. The effect of r 38A is that in the appeal of a decision of the Consumer and Commercial Division, the costs provisions applying in the proceedings at first instance (in this case r 38) are carried over to the costs rules applying to the appeal of the decision. This being the case, if the amount claimed or in dispute in the appeal is more than $30,000, the Appeal Panel will have a discretion to award costs. In this appeal, the amount in dispute exceeded $30,000. As such, we have a discretion to make an order for costs.
2. In the proceedings at first instance, the Tribunal ordered that each party pay their own costs.
3. Both parties requested costs of the appeal in their written submissions.
4. The respondent was successful, and, in the usual course, the winning party would be awarded costs. However, the costs of the appeal were not argued at the hearing of the appeal, pending the outcome.
5. We have therefore made directions to deal with any application for costs.

1. The Appeal Panel makes the following orders and directions:

(1) The time for the appellant to lodge a Notice of Appeal from the orders of the Tribunal made on 6 December 2024 is extended to 6 January 2025.

(2) To the extent leave to appeal is required, leave is refused.

(3) The appeal is dismissed.

(4) If a party to the appeal wishes to make an application for costs, the following directions apply:

(a) the party applying for costs (the costs applicant) must, within 14 days after the publication of this decision, give the other party (the costs respondent) and the Registry any submissions and documents the costs applicant intends to rely on in relation to the application, including on the question as to whether costs should be fixed or assessed;

(b) the costs respondent must, within 14 days after receiving the submissions and documents of the costs applicant, give the costs applicant and the Registry any submissions and documents the costs respondent intends to rely on in response to the application for costs;

(c) the costs applicant must, within 7 days after receiving the submissions and documents of the costs respondent, give the costs respondent and the Registry any additional submissions and documents the costs applicant intends to rely on in response to the costs respondent's submissions and documents;

(d) the parties are to include, in their written submissions concerning the application for costs, their submissions about whether they consider that a hearing in relation to the application can be dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

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.