By Notice of Appeal filed on 14 October 2021, the appellant appeals the order and the decision of the Tribunal made on 1 October 2021. The appellant also filed an application for a stay of such order. The order appealed from required the appellant to pay the respondent the amount of $4,500 immediately.
[2]
Facts
The proceedings before the Tribunal (HB 21/24552) related to tiling work which was carried out by the appellant to a swimming pool and bathroom as sub-contractor to the respondent. The Tribunal found that there was an oral contract made between the parties which fixed the labour rate at $450 per day incl GST. The tiling work on the pool was expected to be carried out over a period of 10 days.
Other proceedings heard and determined concurrently with those proceedings were proceedings brought by Mr Kassis against Mr Jiang (HB 21/24552) for damages for defective workmanship on the pool and the bathroom.
Mr Kassis succeeded in the claim for defective workmanship on the pool and was awarded $2,079.58. His claim in relation to the bathroom was dismissed. There is no appeal by either party against the decision in those proceedings.
A single decision was given in which amounts found to be owing by each party to each other were set-off against one another with the net result being an order that Mr Jiang pay Mr Kassis $4,500.
Jiang v Kassis [2022] NSWCATAP 12 | Case summary | Zoe
The Tribunal member's findings in the reasons given are sometimes contradictory, sometimes unexplained, and sometimes lack any reasoning.
The unexplained finding was the Member's finding that, as a result of the oral contract referred to above, "the amount owing under the contract is $5,400", yet the reasons only refer to a 10-day contract at $450 per day (which would total $4,500). The sum of $5,400 is only possibly explained by the fact Mr Jiang also claimed in his Application Form $900 for the bathroom, but no findings are made in relation to that work and there is no mention in the reasons of the claim for that $900.
The Member's finding that the respondent had paid Mr Jiang $4,860 for the pool work lacks any reasons. That amount was indisputably paid, but Mr Jiang's case was that the sum was paid for other sub-contracting work that had been done by him for the respondent whilst the respondent's case was that the money was for the swimming pool work. The Tribunal gave no reasons at all for the finding and why, presumably, Mr Jiang's evidence was rejected and the respondent's evidence accepted.
The contradictory aspect of the decision lies in the fact that the Tribunal expressly found that Mr Jiang should pay Mr Kassis $1,940. This figure was supposedly arrived at by taking the $5,400 owed to Mr Jiang, subtracting the $4,860 supposedly paid to Mr Jiang, and subtracting the $2,079.58. The Tribunal found Mr Jiang should pay Mr Kassis for defective workmanship. The Tribunal calculated the final figure to be $1,940, which is obviously incorrect. If that calculation is correct, the final figure should have been $1,539.58.
More importantly, despite making the express finding that the net result was that Mr Jiang pay Mr Kassis $1,940, the Tribunal's order was that Mr Jiang pay Mr Kassis $4,500. There is an unexplained contradiction between the finding of the net result and the order which was made by the Tribunal.
[3]
Grounds of Appeal
The grounds of appeal (drafted by the appellant's wife who also represented the appellant at the hearing before the Tribunal) state:
"The respondent didn't pay my husband's wages about the swimming pool. The swimming pool has been done, if no income how do I need to pay the fix fee."
The appellant claimed that there was insufficient time for him to explain his situation at the first hearing. The appellant asserted that "I had received some money but it was not for the swimming pool project. I believed that the judges didn't have my whole view in this case". Further, the appellant stated that he had a translator to assist him to understand but the translator did not do "a good job by having to translate their conversation to me. It caused me didn't understand what's going on at that moment so it make me lost my benefit in this case. In conclusion this is totally unfair decision for me. I require to recheck my evidence about the bank statement and the video about I with Elie conversation during the whole period."
The appellant also asserted that he did not receive any evidence from the other party before the hearing and that "it seems no one care about me".
The appellant asserted that the Tribunal should give the bank statements "more weight. It has showed the money Elie paid me during the whole time. It can be tell you Elie didn't pay my salary. Elie always paid after project has been done. The swimming pool project done by 4 March 2021, it is not possible he not pay me before this date. In the video conversation showed it me still talking the money after March."
[4]
Orders sought
The orders which the appellant claimed the Tribunal should make is stated as follows:
"The NCAT has to check my evidence again., It is very unreasonable case for me to pay the money to Elie when I didn't get any money from him before. You can check the bank statement which has a records since Feb. 2021."
[5]
Evidence
The appellant provided bank statements in respect of the period from 5 January 2021 to 30 June 2021. A written statement dated 19 November 2021 was provided together with screenshots of email messages. Photographs of a swimming pool were also provided. A further statement dated 22 November 2021 was received together with additional screenshots or duplicates of the screenshots that existed.
[6]
Respondent
The respondent had not filed a Reply however the respondent filed a statement on 3 November 2021.
[7]
Observations
This appeal has been instituted under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CATA"). It is an internal appeal as provided by s 80(2)(b). The appellant may appeal as of right on a question of law.
Pursuant to Sch 4, cl 12(1) to the CATA, an Appeal Panel may grant leave under s 80(2)(b) of the CATA to appeal on a question other than a question of law only if it is satisfied that 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).
In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel referred to the requirements for a grant of leave and at [84] said:
"…(1) in order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision-maker was arguably wrong in the conclusion arrived at or that there was a bona fides the challenge to an issue of fact: BHP Billiton Ltd v Dunning (2013)CA NSW 421 at [19] and the authorities cited their; Nakad v Commissioner of Police, NSW Police Force (2014] NSWCATAP 10 at [45);
(2) ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; orc
(c) an injustice which is reasonably clear, in the sense of going merely beyond what is arguable or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
In summary it must be demonstrated that an appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal was not fair and equitable; or the decision under appeal is against the weight of evidence; or new evidence has arisen that was not reasonably available at the time of the hearing.
The notice of appeal was not prepared by a legally qualified person and accordingly the Tribunal must discern the nature of the appeal as was considered in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [12].
The Appeal Panel identifies the issues as follows:
1. Was the contradiction between the finding and the order referred to above erroneous.
2. Were there inadequate reasons for the finding that Mr Jiang had been paid $4,860.
3. Were there inadequate reasons for the finding that Mr Jiang was owed $5,400.
[8]
Applicable legal principles governing appeals
Section 80(2)(b) of the 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.
Clause 12 of Schedule 4 to the 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).
[9]
Decision
The Appeal Panel considers that the reasons provided by the Tribunal are erroneous.
The final order made by the Tribunal required the appellant to pay Mr Kassis an amount of "$4,500 immediately". There is no calculation which arrives at this sum; and further, it is inconsistent with the amount which the Tribunal found was payable by the appellant to the respondent, namely $1,940 (which, in itseld, was an erroneous calculation).
The Tribunal did not provide any reasons for the finding that Mr Kassis had paid Mr Jiang $4,860 for the pool work. Bank statements had been supplied showing the payment (comprised of two transfers), but there were no reasons given to explain the finding taking into account the differing cases put forward by the parties, namely that Mr Kassis said the money was for the pool work and Mr Jiang asserting the money was for different work.
A decision-maker has a duty to state the findings and reasons for decision so as to enable a proper understanding of the basis on which the decision has been made: failure to do so may constitute an error of law: Pettit v Dunkley [1971] 1 NSWLR 376 at 382 per Asprey JA. Whilst this obligation does not require the spelling out of every detail in the process of reasoning, the reasons must resolve critical points in contest and facilitate appellate review: see Kendirjian v Ayoub [2008] NSWCA 194 at [169] per McColl JA.
Similar observations have been made to the effect that a "pragmatic and functional approach" is to be applied in determining whether the obligation to give reasons has been satisfied: see Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46] per Basten JA ; see also Carlson v King (1947) 64 WN (NSW) 65 per Jordan CJ at 66; see also Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per Kirby P at 259C.
[10]
Orders
The Tribunal finds that the obligation to provide reasons has not been fulfilled and that an error of law has occurred. Accordingly the Tribunal makes the following orders:
1. Appeal upheld.
2. Order 1 made by the Tribunal on 1 October 2021 be set aside.
3. In lieu of Order 1:
1. in proceedings HB 21/29359 it be ordered that the respondent (Mr Jiang) pay the applicant $2,079.58 (Mr Kassis);
2. proceedings HB 21/24552 be remitted to a differently constituted Tribunal for rehearing.
1. Order 3(a) above be stayed pending the determination of the proceedings referred to in Order 3(b).
[11]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
[12]
Amendments
20 January 2022 - Removed words "referred go more strain we ho" in the last sentence of [9] of the Reasons.
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Decision last updated: 20 January 2022