Kang v Khan

Kang v Khan - [2015] NSWCATAP 156 - NSWCATAP 2015 case summary — Zoe

The Appellants' Case

The dispute between the parties arises from an agreement between the parties that the install, sand and coat stairs and flooring for the sum of $9,760.
The appellants rely on the following grounds of appeal: 1. The Tribunal accepted inappropriate evidence in order to prove that their work was not carried out in a proper and workmanlike manner; 2. The Tribunal's lack of knowledge in sanding and coating processes led to a premature decision and it found defects that are "generally resolved after the final coating"; 3. The Tribunal failed to refer to the counter evidence (especially the complete guide to sanding and technical data sheet), resulting in an unfair decision; 4. The Tribunal took into account irrelevant matters or matters not in evidence from the respondent, including two quotations which were irrelevant as they incorrectly refer to "completed" work; 5. The Tribunal's reasons were unsupported and/or irrelevant, especially where based on photographic evidence (which showed no visible faults) and timber installation; 6. The findings of the Tribunal at paragraph 32(f) were not relevant. The creaking on the stairs was a matter about which the appellants had no notice, could have been resolved and was not related to sanding. Further, the contract required three coatings of sealer, followed by a finish coat. Accordingly further sanding was required at the time the respondent refused to allow the appellants to complete the work. 7. The Tribunal erred in allowing $800 for purchase of timber, which was not required. There were no quotations to support the measurements. 8. The Tribunal did not indicate the amount of time needed for the hearing, leading to an inequitable decision, depriving the appellants the opportunity for a complete hearing. The appellants had to leave the hearing before it was completed.
The appellants seek the following orders from the Appeal Panel: 1. An order in the appellants' favour, that they do not have to pay $3,600 for rectification work as they were forcefully and unreasonably interrupted by the respondent; 2. An order in the appellants' favour, that they do not have to pay the claimed $800 for repurchasing excess timber; 3. An order that the respondent pay the appellants $3,100; and 4. An order that the appellants do not have to pay the respondent any compensation for late completion.

[4]

The Tribunal's Decision

The Tribunal delivered its reasons for decision on 9 December 2014 ("Reasons"). The only matter for consideration was whether or not the appellants had carried out the work in a proper and workmanlike manner: [28] Reasons.
The Tribunal relevantly made the following findings of fact: 1. The hearing concluded at 3 pm because the appellants had made arrangements to be elsewhere: [4] Reasons. 2. The appellants contracted with the respondent to install, sand and coat 17 stairs and 183 square metres of flooring for the sum of $9,760: [7] and [8] Reasons. 3. The appellants commenced work, however, the relationship between the parties regarding the performance of the work became acrimonious and the work was not completed: [22] Reasons.
As to the use that could be made by the Tribunal of the quotations submitted by the respondent in support of her claim, the Tribunal referred to the earlier Appeal Panel decision: Khan v Kang [2014] NSWCATAP 48 at [50]. The Tribunal observed at [29] Reasons: 1. A quotation can, depending on the circumstances and the nature and content of the quotation, constitute evidence of the defects or incomplete work; 2. The weight of the evidence will depend on the circumstances;
The Tribunal found the quotations in this case to be relevant: [30] Decision. The Tribunal found that the quotations, together with the evidence as a whole, established as follows ([32] Decision): 1. There were nail holes filled with putty that did not match the timber; 2. There were rips or gouges in the timber flooring; 3. Some sanding of floors was unfinished; 4. The sanding that the appellants performed left "ripples" in the surface of the floor timbers; 5. The sealing of the floors in some areas is rough because dust was left on the floor after sanding and then coated over; and 6. The timber cladding to three stairs creaks and the wrong coating was used.
As to the respondent's claim for the $800, the Tribunal found the following relevant facts: ([34] -[43] Decision): 1. The respondent purchased the timber for the appellants to install; 2. Based on appellants' quote of 183 square metres (made up of 168 square metres of flooring, 8 square metres of stair timber, and 7 square metres of "extra" timber), the respondent purchased 180 square metres of timber. 3. In support of the respondent's claim, she attached measurements, calculating that 122.55 square metres of timber was used. The 7 metres of "wastage" used in cutting the timber was accepted. 4. The respondent also tendered an invoice from the timber supplier showing that the appellant paid $74 per square metre for timber. That invoice was not in question. 5. The Tribunal member found that the respondent would only need to prove 11 square metres in excess timber to establish her claim. 6. The appellants referred the Tribunal to the quotation from T Flooring, which provided a measurement of a greater area, namely 157 square metres. The Tribunal accepted that quotation. The Tribunal calculated that 157 metres plus 7 metres of wastage established that the respondent over-ordered 16 square metres of timber in reliance on the appellant's calculation. 7. The stairs required 8 square metres of timber. 8. The respondent had excess timber stored in her garage.
The Tribunal, having regard to the fact that the measurements were not precise, was satisfied that the amount of $800 was a reasonable estimate of the respondent's over-ordering: [42] Decision.
As to the requirement that the respondent pay to the appellant $3,100, the respondent sought an order pursuant to s.48(c) of the Fair Trading Act, relieving her of the obligation to pay the balance otherwise owing under the contract. The Tribunal refused to make the order: [52] Decision. The respondent's claim for compensation for late completion also failed: [57] Decision. The respondent has not appealed against either of those findings.

[5]

Appeal requiring leave

This is an internal appeal pursuant to s 80(2) of the NCAT Act. An internal appeal may be made as of right on a question of law and otherwise with the leave of the Appeal Panel. Pursuant to Schedule 4, cl 12 of the NCAT Act, the Appeal Panel can only grant leave to appeal from decisions of the Tribunal's Consumer and Commercial Division if it is satisfied that: 1. the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, 2. the decision was against the weight of evidence or 3. significant new evidence has arisen 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 set out the meaning of "substantial miscarriage of justice" 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."
The Appeal Panel has a discretion whether to grant leave to appeal even in cases where the appellant has demonstrated that they may have suffered a substantial miscarriage of justice. The principles to be applied in determining whether leave to appeal should be granted were also considered in Collins v Urban. The Appeal Panel conducted a review of the relevant cases at [65]-[79] and summarised the general principles derived from these cases as follows at [84]: (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 fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, 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; or (c) an injustice which is reasonably clear, in the sense of going beyond merely 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. ….

[14]

Determination of the Appeal - Ground 8

The appellants contend that the Tribunal did not indicate the amount of time needed for the hearing, leading to an inequitable decision and depriving the them of the opportunity for a complete hearing. The appellants assert that they had to leave the hearing before it was completed. They contend that "had to leave the hearing" … "due to other businesses".
In oral submissions before the Appeal Panel the appellants contended they had to leave early because they had other things to attend to. They asserted that the Tribunal didn't have enough time to hear what they had to say. They contended that because they had to leave early the Tribunal member could not have heard all of the evidence. They accept that they did not seek to put anything else they wished to say in writing so that all of their points could be addressed. They also accept that they did not seek an adjournment.
If established, an unreasonable failure to allow a party sufficient time to complete their case may constitute a failure to accord procedural fairness.
The duty to accord procedural fairness arises because the power involved is one which may "destroy, defeat or prejudice a person's rights, interests or legitimate expectations": Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598; 97 ALR 177; (1990) 65 ALJR 167; 21 ALD 651. The content of the duty in a particular case depends upon the circumstances of the case and the nature of the power being exercised: Kioa and Ors v West [1985] HCA 81; (1985) 159 CLR 550 at 585 and at 612-615; (1985) 62 ALR 321; (1986) 60 ALJR 113; 9 ALN N28.
In Collins v. Urban [2014] NSWCATAP 17, the Appeal Panel comprised of Wright J, President, S Westgarth, Deputy President and M Harrowell, Principal Member, commencing at [40], held in respect of procedural fairness in hearings before the Tribunal, that s 38(5)(c) of the NCAT Act requires that the Tribunal "take such measures as are reasonably practicable ... to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": Collins at [40].
Procedural fairness does not require the Tribunal to accommodate the appellants' desire to leave the hearing at a particular time. The appellants were notified of the hearing, they attended it and they could have remained at the hearing longer rather than leave to attend to other business if they had additional evidence to give or submissions to make. In any event the appellants did not put before the Appeal Panel any material that, had it been put to the Tribunal below, might have affected the outcome.
The Appeal Panel is not satisfied that the appellants have demonstrated that they were denied procedural fairness or that giving further evidence or making further submissions would have changed the outcome of the hearing. This ground of appeal also fails.

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Judgment (15 paragraphs)

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Cases Cited (12)