APPEALS - whether leave to appeal should be granted - no question of principle
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) - 80
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APPEALS - whether leave to appeal should be granted - no question of principle
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) - 80
Judgment (11 paragraphs)
[1]
Introduction
This is the appeal of the appellant Mr Jason Laus from a decision of the Consumer and Commercial Division of the Tribunal (Tribunal) of 21 November 2022 in matter GEN 22/36261 (Decision).
In that matter, Mr and Mrs Kukreti sought an order that Mr Laus pay them $4,290 for defective work undertaken by him.
While the Tribunal found Mr Laus responsible, it declined to make the order sought. Instead, the Tribunal made a rectification order, requiring Mr Laus to make good the water leak in the shower in a proper and workmanlike manner by 16 December 2022.
That order was subsequently stayed pending the outcome of the appeal.
For the following reasons, we have decided to refuse leave to appeal, otherwise dismiss the appeal and lift the stay.
[2]
Notice of Appeal
The Notice of Appeal states the Mr Laus' grounds of appeal as follows:
My understanding is we provide evidence for proof of broken tile & damage to silicone which has been modified not by our company. there is no note in the plumbers report to say what could be causing the leak and the decision has been made on an assumption and not by evidential facts.
Mr Laus says that:
due to malicious damage caused by tenant and modifications & attempts by someone other than the original company to fit damage [?]. The tenant is liable for the damage.
Mr Laus acknowledges that he requires leave to appeal. He says that leave should be granted as the Decision was not fair and equitable for the following reasons:
evidence from applicant['s] plumber says there is a leak but does not say what has caused this. I believe the plumber has taken the photos of angles so you cannot clearly see the base of the shower. Member has ruled that the evidence we provided of a broken tile silicone tampering was after the plumber has attended yet the agent of the property says she has no idea of the damages. We had provide[d] evidence that the tile is broken and believe the decision has been made on an opinion and not evidence based facts. The broken tile is taking a heavy load of forced to crack and would have damaged the membrane. Also the silicone over the original silicone says someone could of dropped something on the wall panel and broken the silicone waterproof bonding and they have tried to repair.
When asked what evidence the Tribunal should have given more weight to and why, Mr Laus says that the:
plumbers report only stating a leak no evidence saying what is causing it from stop notice provided have been only taken from far away and this is because they don't want to show damages of shower base.
We note that, despite orders to do so, Mr Lau did not provide to the Appeal Panel the evidence that was before the Tribunal, nor a sound recording of the proceedings and transcript thereof, or any written submissions.
[3]
The Kukretis' documents on appeal
The Kukretis provided a bundle of 60 pages to the Appeal Panel. This was their evidence at the Tribunal hearing. This included a detailed chronology of events, invoices and correspondence between the parties.
The Kukretis were represented at the appeal hearing by Ms J Sandhu, who also represented them before the Tribunal. Ms Sandhu informed the Tribunal that the Kukretis agreed with the Decision for the reasons given. She also submitted that the appeal should not be considered as no new evidence had been provided by Mr Laus. She submitted that Mr Laus was "wasting everyone's time to delay the repair work thus causing further damage" and causing "hassle" to the landlords who has have requested the work to be satisfactorily completed.
[4]
Internal appeals
Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which internal appeals from decisions of the Tribunal may be brought.
Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: NCAT Act, s 80(2).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law. At [12] the Appeal Panel stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).
We have undertaken that exercise. We have not identified any question of law. Accordingly, Mr Laus requires a grant of leave.
[5]
Leave to appeal
Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because:
1. the decision of the Tribunal under appeal was not fair and equitable; or
2. the decision of the Tribunal under appeal was against the weight of evidence; or
3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that:
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.
Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
[6]
The Decision
It is appropriate to commence our consideration of the appeal by summarising the Decision.
The Decision commences by summarising the application and the parties, and then sets out the procedural history of the matter. The Tribunal then summarises the evidence before it and makes the following findings of fact:
It appears that in 2018 the tenants of the premises complained of a leaking shower and the owner authorised the managing agent to arrange for the renewal of the shower.
Mr Laus was contracted to do this work at a cost of $4290. The floor of the shower was raised, new tiles were laid and a new shower screen was fitted. At the time extra work on the shower had been done at the suggestion of Mr Laus. In early 2020 a complaint was made about the shower and Mr Laus inspected the job and said he found some loose grout which was made good.
in June 2021 mould was detected in the shower area which gave rise to a suspicion of an underlying waterproof issue. Mr Laus was alerted and having inspected the work concluded that it was not a waterproofing issue and did not accept responsibility.
A further complaint was made in March 2022 and, in the absence of intervention by Mr Laus, a plumber (APT Plumbing of Fairfield) was retained to check the shower. Its report included a fluorescene dye test and clearly showed a water leak emanating from the base of the shower.
The evidence before me from Mr Laus showed a broken tile on the shower floor. His position was that the broken tile and a lack of maintenance of the silicon bead between the wall/floor tiles had caused the leak.
His photos clearly show the cracked tile and also that the neat white silicon bead has at some stage been augmented by an inexpert clear silicon overlay.
The Tribunal then states:
Analysis.
Mr Laus was reluctant to admit liability and noted that his original work had been performed in 2018. However for the purposes of the Home Building Act a waterproofing failure is a major defect to which a 7 year warranty attaches.
The conflict of interpretations is obvious. Mr Laus maintains that the trauma of a broken tile has let water through and damaged the underlying membrane. If that is correct he bears no responsibility.
On the other hand the owner notes a long history of trouble with the shower which has become worse over the years. It has now positively been diagnosed as a shower membrane issue by the APT report. The remaining issue is who is likely to be responsible for the failure of the water proofing.
No broken tile can be identified from the various photos put into evidence except the recent picture from Mr Laus. Similarly, the short but comprehensive report of the plumber does not mention a broken tile.
As Ms Sandhu points out the water leak problem existed long before the discovery of the broken tile.
I find that I am entitled to conclude on the material before me that the waterproofing membrane has broken down before the floor tile in the shower was broken. As a result Mr Laus is responsible.
There does not seem to be any reason to avoid the statutory preference for a contractor to make good defective work.
[7]
Consideration
As noted, Mr Laus provided no written submissions or other materials to the Appeal Panel save for the Notice of Appeal. The grounds he agitates are set out above. In summary, his grounds of appeal appear to be that the Tribunal erred in finding responsible for the water leak because:
1. there is no note in the plumber' s report to say what is causing the leak and therefore the Decision has been made on an assumption and not on evidence;
2. the leak was caused or contributed to by the malicious damage of a tenant breaking a tile;
3. the leak may have been contributed to by modifications being the placement of additional silicone over the silicone installed by him. In other words, by someone other than Mr Laus or his company, and therefore the tenant is liable for the damage, not Mr Laus.
It would appear that the first matter was put to the Tribunal, as the Tribunal refers to the "report" in its written reasons. The "report" was actually a tax invoice of APT Plumbing Services dated 20 April 2022 which states:
Description
To attend site on the 19/4/22 to investigate water leak from shower
To pressure test the shower breech [sic] - pass
To check the shower tapware - pass
To spray test the shower walls - pass
To fluroscene the shower base - failed
We found the leak from the shower to be coming from the shower base which is leaking to bathroom floor - see photos.
Shower needs to be repaired & waterproofed.
We see no error in the Tribunal's reliance on this report. The Tribunal's conclusions based on this report (and in the absence of any independent expert evidence relied on by Mr Laus before the Tribunal) seems entirely justified, namely that:
the owner notes a long history of trouble with the shower which has become worse over the years. It has now positively been diagnosed as a shower membrane issue by the APT report. The remaining issue is who is likely to be responsible for the failure of the water proofing.
The second and third matters can be dealt with together. We accept that both were put to the Tribunal, as the Tribunal found that Mr Laus' photos
clearly show the cracked tile and also that the neat white silicon bead has at some stage been augmented by an inexpert clear silicon overlay.
However, we see no error in the Tribunal's rejection of Mr Laus' hypotheses that either or both of these matters caused the shower to leak. In the absence of details regarding Mr Laws' evidence before the Tribunal, or a transcript of the hearing, we are unable to detect any error in the Tribunal's reasoning or in the order it made.
[8]
Conclusion
As has been noted in many appeals, an appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. And, as the Appeal Panel stated in Temple v AMR Motors Pty Limited [2017] NSWCATAP 221:
38. … Any decision to grant leave to appeal must be undertaken in a legally principled manner and not simply because, if we were hearing the matter anew on the evidence led before the Member, we might reach a different conclusion when considering that evidence (although in the present case that would not be so).
39. It is fundamental that an appeal on a question of fact does not provide and is not intended to provide an opportunity for an applicant dissatisfied by the result of a hearing at first instance to re-run the same case before an Appeal Panel. Yet, that is, in effect, what the present Appellants seek to do by identifying what they contend are contestable findings of fact by the Member.
To put the matter another way, as indicated in the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website):
… an appeal is not an opportunity to have a second go at a hearing.
On the basis of the materials put before the Appeal Panel, we are not satisfied that Mr Laus has suffered a substantial injustice. And even if were satisfied that the appellant had suffered a substantial injustice, we are not satisfied that the matter involves an issue of principle, or a question of public importance, where the injustice is reasonably clear, or that the Tribunal went about its fact-finding process in such an unorthodox manner that it is likely to have produced an unfair result.
For these reasons we do not grant leave to appeal.
As we see no basis to grant leave to appeal the appeal must be dismissed and the stay of the Tribunal's order lifted.
[9]
Other
Mr Laus told us that were the Appeal Panel to reinstate the rectification order (as we have done) he would not comply with it. In the circumstances, the appropriate course is for the Kukretis to seek leave to have proceedings GEN 22/36261 renewed pursuant to cl 8(2) of Sch 4 of the NCAT Act. That clause provides that:
If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.
[10]
Orders
The Appeal Panel orders:
1. Leave to appeal refused.
2. Appeal otherwise dismissed.
3. The stay ordered on 11 January 2023 is lifted.
[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
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Decision last updated: 20 February 2023