This an appeal from a decision of the Tribunal ordering the appellant (who conducted a property maintenance business) to arrange for a licensed electrician to attend the respondent's home to inspect and certify certain earlier work undertaken by the appellant's unlicensed electrical contractor.
At the commencement of the hearing of the appeal the appellant sought an adjournment which was refused. Our reasons for that refusal appear below.
At the conclusion of the hearing of the appeal we ordered that the appeal be dismissed. We said we would deliver our reasons subsequently. These are those reasons.
[2]
Background
The respondent owns apartments in Wentworthville and Girraween NSW. The respondent does not reside in the properties. The properties are rented for investment purposes.
The appellant is a licensed real estate agent who had an agency agreement with the respondent to manage the respondent's properties.
The appellant also conducted a property maintenance business in her own name trading as OPC Maintenance.
On an unspecified date the respondent requested the appellant to have some work done at his properties. That work included replacement of the electric oven at the Wentworthville property which the respondent's tenant had reported as being non-functioning, and replacement of downlights at the Girraween property.
The oven was replaced by the appellant's contractor (who was not a licensed electrician) in January 2021 and the appellant sent the respondent an invoice for $700 for that work.
In March 2021 the tenant reported to the respondent that when the oven was turned on several lights in the apartment started to flicker. The respondent thought that may have been caused by a fault in the residual current device ("RCD").
Th respondent asked the appellant for the qualifications of the contractor who installed the oven. The appellant eventually replied to the effect that that contractor was not a licensed electrician.
The respondent later alleged that the oven had not been installed in compliance with the manufacturer's warranty requirements, and that the RCD tripped every time the oven was turned on.
The respondent commenced proceedings in the Tribunal seeking an order that he be relieved from any obligation to pay the appellant's invoice for $700 given the matters alleged. In essence, the basis of the respondent's claim in the Tribunal was that he should be relieved from the obligation of payment because the oven and downlights at the two respective properties had not been installed by a licensed electrician.
The appellant also commenced proceedings in the Tribunal for compensation. The basis of the claim is not known to us, but the Tribunal dismissed that claim as it said all issues between the parties were dealt with in the matter from which this appeal is brought.
[3]
The Tribunal Decision
The Tribunal gave oral reasons at the conclusion of the hearing. The appellant did not apply for written reasons and did not provide us with a sound recording or transcript of the oral reasons. Therefore, we are unaware what reasons the Tribunal gave for its decision.
What we do know is that the Tribunal made the following orders:
"On 18-Aug-2021 the following orders were made:
1. The Tribunal orders that the respondent(s): KATINA LAZARIS T/A OPC MAINTENANCE ABN -13 106 824 767 (address deleted) is to cause the undertaking of the following work in a proper and workmanlike manner on or before 15-Sep-2021.
Details of Work order:
Arrange for a licensed electrician to attend the applicant's properties at Wentworthville and Girraween to inspect the relevant works and certify that the oven has been inspected and is properly installed at Wentworthville and the four downlights have been inspected and are properly installed at Girraween in accordance with the required guidelines.
2. Within 7 days of the production of the certificates referred to in Order 1, which are to be provided at the respondent's expense, the applicant is to pay the respondent the sum of $217.50 being the Cost of the oven ($497.50) less the sum of $280 paid by the applicant to the respondent for the installation of downlights at Girraween which were not carried out by a licensed electrician.
3. The applicant may seek to leave to renew these proceedings in the event these orders are not compiled with by the other party.
4. Reasons for decision:
Detailed oral reasons were provided to the parties at the hearing."
[4]
The Appeal
In her Notice of Appeal, the appellant challenged two matters. The first was the Tribunal's finding that the downlights should have been installed by a licensed electrician. The second was the Tribunal's finding that the oven should have been installed by a licensed electrician.
Her grounds of appeal were to the effect that the Tribunal had already made up its mind before the hearing, that the Tribunal "attacked" her and was "brutal" in its behaviour towards her, that the Tribunal did not follow the legislation and did not take into account other work which was done which was credited to the respondent.
The appellant sought orders reversing all the Tribunal's decisions, that the respondent was to pay her invoice, that the respondent was to pay for (unspecified) maintenance work and the installation of light bulbs, and to pay for the installation of a mixer tap.
Shortly before the hearing of the appeal the appellant provided documents which, the parties agreed, showed that the appellant had complied with Orders 1 and 2 made by the Tribunal.
[5]
Adjournment
The appellant sought an adjournment at the commencement of the hearing of the appeal.
The appellant said that she misunderstood what the appeal was about, and she had paid to appeal (and therefore should be able to have it heard when it suited her).
We refused the application. The appeal concerned the small sum of $700 and we were not persuaded that her misunderstanding would cause her any prejudice given she had complied with the Tribunal's orders. We were also not persuaded that her misunderstanding outweighed the fact that the respondent had been put to the cost, difficulty and expense of attending the appeal and would be put to further costs, difficulty and expense if the appeal was adjourned. We also considered that the Tribunal's had set aside half a day in which to hear her appeal. The mere fact that the appellant had paid for an appeal did not mean she was entitled to have it adjourned to another date when the Appeal Panel had already fixed a date which was suitable to her.
[6]
Decision
We dismissed the appeal at the conclusion of the parties' oral submissions.
As previously mentioned, we were not provided with a sound recording or transcript of the Tribunal's reasons, and so that fact alone would have prevented us from doing anything other than dismissing the appeal.
As is mentioned in the Tribunal's Guidelines for appeals, appeals are not a second hearing. Appeals are concerned with whether the Tribunal erred in its decision, and it goes without saying that an Appeal Panel must know what the Tribunal's reasons for decision were in order to determine whether there was some error in those reasons.
In oral submissions the appellant did not address any of the matters set out in her grounds of appeal. Further, in the absence of a sound recording or transcript of the hearing it would not have been possible for us to ascertain whether there was any substance to her allegations.
Of course, the appellant was given the opportunity to provide a transcript or sound recording of the hearing before the Tribunal to the Appeal Panel but did not avail herself of that opportunity.
Finally, as the appellant had complied with the Tribunal's orders and the amount in dispute was small, there was no apparent utility in hearing the appeal. The appellant said that the Tribunal's decision set a precedent but that is not correct. The Tribunal made its decision on the facts alleged and its decision is confined to those facts.
[7]
Orders
For those reasons we ordered that the appeal be dismissed on 16 November 2021.
[8]
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: 11 February 2022