Le v Citystruct Pty Ltd & Anor

History of the appeal and grounds of appeal

1. The appellant filed a Notice of Appeal on 18 November 2015. The appellant said she received notice of the Decision on 2 November 2015.
2. The proceedings were listed for callover on 15 December 2015 and fixed for hearing on 23 March 2016. On the application of the appellant, various orders were made by the Appeal Panel extending time for her to provide her evidence in support of the appeal. Ultimately the appeal was first listed for hearing on 16 May 2016.
3. When the appeal came on for hearing on 16 May 2016 a number of things occurred.
4. The Appeal Panel identified that the first respondent Citystruct Pty Ltd was deregistered in February 2016. Consequently, the appellant withdrew the appeal against the first respondent which was dismissed by order of the Appeal Panel on 16 May 2016. However, on this day the appellant sought to continue her appeal against the second, third and fourth respondents. At that time, only the second respondent (Poonan) appeared. He was represented by his father Mr Bala Poonan who appeared by telephone.
5. The hearing could not proceed on that date. One reason was that the appellant sought to rely on the sound recording and various parts of the hearing which had occurred before the Tribunal. However, the appellant had not provided a copy of the sound recording or details of the evidence provided to the Tribunal at first instance. Consequently, the Tribunal made directions for the provision of the sound recording and to allow the respondents to provide any evidence in reply. At this time the Appeal Panel made an order that a party was not entitled to rely on any documents lodged with the Appeal Panel after the dates provided in the directions without leave of the Appeal Panel, which leave was only to be granted in exceptional circumstances. The Appeal Panel also made a note that the parties had been encouraged to have settlement discussions to try and resolve their dispute or seek legal advice.
6. The proceedings were subsequently listed on 6 July 2016 to complete the hearing of the appeal against the second, third and fourth respondents. On this occasion, the appellant appeared (and where necessary was assisted by an interpreter) and Mr Bala Poonan again appeared on behalf of his son, the second respondent.
7. Neither the third respondent (Martinez) or the fourth respondent (Moreno) appeared at the hearing of the appeal on 6 July 2016. However, the Appeal Panel was satisfied that notice had been given to each of the respondents by email and there was no evidence before the Appeal Panel to suggest that notice of the hearing had not in fact been received. Accordingly, the Appeal Panel was satisfied it could continue with the hearing in the absence of the third and fourth respondents.
8. It should be noted that, in its directions dated 16 May 2016 that the Appeal Panel recorded there were only two issues for determination. These were: 1. Whether the Tribunal was in error in failing to conclude that the respondents had done unauthorised works identified in section 5C of the Notice of Appeal; and 2. Whether order 2 (collection of goods) made by the Tribunal should be varied in a manner sought in section 5C of the Notice of Appeal.
9. When the hearing commenced on 6 July 2016 the Appeal Panel identified the documents on which the parties intended to rely. The appellant relied on: 1. The Notice of Appeal dated 18 November 2015 and the attachments to that document; and 2. A document entitled appellant's submissions dated 28 February 2016 together with the attachments.
10. A copy of these documents was provided to the first respondent's representative as he did not have a copy with him.
11. During the hearing of the appeal, the appellant identified various additional documents upon which she sought to rely. These were marked as Exhibits in the appeal and admitted by consent. The documents were: 1. Exhibit A - condition report prepared by the first respondent dated 26 February 2014; and 2. Exhibit B - photographs of the respondent unit 1 in Regent Street showing the external façade of the building, contained in a report from Child Building Inspection dated 25 February 2014.
12. These Exhibits related to the issue of whether or not the respondents were responsible for the removal of a window and/or a hole in the wall of the Regent Street property, the appellant contending that the opening had been cut into the building by the respondents who undertook unauthorised work. The parties agreed that these documents had been provided to the Tribunal and formed part of the evidence at first instance.
13. The appellant also made reference to a further report which was not in evidence in the appeal and which the second respondent objected to its tender. This document had not been served in accordance with the Appeal Panel's directions and it appeared that the document was not evidence present to the Tribunal at first instance.
14. Lastly, the appellant sought to rely on two statutory declarations being: 1. a statement from the appellant dated 10 March 2016; and 2. a statement from Sam Housepain dated 10 March 2016.
15. The first respondent provided no documents in support of his position nor had he or the third or fourth respondents filed a reply, evidence or submissions in response to the appeal. However, the first respondent made oral submissions at the hearing on 6 July 2016.

Submissions

1. As indicated above, the appellant provided written submissions in support of her appeal. In addition, the appellant and the second respondent each provided oral submissions in the course of the hearing.
2. In her notice of appeal, the appellant set out the following grounds of appeal in section 5B of the Notice of Appeal: All claims relate to the unauthorised works conducted by Citystruct or consequential cost caused by Citystruct which Tribunal failed to consider and was wrong in its determination as the decision was: 1. Against the weight of evidence; and or 2. Not fair and equitable 2. Not clear in itemized details to collect commercial equipment (order 2).
3. The appellant sought the following orders in section 5C of the notice of appeal: Order 1 - The respondent Citystruct Pty Ltd pay the appellant Le Thi Thu Le the sum of $12,199.93 that are: a) $6,678.00 - for unauthorised work (of properties Pitt St and Regent St Redfern). b) $2,289.00 - for total cost of unauthorised cutting an opening window including City Council fee and labor work to rectify it by City Council's order that are: - $1,000.00 - for labor work to rectify the unauthorised cutting an opening window in the premises by City Council's order. - $329.00 - for City Council inspection fee. c) $1,457.07 - for miscalculating agent managing fee. d) $70.86 - for refund managing fee after Citystruct agent business was closed on 7/7/2015. e) $1,100.00 - for replacement of missing rear fired door (quote enclosed) Order 2 - the appellant to collect from the respondent the commercial equipment which belongs to appellant in details itemized (as per photos images in the application file). The appellant cannot collect these items without the specific order in details from the Tribunal, as some of them are stored at the current landlord properties of Cristian Matinez & Anita Moreno's three (3) different businesses addresses, which all had been closed are: "Citystruct Real Estate" at 28 Botany St, Alexandria, "La Colombiana Café" at 191 Regent St, Redfern and Fish & Chip take away" at 35 Botany St, Alexandria are: a) Double doors stainless steel fridge William brand, b) Single door food drink fridge Scope brand, c) POS cash register system German brand, with 2 printers and 1 cash register d) 2 cool room blowers e) Kitchen double shelves stainless steel, and etc…
4. To the extent necessary, the appellant sought leave to appeal and said the decision was not fair and equitable, was against the weight of evidence and/or relied on new evidence in the form of statutory declarations which she said was now available but was not evidence reasonably available at the time of the original hearing.
5. In her written submissions the appellant said: 1. She was a "victim of fraud and misleading conduct" by the second respondent (Poonan) who permitted the fourth respondent (Moreno to illegally run the real estate agency without a licence. In this regard the appellant said Ms Moreno "conspired to organise unauthorised maintenance work in (the appellant's) property without (her) authority or… consent for the purpose of taking my rental income to pay to her husband (the third respondent - Martinez)"; 2. Electrical work was carried out by Mr Martinez that was substandard and about which the appellant's tenants have complained; 3. There have been ongoing problems with her property in Regent Street were rear balcony tiles are "cracked and heavily leaking"; 4. The third respondent (Martinez) organised a handyman to cut an opening in the brick wall to install a window in a living room in the Regent Street property without authority. In this regard the appellant relies on the statutory declaration of Mr Sam Housepain, referred to in the appellant's submissions as "Sam the handyman"; 5. A fire door was missing to the Regent Street property; and 6. The respondent has not returned commercial equipment worth $10,000.00 as ordered by the Tribunal.
6. In oral submissions, when asked by the Appeal Panel why the Tribunal was wrong in its decision, the appellant made the following further submission: 1. She should have been given a chance to provide further evidence, including in relation to the hole in the wall and removal of the window; 2. She has been unable to collect her money from the first respondent as ordered by the Tribunal; and 3. The order made against the first respondent in connection with the collection of her equipment has not been complied with. In this regard she said that she has seen her goods which are at two properties, namely Regent Street, Redfern and Botany Street, Alexandria. In making this submission the appellant did not suggest that any of the respondents now occupied these premises or otherwise had a right to access the premises.
7. In relation to her submission that she should be given an opportunity to provide further evidence, the appellant agreed she was given an opportunity to provide her evidence prior to the original hearing by the Tribunal which occurred on 10 August 2015.
8. In relation to the new evidence from Sam Housepain, the appellant indicated she could not get a statutory declaration from Mr Housepain prior to the original hearing because he was "very busy" and told her he was not able to come to the original hearing and that she was unable to get any evidence from him until the time of the appeal. In relation to her claims against the second, third and fourth respondents, when asked to identify the basis of the claims the appellant said that they were responsible for taking her money as directors of the first respondent Citystruct Pty Ltd.
9. When questioned by the Appeal Panel about the equipment she had recently seen which had not been returned, she identified a double door refrigerator, a point of sale cash register and shelves which she saw at the Botany Street property and a kitchen table which she saw at the Regent Street property. In relation to these items she said she had tried to get the equipment however there was no evidence from her concerning who she had spoken to at the relevant properties nor what had occurred or had been said in response to any request. However, it appeared from her submissions that the people in control of the properties on which her goods were now located were not the respondents to the appeal.
10. In relation to Exhibits A and B, the appellant said that Exhibit B, which was an inspection report prepared the day before the Exhibit A, was prepared by her real estate agent, the first respondent. She said that Exhibit B shows that the window was not missing nor was there a hole in the wall. Consequently, the appellant said the Appeal Panel should be satisfied that the Tribunal was in error in reaching its conclusion at Decision [27].

First Respondent's submissions

1. Mr Poonan submitted that the Decision was correct and the reasons were "clearly explained". Mr Poonan submitted that the appellant had been given 28 days to collect her goods from 27 October 2015 and had failed to do so.
2. When asked by the Appeal Panel where the equipment, the subject of order 2 was now located, Mr Poonan indicated he did not know.
3. In relation to the so called unauthorised work in removing the window, Mr Poonan submitted this work was done by the appellant and the respondents had no responsibility.
4. Finally, in relation to the liability of the respondents generally, Mr Poonan submitted that the real estate agent was a company of limited liability and that the individuals had no responsibility in the present circumstances. In this regard, Mr Poonan submitted that the second respondent (Reginald Poonan) had resigned as a director of the first respondent well prior to the matters, the subject of the dispute. However, it should be noted by the Appeal Panel that no searches to corroborate this assertion were provided in evidence in the appeal. In relation to Exhibits A and B, and the dispute concerning the window, the respondent pointed to the condition report (Exhibit A) and said that as of 26 February 2014 there was a missing window and a hole in the wall: see item - Lounge Room under the heading "comments" on page 1 of Exhibit A. That is that the window had already been removed before the report was prepared.

Consideration

1. The present appeal relates to whether or not the Tribunal was in error in failing to make orders against the second, third and fourth respondents. Insofar as the appellant originally sought orders against the first respondent in her Notice of Appeal, these issues no longer arise for determination in the appeal because the first respondent has been deregistered and the appeal insofar as it relates to the first respondent has been dismissed.
2. The only order sought in the Notice of Appeal that appears to relate the second, third and fourth respondents is order 2 set out in section 5C of the Notice of Appeal. In short, the form of the orders sought on appeal is that order 2 made 23 October 2015 be modified so as to identify the particular items of commercial equipment to be collected by the appellant and to identify the premises in which they are stored. Section 5C of the Notice of Appeal provides a list of the equipment which the appellant says should have been identified in the order.
3. In addition, and while not identified as a matter for determination in either the Notice of Appeal or in the issues for determination identified by the appellant and recorded in the directions made by the Appeal Panel when the proceedings were adjourned on 16 May 2016, the appellant also appeared to assert that money orders should be made against the second, third and fourth respondents personally in respect of the claims the appellant had made against the first respondent at the original hearing. These claims appear to be based on the fact that the respondents, or some of them were responsible for the actions of the first respondent. In this regard the appellant said she was a "victim of fraud and misleading conduct by Reginald Poonan (Registered Licensee) to permitted Anita Moreno (Property Manager) illegally running the Real Estate agent without a license". In this regard the appellant said "(Ms Moreno) has misled me and conspired organise unauthorised maintenance work in my property without my authority or consent for the purpose of taking my rental income to pay her husband named Cristian Martinez should not be tolerated."
4. In relation to the "unauthorised maintenance work", this appears to relate to electrical work, cracked and heavily leaking tiles on a balcony, a missing fire door and the cutting into a brick wall of the appellant's property at Regent Street to install a window, the work in relation to the installation of the window also giving rise to a fine being imposed upon the appellant by the Local Council because that work was carried out without Council approval.
5. The appeal was lodged in time.
6. The appellant has a right of appeal on a question of law and otherwise with leave of the Appeal Panel: see s80(2)(b) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act). Because the appeal is from a decision of the Consumer and Commercial Division of the Tribunal, leave may only be granted if the appellant demonstrates she may have suffered a substantial miscarriage of justice: see Clause 12 Schedule 4 of the NCAT Act. The principles applicable to the grant of leave were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17.
7. In relation to the appellant's appeal seeking to vary order number 2, in our view this appeal cannot succeed for several reasons.
8. First, order 2 is directed to the appellant and requires her to collect her goods from premises belonging to the first respondent. The only parties to this order are the appellant and the first respondent. However, the appeal in respect of the first respondent has been dismissed in circumstances set out above. Therefore there is no power of the Appeal Panel to make orders in respect of any dispute between the appellant and the first respondent.
9. Secondly, it seems clear from the submissions made by the parties in the appeal that none of the second, third or fourth respondents are in possession of or otherwise have control of the premises which the appellant has identified as the locations where the goods are now to be found. Certainly there is no evidence before the Appeal Panel to suggest that the respondents or any of them have possession custody or control over the identified goods. Rather, it would seem that the goods are in possession of a third party or parties and that these persons were not parties to the original proceedings to which the appeal relates.
10. Thirdly, having regard to the above, the modification of the orders would not serve any utility and, in any event, such modifications should not be made except in circumstances where the third parties who currently have possession of the goods are afforded an opportunity to make any submissions that might be relevant to the question of who has title in the goods.
11. Fourthly, no cause of action against the second, third and fourth respondents has been identified by the appellant, nor is the Appeal Panel able to discern any cause of action for which the Tribunal has jurisdiction that would permit the Appeal Panel to make any orders against the second, third and fourth respondents in connection with the goods.
12. Accordingly, this ground of appeal fails.
13. The second ground of appeal relates to the alleged "fraud or misleading conduct" of the second, third and fourth respondents. In essence, the claims made arise because the appellant says that various work carried out to her properties was not authorised by her. In respect of some of the work she also claims that it was defective. The appellant in her written submissions claimed a total of $18,942.00: see written submissions page 4 of 4 at 2). In oral submissions the appellant claimed $22,719.07. This was made up as follows: 1. $1730.00- Incorrect deduction for water service 2. $1457.07- Miscalculation of rental income including double charging, overcharging and charging without entitlement 3. $6678.00- Illegal claim for cutting into window opening without approval 4. $2854.00- Council fine for illegal window opening 5. $10,000.00- value of items removed from the business premises and not returned.
14. In relation to the amount of $1730.00, the Tribunal dealt with this issue at Decision [25]. The Tribunal found that this amount had been wrongly deducted by the first respondent from rent received by the first respondent on behalf of the appellant. The Tribunal made an order that the first respondent reimburse this money.
15. However, no legal basis has been put forward by the appellant as why any of the first, second or third respondents were liable to the appellant for this amount. The Tribunal found that the first respondent was the real estate agent responsible for managing the appellant's properties and the first respondent received rent and maintained the relevant rental ledger for the properties. An order for reimbursement was made by the Tribunal in favour of the appellant against the first respondent. Accordingly, no error is shown and the claim by the appellant for an order in her favour against the first, second or third respondents fails.
16. In relation to the claim for $1457.07, being management fees and associated charges, the Tribunal found at Decision [30] that the first respondent was liable to pay this sum also on the basis that it had wrongly calculated and incorrectly charged excessive management fees. This amount together with the sum of $1730 formed the award originally made in favour of the appellant against the first respondent which was order 1. This order was not challenged on appeal.
17. Again, no legal basis was put forward by the appellant as to why the second, third or fourth respondents would be liable to her for amounts wrongly charged by her agent, the first respondent. Accordingly, no error is shown and therefore this claim by the appellant is also unsuccessful.
18. In respect of the claims for $6678.00 and $2854.00, these claims relate to the cutting into the wall of the premises at Regent Street and the installation of window. The Tribunal dealt with these claims at decision [27]. There, the Tribunal said: As for the illegal window, I find the applicant has not been able to discharge her onus of proof in that regard. The statutory declaration of Cristian Gonzales is so garbled that it is of no assistance. In any case, that document does not state who originally cut the opening for the window, and that is the crucial issue in my opinion. If that order was given by the applicant, she bears the responsibility for any associated costs. If the window opening was ordered by the real estate agent without approval, then in my opinion the applicant would be entitled to reimbursement for any associated costs stop both parties asked the question: why would either of them do such a thing without orders or without Council approval. Neither party can answer that question or prove how the window opening did come to be made. The applicant of course has the onus of proof. I am unable to find she has discharged owners.
19. The appellant sought to rely on statutory declarations from herself and Mr Sam Housepain both made 10 March 2016 to support her contention that she did not authorise the work and it was the responsibility of the real estate agent, the first respondent. The statutory declarations form part of Annexure G to the appellant's written submissions. The effect of the evidence from Mr Housepain is that he says he did not cut the window opening nor was he responsible for the installation of the aluminium window frame. He then says: I did not know this cut brick wall to opening a window was illegally done by Mr Cristian Martinez without (the appellant's) authority which caused her to pay a heavy fine and an order to fix it by the City of Sydney Council. I only did the waterproof for the rear balcony, Mr Cristian Martinez said will pay me when he get the money from Ms Le but he has never paid me for the waterproof job.
20. In her statutory declaration, the appellant says: I did not authorise or give any consent to Cristian Martinez to cut the brick wall to open a window in the living room on the first floor of my property…
21. She also gave evidence about purported conversations with the third respondent, Mr Martinez concerning the work and said he "was the mastermind of the cut open window event for the purpose of illegally taking my rental money without my authority or my consent".
22. The evidence set out in the statutory declarations of the appellant and Mr Housepain was not evidence provided to the Tribunal at the original hearing. Rather, it was new evidence upon which the appellant sought to rely at the hearing of the appeal in support of her application for leave to appeal.
23. The appellant has sought leave to appeal on the basis that significant new evidence is now available that was not reasonably available at the time of the hearing. We have treated the statutory declarations of the appellant and Mr Housepain as being part of the new evidence upon which the appellant wishes to rely. However, while the evidence might be "new" in the sense that it was not provided to the Tribunal at the original hearing, we are not satisfied that the evidence identified was not reasonably available at the time of the original hearing. Consequently, the evidence should not be admitted in the appeal. In Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 the Appeal Panel dealt with what the expression "not reasonably available" means: see Al-Daouk at [19] and following. To use the expression of the Appeal Panel in that case at [28], "there is no feature of the evidence or the witness who provided the evidence" in the present case "to suggest it could not have been obtained at an earlier time and was not, in that sense, reasonably available" at the time of the original hearing. Certainly this is so in the case of the appellant whose evidence is to the same effect is that dealt with by the Tribunal in the Decision at [27].
24. Further, even if the evidence of Mr Housepain was to be accepted for the purpose of determining the issues raised on appeal, that evidence does not address the critical issue identified by the Tribunal, namely whether the appellant or the real estate agent approved the work in question. Mr Housepain provides no evidence about who approved the works to cut the wall opening, simply that he was not the person who undertook the work.
25. Each of the parties relied upon Exhibit A and B which were tendered in the appeal. In the case of Exhibit B, the appellant said these photos show the state of the building recorded in a report of Childs Property Inspections Pty Ltd (Childs Report), said to have been taken on 25 February 2014 and that there was no cut in the wall at that time. The appellant then relied on photographs "taken by the City of Sydney Council" of the window opening. On the other hand, the first respondent relied upon Exhibit A, a tenant incoming inspection report dated 26 February 2014, which showed that the window in the lounge room was missing.
26. The problem with these photos is that the Childs Report is not dated nor are the photos in that report date stamped. Rather, the caption which has been inserted underneath the words "Page 31" of the report asserts the photographs were taken on 25 February 2014. In any event, even if the window opening was cut on or about 25 or 26 February 2014, this does not resolve the issue of who authorise the work in question.
27. It is clear from the Decision at [27] that the Tribunal was not satisfied on the evidence before it that the first respondent or one of the other respondents on its behalf had ordered the work without the authority of the appellant.
28. Where there is competing evidence and in the absence of any reason why the first respondent real estate agent would otherwise request work to the appellant's premises without authority, it seems to us that the appellant has not demonstrated any relevant error by the Tribunal in reaching the conclusion to reject this claim. Accordingly, we are not satisfied that leave to appeal this aspect of the Tribunal's Decision should be granted and this ground of appeal fails.
29. In relation to the claim for a money award in the sum of $10,000 in respect of commercial goods the appellant says were left on various premises, orders were made for the appellant to collect her goods from nominated premises.
30. It would seem from the submissions made by the parties in the appeal that, at the time this order was made, the premises in question were still occupied by some or all of the respondents. Order 2 itself refers to the appellant collecting "any commercial equipment stored in premises belonging to the respondent at a mutually agreed time and at her cost, no later than 28 days of the date of these reasons". It is also clear that the appellant did not collect her goods at the time the orders were made, namely within 28 days from 23 October 2015, and that the premises in question are no longer owned or occupied by any of the respondents.
31. No legal basis was put forward on appeal that would entitle the Appeal Panel to make an order against the second, third or fourth respondents in respect of the identified goods. Further, no evidence was provided to the Appeal Panel that any of the second, third or fourth respondents have possession of the appellant's goods or are under a legal obligation to deliver up possession of the goods to the appellant.
32. Accordingly, insofar as the appellant seeks orders against the second, third or fourth respondents for return of her goods or for compensation in respect of the goods, this claim fails.
33. The final matters to deal with relate to the appellant's claims concerning electrical works and tiling works done to the balcony of her premises in Regent Street and a missing fire door.
34. The submissions made in relation to the electrical and tiling work suggest that the nature of the complaint is that the appellant was seeking "the additional amount of $4948.00 for unauthorised maintenance work": appellant's written submissions page 3 of 4. This claim appears to assert that unauthorised maintenance work was carried out by the first respondent for which the appellant had received invoices from the first respondent as set out in the table found in the appellant's written submissions, page 2 of 4, for which she seeks to be "reimbursed".
35. The claim for reimbursement is one made against the first respondent, her agent. Otherwise, the appellant has not identified the legal basis upon which she would be entitled to recover these amounts against any of the second, third or fourth respondents. The invoices for the works are attachment "C" to the appellant's written submissions. These invoices were issued by a company called Vilmor Pty Ltd. To the extent any works done by this company were deficient, this was not a dispute to be resolved in the original proceedings or on appeal. This is because Vilmor Pty Ltd was not a party to the original proceedings or this appeal. Accordingly, these grounds of appeal should be dismissed.
36. In relation to the missing fire door, the Tribunal dismissed this claim for the reasons set out in the decision at [33]. The Tribunal found that the fire door was missing however concluded that the appellant had not shown any of the respondents were responsible for its removal.
37. No evidence has been identified by the appellant to demonstrate that this finding of fact was wrong. No submissions have been provided by the appellant that would lead the Appeal Panel to conclude any relevant error has been made.
38. Accordingly, this aspect of the appeal also fails.

Orders

1. The Appeal Panel makes the following orders: 1. Leave to adduce fresh evidence is refused 2. Leave to appeal is refused; 3. The appeal is otherwise dismissed.

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: 26 July 2016