Long v Antoun's Concrete Pumping Pty Ltd - [2019] NSWCATAP 56 - NSWCATAP 2019 case summary — Zoe

NSWNSWCATAP

Long v Antoun's Concrete Pumping Pty Ltd

[2019] NSWCATAP 56

NCAT Appeal Panel|2019-02-13

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2019-02-13

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

Background

These appeal proceedings arise out of the construction of a concrete driveway at residential premises owned by the appellant Margaret Long. The appellant brought proceedings in the Consumer and Commercial Division of this Tribunal seeking the payment of monies by way of compensation because of defects in the concrete driveway. In summary, those defects consisted of cracks in the concrete and the fact that the concrete had been delivered by the same supplier, the third respondent, Metromix Pty Ltd ("Metromix") from two different plants resulting in different coloured concrete being laid. The appellant claimed compensation for the removal of the existing driveway and its replacement with a new concrete driveway.
The appellant originally commenced proceedings in this Tribunal by filing an Application claiming compensation from Mr W Wakim, Mr Elias Youssef and a company associated with Mr Youssef. In that application the appellant said that she had contracted with Mr Wakim and the other respondents for the construction of a driveway on her property including the supply of materials and labour. She alleged faulty workmanship and defective materials had been supplied resulting in "defective colour" and cracks. It eventually emerged at a Directions hearing before this Tribunal on 7 April 2017 that Mr Wakim was an undischarged bankrupt. A number of further Applications were then filed by the appellant on 29 April, 2 May, and 17 May 2017. These named Mr C Antoun, the second respondent, a company associated with Mr Antoun, Antoun's Concrete Pumping Pty Ltd which is the first respondent and Metromix as respondents. In essence, these further Applications were based upon the same allegations as had previously been made against Mr Wakim except that they named Mr Antoun in lieu of Mr Wakim as the person substantially responsible for all of the concreting work, as the principal contractor. These further Applications were consolidated and were the Applications that came before a Senior Member for hearing and from whose Decision these appeal proceedings are brought.

[2]

The course of the hearing under appeal and the factual background

A hearing was conducted by a Senior Member over the course of one full day and two half days. The narration which follows is based on extensive documentation which was before the Senior Member and before us on appeal, as well as limited private transcriptions of the evidence before the Senior Member.
At all times, Metromix agreed that it had delivered concrete for the appellant's driveway sourced from two different plants, the colour of which was significantly different and required rectification at its expense. It offered to place a sealer over the concrete and to seal it with a colour which matched the appellant's requirements.
Another issue was whether and to what extent Mr Antoun or his company was in a contractual relationship with the appellant. He said that he had not met the appellant until the day of the concrete pour. He had previously ordered the concrete at the request of Mr Wakim, and at that stage did not know the name of the appellant. Any arrangement he had was with Mr Wakim, and it was Mr Wakim who had asked him to order the concrete for the job on the previous Friday, before he ever knew the appellant's name.
Included in the documentation was an invoice dated 16 January 2017 addressed to the appellant and to Elias Youssef from S Wakim for "fix and supply steel and concrete also coloured charcoal" in the sum of $11,300. There is a similar document with handwritten notation on it which attempts to break down the quoted $11,300 by reference to the cost of materials and the cost of labour including "3 men on concrete day", a labourer to take rubbish away, a formworker, removal of formwork, and sawcut. The appellant said that the arrangements with Mr Youssef fell through and Mr Wakim arranged for Mr Antoun to assist. Mr Antoun provided an invoice dated 23 January 2017 addressed to the appellant in the sum of $878 which we observe must be confined to his labour cost.
The appellant relied substantially on a document issued by Kuring-gai Council which indicated that on 19 January 2017 approval was given to a contractor named as Mr Antoun for "concrete pumping" at the appellant's property. She alleged that this document proved conclusively that Mr Antoun or his company was the principal concreting contractor on site for the construction of the concrete driveway.
We have been provided with a transcript of preliminary proceedings before this Tribunal on 20 September 2017. The appellant informed the Senior Member conducting those proceedings that she first met Mr Antoun on the morning of the concrete pour. This is to be contrasted with information furnished by her to us during the course of the appeal hearing that she had personally met Mr Antoun on the previous Friday. It was Mr Antoun's evidence that he first met the appellant on the day of the concrete pour. This is consistent with her initial statement to this Tribunal. It is inconsistent with the assertion made by the appellant to us during the course of the appeal hearing.
Further factual material is conveniently set out in an eighteen page statement made by the appellant dated 16 August 2017 which is contained in a folder filed by her in these appeal proceedings, and which it may be assumed was also before the Senior Member. In that statement the appellant said that she arranged for her friend Mr Wakim, a roofing contractor, to help her to construct a new concrete driveway at her home. She said that he promised to get her "tradesmen and subcontractors to do the concreting, the tradesmen are the form workers who will be doing the formwork and levelling concrete and the contractor undertaking to do the order for concrete who is the truck pump tradesmen who organises the concrete at the time of the job for me…" She said that Mr Wakim gave her an indicative total cost and said that he would arrange for the various trades persons to attend and they would be paid for each day they worked. She said that Mr Wakim nominated Chady Antoun as a person he would arrange to order the concrete and to pump it onto the site. By 16 January 2017 the site had been excavated. By 18 January 2017 formwork had been ordered and delivered and erected by workers introduced to her by Mr Wakim. Further work was carried out on Saturday 21 January following a Council inspection on 19 January, again by the form workers. She said that Mr Wakim told her on the Saturday that Mr Antoun would be ordering the concrete for delivery on Monday, 23 January 2017. On that day various trades persons arrived at the worksite including Mr Antoun and a pump labourer, as well as other persons who were involved in laying the concrete and finishing it off.
It is quite clear on the evidence of the appellant, and as found by the Senior Member that Mr Antoun was never engaged by her, other than perhaps indirectly through Mr Wakim to do anything other than order the concrete and to pump it from the delivery truck onto the site of the driveway. The actual work of laying and finishing the concrete was to be performed by others, who had no association of any kind with Mr Antoun.
There is no doubt, on the evidence before the Senior Member, that Mr Antoun ordered the concrete and pumped it onto the site after delivery. There is no doubt that the concrete consisted of two different batches containing significantly different colouring.
There was tendered into evidence before the Senior Member a number of audio recordings and transcripts of telephone conversations between Mr Antoun and a representative of Metromix. There is a record of Mr Antoun placing an order on 20 January 2017 for 14 m³ of "charcoal" concrete with a strength of 25 MPA for delivery on the following Monday at the appellant's premises. Later, a Metromix representative telephoned Mr Antoun and said that they were unable to supply charcoal, because it did not exist anymore. There was a discussion to the effect that Onyx was "a bit charcoal" and this was ordered. Later, in another telephone call confirming delivery for the following Monday, Mr Antoun said that he had "called the boys now" and was asked to increase the order to between 17 and 18 m³. This was confirmed.
In her written statements made to the Tribunal for the purpose of these proceedings the appellant said that she had decided to manage the project of construction of the driveway herself in order to save costs and she used Mr Wakim for the purpose of finding the appropriate trades persons for this purpose. It is clear from the overall evidence available to the Senior Member, that the appellant did not at any stage appoint a particular person other than Mr Wakim with overall control of and responsibility for the work that was to be performed. Accordingly, when something went wrong, there was in reality no person available to take responsibility for resolving it. This is what occurred when the batch of concrete delivered by Metromix from a different plant contained a different colour. Mr Antoun had no particular responsibility for the placement of the concrete when he was pumping it from the delivery vehicle onto the site.

[4]

The statutory matrix and appeal principles

This appeal is governed by section 80 of the Civil and Administrative Tribunal Act which states; 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) 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. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
Relevant also are the provisions of Schedule 4 to that Act which states Consumer and Commercial Division 12 Limitations on internal appeals against Division decisions (1) 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). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80 (2) (b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if: (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order.
These provisions and the manner in which they are to be applied have usefully been summarised by an Appeal Panel of this Tribunal in Collins v Urban [2014] NSWCATAP 17, and we adopt them for the purpose of these proceedings. At [66] the Appeal Panel said; In the case of an application for leave to appeal from a decision of the Consumer and Commercial Division, under cl 12(1) of Schedule 4 of the Act, the Appeal Panel's discretion to grant leave is only enlivened if the Panel 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).
And at [76] to [79] the Appeal Panel said; Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 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 because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), 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 - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55].
In discussing the general principles to be applied when considering leave to appeal the Appeal Panel said; [84] re leave to appeal The general principles derived from these cases can be summarised as follows: (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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.

[6]

The different colours in the concrete

This matter was conceded at all times by Metromix which offered to rectify the matter by applying a sealer, to which we have earlier made reference. The appellant resisted this, asserting that she was entitled to have the existing concrete driveway removed and replaced.
In detailed reasons the Senior Member identified the appellant's cause of action against Metromix as deriving from section 271 (1) of the Australian Consumer Law and noted that she was entitled to compensation pursuant to the provisions of section 272 (1) (b) of that Act. He identified the appropriate measure of damages as the cost of bringing the driveway "into conformity with the contract, provided that it is a reasonable course to adopt", relying on a decision of the High Court of Australia in Bellgrove v Eldridge (1954) 90 CLR 613 at 617- 618.
The appellant submitted that sealing the concrete was not an appropriate remedy because she had wished to hone it, and applying a sealer was not appropriate in the circumstances.
The appellant alleged that she had told Mr Antoun before the work had commenced that after the driveway had been finished off, she would arrange for it to be honed so as to expose the aggregate. Mr Antoun denied this. The appellant said that Mr Wakim was present during the course of this conversation. Whilst giving evidence before the Senior Member Mr Wakim said that any such conversation took place after the concrete had been delivered. This is another example where the version of events proffered by the appellant should not be accepted.
The appellant relied on statements which she said she had obtained from neighbours and visitors to her site evidencing her alleged conversation with Mr Antoun before the work had commenced. Tellingly, there is evidence that those statements were prepared with input from the appellant, and they strikingly all contain very similar language. The Senior Member rejected these statements on this basis. In our opinion he was not in error in doing so.
The Senior Member found that the appellant did not at any relevant stage indicate to anyone before the work commenced that she intended to have the concrete honed after it had been laid and finished by the workers on site.
The evidence of Metromix is that the concrete which was supplied was not suitable to be honed because it did not contain the correct mix of aggregate. There can be no suggestion that Mr Antoun or anyone else involved in the ordering of the concrete was aware that it was to be honed after being laid. The rejection of this part of the appellant's case was open to the Senior Member and cannot be called into question for the purpose of these appeal proceedings.
The Senior Member was entitled to rely upon evidence given on behalf of Metromix that the application of a coloured sealer would rectify the colour mismatch. The appellant's expert whom she called to give evidence in the proceedings, Mr Elvis Fantov did not reject this method of rectification if the concrete was not intended to be honed.
Accordingly, the remedy granted and the reasons therefor were also open to the Senior Member and on this basis it could not be said that his discretion miscarried in any way.

[9]

New evidence

During the course of the appeal hearing we asked the appellant to identify the new evidence which she wished to rely on. The appellant referred us to a transcript of a telephone conversation between Mr Antoun and a representative of Metromix after the concrete had commenced to be laid. Mr Antoun said something to the effect that the second batch of concrete supplied was 10 mm and not 20 mm. From this brief reference, the appellant sought to maintain that the second batch was faulty in that it did not have the requisite strength to be utilised in a driveway and could not be mixed with the first batch which seemingly was at full strength. This is the only evidence that we can find about any assertion that the second batch was of an incorrect strength. Certainly, no reference to this was contained in the Application before the Tribunal as formulated by the appellant. Indeed, it seems that this is a matter which the appellant seized upon for the first time when considering the contents of that brief reference in the transcript. Furthermore, this is not a matter which was put to either expert witness called to give evidence in the proceedings, Mr Dowling the NSW Manager of Metromix and Mr Fantov who was retained by the appellant.
When asked questions during the course of his evidence before the Senior Member about whether there had been a significant difference in quality between the two different batches provided by Metromix, Mr Fantov said that it would be impossible for him to express any opinion without having conducted detailed testing on each of the concrete batches, and he had not done so. We are left with the evidence provided in transcripts of telephone conversations between Mr Antoun and representatives of Metromix that he had ordered the correct strength concrete from Metromix, namely 25 MPA.
We refer to Schedule 4 clause 12 as set out above. Significant new evidence may only be adduced if it is evidence that was not reasonably available at the time the proceedings under appeal were being dealt with. This is not such evidence. It was open to the appellant to adduce expert evidence about the strength of the concrete during the course of the hearing before the Senior Member if she had wished to do so. Given the tenuous nature of this evidentiary material upon which the appellant now wishes to rely, and given that to admit it would require this discrete matter to be litigated, by affording all other parties and their experts an opportunity to address it, it is not appropriate to permit the appellant to adduce evidence of this kind in these appeal proceedings. Her application to introduce and rely on such evidence is rejected.

Long v Antoun's Concrete Pumping Pty Ltd

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Judgment (14 paragraphs)

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Cases Cited (11)

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