Ly v Super Demolitions Pty Ltd

Scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act).
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: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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).
4. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered 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.
5. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
6. In Collins v Urban, the Appeal Panel stated 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.
7. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: 13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

Submissions and evidence

1. In deciding the appeal, we have had regard to the following: 1. The Notice of Appeal lodged on 2 June 2021 and attachments constituting the evidence filed before the Member below (13 pages); 2. The appellant's submissions lodged on 23 August 2021 and 14 July 2021; 3. The respondent's submissions and evidence lodged on 17 August 2021 (7 pages).

Notice of Appeal

1. The Notice of Appeal was lodged on 2 June 2021, which is within the 28 day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules).

Grounds of Appeal

1. At the hearing, the appellant confirmed that the grounds of appeal specified in the Notice of Appeal are: 1. The Tribunal failed to consider the contract documents and in particular a plan provided to the respondent with the driveway and carport marked "carport to stay"; 2. The Tribunal failed to consider whether two page terms and conditions relied upon by the respondent to levy additional charges for undiscovered asbestos were provided to the appellant and formed part of the contract; 3. The Tribunal failed to consider that the respondent commenced work before the construction certificate was issued by the relevant council; 4. The Tribunal did not permit the appellant to present her case and the hearing time was not adequate; 5. The Tribunal failed to consider that the contract was a fixed price contract and that the terms and conditions prohibited the respondent from adding additional charges for the removal of undiscovered asbestos. 6. The Tribunal should have awarded $3500 by way damages for breach of contract for the additional asbestos charge; and $12,000 for damages for breach of contract being the reconstruction cost of the driveway and carport that were demolished contrary to the terms of the agreement.
2. At the hearing the appellant and the respondent made further oral submissions.
3. We consider that in order to determine the issues between the parties the Tribunal was required to determine the following questions of fact: 1. What was the scope of the contract? 2. What were the terms and conditions of the contract? 3. Did the parties attend a meeting on 2 June 2020, and if so, did the parties vary the terms of the contract to exclude the demolition of the driveway and carport?
4. To dispose of the appeal, it is sufficient to refer to two of the several grounds relied upon by the appellant, that the Tribunal erred on questions of law in that it failed to address any evidence which indicated that Ms Ly had specifically instructed Mr Fatouleh to leave the driveway and carport intact and had failed to determine the scope, terms and conditions of the contract, all of which were in dispute. It was further alleged that the Tribunal did not permit Ms Ly to make her submissions and explain the evidence she had presented.
5. We note that the appellant was specifically directed to present a sound recording or transcript of the proceedings such that we could determine the issue of whether the Tribunal erred by denying the appellant an opportunity to present her case as alleged. Without a transcript or sound recording we are unable to arrive at a finding and we make no further comment in that regard.

Other issues raised

1. The appellant submitted that the reasons were inadequate. We agree, in our view the reasons did not adequately address the issues in dispute.
2. The requirement that reasons for decision be adequate has been extensively considered both judicially and by Appeal Panels of the Tribunal, most recently in Seraglio v Le Sommet Pty Ltd [2021] NSWCATAP 150 at [41]: As was said by the President, with whom Ward JA agreed, in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [68], the quality of reasons necessary for the reasons to be adequate may vary both with the nature of the decision-maker, that is, whether or not it is a court or tribunal, and the nature of the question being decided. Some aspects of decision-making, such as findings on pure credibility or matters that necessarily call for estimation or impression, may require less or only allow for limited reasoning to be exposed. Credibility was obviously in play in this case, at least in terms of accuracy of recollection. At [70] his Honour said that it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court. At [73] his Honour cited, with apparent approval, what was said by Fitzgerald P in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 477; [1995] QCA 187 of the Queensland Retail Shop Leases Tribunal, namely that that Tribunal might not be required to submit the material before it to the most meticulous analysis and carry into the reasons for its decisions a detailed exposition of every aspect of the evidence and the arguments or incorporate an extended intellectual dissertation upon the chain of reasoning, but at least a basic explanation of the fundamental reasons which leads the Tribunal to its conclusions was necessary.
3. In our opinion the Tribunal's reasons did not meet the minimum acceptable standard for reasons, which is all that is required (see Orr at [66]).
4. While a Tribunal is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties. In our view the reasons did not do justice to the issues posed by the parties' cases. The written reasons failed to identify the issues in dispute and failed to make critical findings of fact. As a result the written decision did not set out the steps taken to arrive at the result and no analysis of the competing evidence was set out. We consider that the inadequacy of reasons constitutes an error of law and that the appeal must succeed.

Conclusion

1. Orders 1. The appeal is allowed; 2. The decision of the Tribunal dismissing proceedings GEN 20/51359 is set aside; 3. The matter is remitted to the Tribunal, differently constituted, to be determined according to law, with such new evidence as the Tribunal may permit.

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: 15 September 2021