Maciejak v Szekely

Hearing of 22 October 2018

1. The appeal was first listed for hearing on 22 October 2018. Mr Maciejak was represented by a solicitor, and Mrs Szekely was represented by her daughter, Ms Nathalie Szekely. Ms Szekely, who had represented her mother at the Tribunal hearing, has a law degree, but does not hold a practising certificate.
2. On the day of the appeal hearing, Ms Szekely was clearly unwell. We considered it was in the interests of justice that the matter be adjourned. We made the following orders: . . . 2. Leave granted to the respondent to be legally represented. 3. On or before 12 November 2018, the appellant to file and serve: (a) an Amended Notice of Appeal; (b) submissions; (c) the sound recording of the hearing on 5 June 2018 in matter HB 17/48911, together with the typed transcript of any relevant parts on which the appellant proposes to rely at the hearing. 4. On or before 3 December 2018, the respondent to file and serve: (a) An Amended Reply; (b) Submissions; (c) The typed transcript of any relevant parts of the sound recording on which the respondent proposes to rely at the hearing. 5. The appellant to file and serve any submissions in reply on or before 12 December 2018.
3. The adjourned hearing was subsequently listed for hearing on 13 December 2013. On that occasion each of the parties represented themselves, although Mrs Szekely was assisted by a friend, Mr Tolley.
4. While Mrs Szekely obtained legal advice, she decided not to be legally represented at the hearing of the appeal. Her solicitor prepared and filed submissions dated 27 September 2018, to which reference is made below.
5. Mr Maciejak decided not to file an amended notice of appeal. Nor did he provide the sound recording of the Tribunal hearing or a typed transcript of any part of that hearing. He did however, on 4 December 2018, file submissions which had been prepared by his solicitor.

Nature of an appeal

1. As we explained to the parties at the hearing, s 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

A question of law

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an "error of law" giving rise to an appeal as of right.
2. In Prendergast the Appeal Panel also stated at [12] that, in circumstances where the appellants are not legally represented, it is apposite 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).
3. Save for one matter, we cannot identify any error of law in Mr Maciejak's notice of appeal or in his written submissions. The possible exception is the submission that some of the findings of fact made by the Tribunal were made without any evidence. If established, that would constitute an error of law: Prendergast at 13.
4. However, save for the materials attached to an affidavit of Mr Maciejak dated 24 September 2018, Mr Maciejak has not provided any of the evidence before the Tribunal to the Appeal Panel. As noted, he did not provide the sound recording, or a transcript of the relevant parts of the hearing on which he wished to rely on the appeal.
5. In the absence of a recording or transcript of the evidence given at the hearing, it is impossible for the Appeal Panel to conclude that any finding of the Tribunal was made without evidence. In these circumstances, this ground of appeal must be dismissed. Accordingly, as we explained to Mr Maciejak, he needs leave to bring his appeal.

Leave to appeal

1. 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 the Appeal Panel is satisfied 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).
2. 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 an Appeal Panel of the Tribunal conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: (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.
3. As was explained in Pholi v Wearne [2014] NSWCATAP 78 at [32]: Even if the appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
4. It is necessary to refer briefly to the affidavit of Mr Maciejak dated 24 September 2018. The usual rule is an appellant cannot rely on evidence at the appeal which was not before the Tribunal at first instance, unless that evidence was not reasonably available at the time of the hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. Quite clearly, the evidence of Mr Maciejak contained in his affidavit was evidence that was reasonably available at the Tribunal hearing, as the affidavit simply sets out Mr Maciejak's evidence of the work he performed for Mrs Szekely. To the extent that the affidavit contains Mr Maciejak's submissions, we will take those submissions into account. To the extent that the affidavit amplifies evidence he gave to the Tribunal, we will ignore it. Attached to the affidavit are some 26 pages of annexures. These documents contain emails, quotes, invoices photographs and reports. To the extent that this was evidence that was before the Tribunal we will take that evidence into account in considering Mr Maciejak's submissions.

Decision

1. Before considering the grounds of appeal, it is appropriate to summarise the Tribunal's findings and its reasons for decision.
2. First, as noted above, the Tribunal ordered Mr Maciejak to pay Mrs Szekely $16,275.00.
3. Secondly, at [5] to [7] the Senior Member set out her findings concerning the terms of the contract between the parties. She summarised her observations of the totality of the evidence given by both parties at [7] as follows: The respondent claims he never contracted with the applicant for the works alleged and that the payment represented loans the applicant gave to him. He claims he was not licensed to do such work and when he did do work for the applicant he provided her with an invoice like the one dated 28 January 2015. The Tribunal rejects the evidence of the respondent on this point. The Tribunal is satisfied that he did do the work which the applicant has outlined and that the monies recorded as paid by the applicant were for the work done. The [applicant's] evidence was consistent and detailed. When the respondent was asked if he had paid back the loans and if so when, his evidence was vague. Further, he alleges that he did not do works and that other contractors who he referred did the works and that the monies were paid directly to contractors. Next to some of the items in the diary are contained words such as "materials", that is not consistent with a loan. Further, on 2 October 2015 the respondent provided the applicant with a typed and signed document that refers to a seven year warranty. The respondent claims that was a general statement which only applied if he did roof work. The Tribunal rejects that explanation, as it seems odd if he only did cleaning and general work as he maintains that he would provide that document. The Tribunal is satisfied from the evidence of the applicant that the amounts paid were for works done by the respondent and not for loans. Further, given this finding, where relevant in the case the Tribunal prefers the evidence of the applicant over the respondent. (emphasis added)
4. The Tribunal deal with the items set out below on the basis of the evidence before it: 1. Damage to a tap or pipe in the course of work related to roof repairs and gutters: The Tribunal was satisfied that Mr Maciejak's employee damaged a water pipe and that as a result Mrs Szekely had to pay to have it repaired and paid excess water charges. The Tribunal allowed $800 in relation to water charges, and $385 for repairs, a total of $1,185. 2. Rectification of two garage roof pipes: The Tribunal was satisfied that Mrs Szekely had to pay $500.00 to have defects in water pipes, which Mr Mr Maciejak had agreed to repair, rectified and allowed that amount. 3. Box gutter: on the basis of a quotation from Manly Building Services, the Tribunal was satisfied that Mrs Szekely contracted with Mr Maciejak to repair her roof so as to stop future flooding and that the respondent failed to install overflow pipes from the box gutters, which was required as part of the scope of works Mr Maciejak had agreed to perform. The Tribunal allowed the amount of $1,875. 4. Bathroom renovation: the Tribunal allowed $3,600 in respect of cementing and $450 for re-sanding and repainting, a total of $4,050.00; 5. Stairs: The Tribunal was satisfied that the stairs Mr Maciejak built were defective and allowed the amount of $1,800.00 for rectification. 6. Roof leaking: the Tribunal allowed $6,865.00 for repair of roof leaks which the Tribunal found should have been repaired by Mr Maciejak as part of the works he had contracted to perform.
5. We now turn to the grounds of appeal.

The Tribunal erred in allowing $500 for garage roof pipe rectification works

1. Mr Maciejak submits that the Tribunal erred in that there was no evidence before the Tribunal about this matter. We have been provided with a little of the evidence that was before the Tribunal. We have not been provided with a transcript of the proceedings. Given the Senior Member's statement in par [3] that she had received and considered the materials provided to the Tribunal by both parties, we see no substance in this ground of appeal. To the extent it raises a question of law, the appeal is dismissed.

The Tribunal erred in finding that the damage to the tap was caused by Mr Maciejak.

1. This ground relates to the $385 that the Tribunal allowed for tap repairs referred to in [9] of the Decision. In essence, Mr Maciejak submits that the finding was against the weight of the evidence. In the absence of all of the evidence on this issue, including in particular the transcript of the hearing, we could not conclude that the finding was against the weight of evidence and would not grant leave in respect of this matter.

The Tribunal erred in allowing $800 in additional water rates

1. This issue was dealt with by the Tribunal at [9] in the following terms: The applicant alleges that while the respondent was enlarging the garage roof pipes from 70mm to 90mm and redirecting them into the courtyard, one of the respondent's workers accidentally broke a tap. The applicant states she told the respondent of the damage at the time the employee did it. The applicant claims that the water was left water running under her house for 6 months leaving her with a bills for an of $800 and an invoice of $385 to pay Chiddy Plumbing to fix the tap. The applicant has provided the invoice for the plumbing repair and photos of location of the tap. She has also provided details of Sydney Water bills throughout the period showing the increase. The Tribunal is satisfied that the respondent's employee damaged the water pipe and that as a result the applicant had to repair it and paid excess water charges and allows the total amount of $1,185.
2. The Tribunal's reasons are relatively brief on this issue, but we consider them adequate. Given the Tribunal's remarks at [7] about the evidence of both parties, which we have reproduced above, in the absence of all of the evidence which was before the Tribunal on this issue, including in particular the transcript of the hearing, we could not conclude that the finding was against the weight of evidence and would not grant leave in respect of this matter.

The Tribunal erred in concluding Mr Maciejak was liable for the invoice from Kris Kazmierczak Tiling and Waterproofing

1. This is a reference to the $3,600 awarded by the Tribunal in relation to the bathroom renovation. This issue was dealt with by the Tribunal at [12] in the following terms: The applicant claims that the respondent quoted the applicant $5,000 cash to renovate her shower and retile the bathroom. The applicant accepted the offer. She claims he did the work and that she paid him a total amount of $5,500 in November 2015 for those works. However, while doing the works the respondent's employees demolished the step in the shower which caused a crack in the wall and a mirror to break in the TV room underneath. They also failed to level the cement for the tiling and the respondent called a sub-contractor, Kris Kazmierczak to finish the job. The respondent then requested a further $3,600 to be paid to Mr Kazmierczak for the job. The applicant has provided the invoice for that amount. The Tribunal is satisfied that the $3,600 was only paid to Mr Kazmierczak because the respondents work on levelling the cement was defective and that he is liable for that amount. The Tribunal allows the $3,600 to the applicant.
2. Again, the Tribunal's reasons are relatively brief on this issue, but we consider them adequate. Given the Tribunal's remarks at [7] about the evidence of both parties, which we have reproduced above, in the absence of all of the evidence on this issue, including in particular the transcript of the hearing, we could not conclude that the finding was against the weight of evidence and would not grant leave in respect of this matter.

Roof repairs

1. Mr Maciejak submits that the Tribunal erred in finding that the works which Mrs Szekely alleged needed to be undertaken by Manly Building Services were a result or consequence of Mr Maciejak's work.
2. Essentially, Mr Maciejak submits that the findings of the Tribunal were against the weight of the evidence. We are not satisfied that any error has been identified by Mr Maciejak, and we would not grant leave in respect of this ground.

Replacement piping

1. Mr Maciejak submits that the Tribunal erred in concluding that the stairs were part of the replacement piping claim. Again, this is a submission that the Decision was against the weight of the evidence. We disagree with that submission. We would not grant leave in respect of this ground.

Conclusion

1. As the Appeal Panel noted in Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [18]: A court or tribunal is informed and persuaded only by the presentation of evidence. Evidence is material which tends to persuade the court or tribunal of the truth or probability of the facts being alleged. Evidence may be photograph[ic], documentary or testimonial. But it will only succeed in persuading the tribunal if it appears as being truthful, reliable and cogent. In civil cases the standard or proof depends on the balance (or preponderance) of probabilities. This simply means that a party must prove that their case is more likely than not to be true. If the scales tip in favour of the party, however slight, they have proved their case. But if the probabilities are equal, they have failed to prove their case. ...
2. We are satisfied that the Senior Member determined the application on the balance of probabilities on the basis of the evidence before her and applying the relevant law.
3. It is sufficient to conclude that we would not grant leave to appeal on any of the grounds raised by Mr Maciejak. We are not satisfied that any ground involves an issue of principle, a question of public importance, or an injustice which is reasonably clear, or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.

Costs

1. Both parties sought costs in relation to the appeal.
2. Section 60 of the NCAT Act relevantly provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant.
3. Mrs Szekely submits that there are special circumstances warranting an award of costs. She says the appeal was made in the absence of any valid grounds, and conducted in manner contrary to the guiding principle of the NCAT Act. She notes that, at a directions hearing, the Appeal Panel advised Mr Maciejak that an appeal did not constitute an opportunity to revisit the factual circumstances examined by the Tribunal. Mrs Szekely says that Mr Maciejak conducted the appeal in a way that unnecessarily disadvantaged her, including by the late filing of the notice of appeal and by obtaining an adjournment for the purposes of obtaining legal representation. Mr Maciejak also submits that the appeal had little or no prospects of success, and was frivolous or vexatious or lacking in substance.
4. We are not satisfied that any of these matters are established. In particular, while the grounds of appeal were not strong, we would not describe them as frivolous or vexatious or lacking in substance. Nor do we accept that the proceedings were conducted in a way which unnecessarily disadvantaged Mrs Szekely. We do not find that there are special circumstances warranting an award of costs.
5. Mr Maciejak sought the costs of his legal representation at the hearing on 22 October 2018, when the matter was adjourned due to Ms Szekely's ill-health. However, Mr Maciejak had the benefit of legal assistance in the preparation of his written submissions and he did not incur the cost of any legal representation at the adjourned hearing on 13 December. Mr Maciejak was unsuccessful in his appeal. We do not consider that Mr Maciejak has made out any justification for an award of costs in his favour.
6. We consider that, in the exercise of our discretion, the appropriate order is that there be no order as to costs.

Order

1. For the above reasons, we make the following orders: 1. leave to appeal on a ground other than a question of law is refused. 2. the appeal is dismissed. 3. The stay of order (1) in proceedings HB 17/48911 is revoked.

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: 19 December 2018