This is an internal appeal under s 80 of the Civil and Administrative Tribunal Act 2013 ('the NCAT Act') from a decision of a Senior Member of the Tribunal dated 27 November 2017.
The appellant appeared at the Appeal Panel hearing by telephone. There was no appearance by the respondent, who had also been granted leave to appear at the hearing by telephone. The Appeal Panel attempted to contact the representative of the respondent on the number provided on a number of occasions, but on each occasion the telephone went to message bank. The Appeal Panel was satisfied that the respondent had been notified of the hearing, and been given a reasonable opportunity to appear. The Appeal Panel determined that the hearing proceed ex parte.
The respondent subsequently sent correspondence to the Tribunal disputing that it had been contacted. However, it is unnecessary for us to consider the issues raised in that correspondence. Although the appeal identifies "Zoom Removals" as the respondent, the name of the respondent in the decision below was Zoom Relocations Group Pty Ltd and we are satisfied that the correct name of the respondent for the purpose of the appeal is Zoom Relocations Group Pty Ltd.
The dispute involves the provision of furniture removalist services. There is no dispute that there was an agreement between the parties that the respondent would transport the applicant's goods from Sydney to Melbourne in April 2017. An oral quotation was provided over the telephone in the sum of $1,280.
However, on the date of the move (25 April 2017) there was a signed written agreement between the parties. Relevantly, the document, which contained the signature of the applicant, stated that the applicant agreed that "coffee table wood is cracked. TV stand is chipped on corner" and "customer approved for 6 extra cubic metres" and extra bubble wrap. The appellant was charged an extra amount for the additional cubic meters and bubble wrap in the sum of $875.
The appellant commenced proceedings in the Tribunal in June 2017 seeking a full refund of the monies paid to the respondent in excess of the original quotation, and compensation for damage to the coffee table and TV stand. In essence, the appellant claimed that the respondent forced him to agree to a charge for a further 6 cubic metres of goods and a charge for bubble wrap under "duress"; and that the respondent had altered the agreement to include the words that the coffee table and TV stand was damaged before the move, but it was the respondent who had damaged the coffee table and TV stand during the move.
The total amount claimed by the appellant in the proceedings was less than $1,500.
The matter was listed for a special fixture hearing on 27 November 2017 before a Senior Member of the Tribunal. The applicant appeared by telephone and gave evidence. The respondent was represented by the person who attended the appellant's residence on 25 April 2017 (Mr Oudish).
Both the appellant and Mr Oudish gave evidence at the hearing regarding the events of 25 April 2017 and the circumstances in which the signed written agreement was created. The appellant disputed that Mr Oudish was present when the written agreement was signed.
The Senior Member dismissed the application, and provided written reasons.
Relevantly, the Senior Member:
Accepted the evidence of the respondent that the written agreement dated 25 April 2017 had been sent to the appellant (the appellant denying that he had received the document).
Accepted the evidence of Mr Oudish that the written agreement was signed by the appellant on 25 April 2017 and the document had not been altered subsequently to add a notation for damage to the coffee table and TV stand.
Accepted the evidence of Mr Oudish that the appellant had agreed to the extra charges regarding cubic metres and bubble wrap on 25 April 2017, prior to the goods being moved. The appellant had stated at the hearing that he had agreed to such charges because he needed to give vacant possession to his landlord by 28 April 2017, but stated he was "under duress" and should not have to pay for the extra charges because he had described all of the goods that needed to be moved over the telephone to the respondent when he obtained the quotation.
Was not satisfied the appellant had established any unfair or unconscionable conduct by the respondent, or that the respondent had charged for services that were not provided or agreed to under the contract.
Was not satisfied the appellant had proved on the balance of probabilities that the respondent had damaged the coffee table and TV stand during the move.
The appellant filed a Notice of Appeal on 5 January 2017, which appears to be outside the time limit to file appeals in the Tribunal contained in cl 25 of the Civil and Administrative Rules 2014. However, as we are satisfied the appeal should be dismissed on the merits, it is unnecessary to consider whether the time limit to file the appeal should be extended under s 41 of the NCAT Act.
The appellant stated that he relied upon his Notice of Appeal and written submissions, and had nothing orally to add to the written submissions that had been filed. The respondent had filed a Reply to Appeal, and written submissions.
The Notice of Appeal filed by the appellant does not identify any errors of law. Rather, it identifies grounds of appeal other than errors of law, for which leave to appeal is required under c 12 (1) of Sch 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 that 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).
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 Sch 4 of the NCAT Act may have been suffered where:
"... [T]here 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."
In respect of whether a decision is against the weight of evidence, the test to be applied is whether the evidence so strongly preponderates in favour of the appellant that it leads to the conclusion the Senior Member either wilfully disregarded the evidence or failed to appreciate and understand the evidence: Anderson v Armitage [2014] NSWCATAP 72 at [54]-58] and the principles discussed therein.
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:
1. issues of principle;
2. questions of public importance or matters of administration or policy which might have general application; or
3. 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;
4. a factual error that was unreasonably arrived at and clearly mistaken; or
5. 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.
The grounds of appeal relied upon by the appellant were that the decision was not fair and equitable, and against the weight of evidence because:
The respondent had never informed him prior to the move that any of his furniture was damaged or provided a copy of the written agreement he was alleged to have signed.
The appellant was "under duress" to agree to additional charges beyond what was quoted for in the telephone quotation.
The appellant had provided evidence of the damage to his goods, and the Tribunal should have accepted his evidence that the damage was caused by the respondent rather than being pre-existing damage.
Any written agreement identifying him as agreeing that the coffee table and TV stand were damaged had been altered without his consent.
In respect of fresh evidence, the appellant sought to rely upon a statutory declaration of him dated 30 December 2017 that set out the evidence he gave at the hearing regarding the issues in dispute.
The Appeal Panel is not satisfied that the appellant has established a substantial miscarriage of justice has occurred under cl 12(1) Sch 4 of the NCAT Act.
In respect of the signing of the written agreement, the appellant raises the same arguments that were put before the Senior Member in the hearing below. The Senior Member heard evidence from the appellant and Mr Oudish. The Senior Member gave written reasons that clearly explained why he made the relevant factual findings.
In essence, the Senior Member found that the appellant was bound by the document he had signed on 25 April 2017. The importance of a signed document in construing the terms of any agreement between the parties was discussed by the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at paras [43]-[45] (per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) as follows:
"Consistent with this objective approach to the determination of the rights and liabilities of contracting parties is the significance which the law attaches to the signature (or execution) of a contractual document. In Parker v South Eastern Railway Company[9], Mellish LJ drew a significant distinction as follows:
"In an ordinary case, where an action is brought on a written agreement which is signed by the defendant, the agreement is proved by proving his signature, and, in the absence of fraud, it is wholly immaterial that he has not read the agreement and does not know its contents. The parties may, however, reduce their agreement into writing, so that the writing constitutes the sole evidence of the agreement, without signing it; but in that case there must be evidence independently of the agreement itself to prove that the defendant has assented to it."
More recently, in words that are apposite to the present case, in Wilton v Farnworth[10] Latham CJ said:
"In the absence of fraud or some other of the special circumstances of the character mentioned, a man cannot escape the consequences of signing a document by saying, and proving, that he did not understand it. Unless he was prepared to take the chance of being bound by the terms of the document, whatever they might be, it was for him to protect himself by abstaining from signing the document until he understood it and was satisfied with it. Any weakening of these principles would make chaos of every-day business transactions."
In Oceanic Sun Line Special Shipping Company Inc v Fay[11], Brennan J said:
"If a passenger signs and thereby binds himself to the terms of a contract of carriage containing a clause exempting the carrier from liability for loss arising out of the carriage, it is immaterial that the passenger did not trouble to discover the contents of the contract."
It should not be overlooked that to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents, as Latham CJ put it, whatever they might be. That representation is even stronger where the signature appears below a perfectly legible written request to read the document before signing it.
The appellant may strongly disagree with the factual findings made by the Senior Member, but an appeal is not simply an opportunity for the losing party to run their case again (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]). It was open to the Senior Member to make the findings he made on the evidence before him at the hearing, and we are not satisfied that the appellant has established that a substantial miscarriage of justice has occurred.
In respect of fresh evidence, the appellant relies upon his own statutory declaration. However, the statutory declaration is not "fresh" or "new" evidence, as the appellant gave evidence at the hearing to the same effect as the evidence set out in his statutory declaration.
We are not satisfied that leave to appeal should be granted. The appeal is dismissed.
[2]
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
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Decision last updated: 13 April 2018