Moore v Gallaria Pty Ltd

Internal appeals

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which internal appeals from decisions of the Tribunal may be brought.
2. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: NCAT Act, s 80(2).
3. 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 satisfied that the appellant may have suffered a substantial miscarriage of justice because:

• the decision of the Tribunal under appeal was not fair and equitable; or
• the decision of the Tribunal under appeal was against the weight of evidence; or
• significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel gave guidance as to when a decision may not be fair and equitable or against the weight of evidence. At [77] - [79] the Appeal Panel stated: 'As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 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]. 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) 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].'
2. When applying for leave to appeal on the basis that significant new evidence was now available that was not reasonably available at the time of the hearing, an Appeal Panel in Owen v Kim [2017] NSWCATAP 26 referred to the applicable authorities stating at [40] that in order to obtain leave to appeal because the appellant may have suffered a substantial miscarriage of justice because significant new evidence was now available that was not reasonably available at the time of the hearing, the test is whether the material the appellant now seeks to rely upon was unavailable because "no person could have reasonably obtained the evidence", not because the appellant was unaware of the need to do so.
3. 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 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded 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.
4. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
5. It is also important to state that an appeal is not an opportunity for an appellant to run his or her case again or have a "second chance". (Ryan v BKB Motor Vehicle Repairs Pty Limited [2017] NSWCATAP 39). Likewise, the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states: "an appeal is not an opportunity to have a second go at a hearing". Further, it is not sufficient for the appellant to disagree with the outcome and to contend that there should have been a different outcome: the appellant must demonstrate either that an error was made on a question of law or that there is a basis upon which leave to appeal should be granted.
6. Where a party to an appeal is not legally represented an Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ('Prendergast') at [12] stated: '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. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.'
7. This approach was expanded upon in Cominos v Di Rico [2016] NSWCATAP 5, ('Cominos') where an 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."

Error of law

1. We have had regard to the appellants' grounds of appeal which have been stated at [4] above in the manner referred to in Prendergast and in Cominos. We find that the appellants have not identified an error of law. The matters raised by the appellants at 5B of their Notice of Appeal in our view indicate a desire on their part to run their case again, an impermissible course unless an error of law is identified, or leave to appeal has been granted.

Decision not fair and equitable

1. The appellants have raised a number of matters which they say established that the decision was not fair and equitable. The first matter raised by the appellants was stated to be: 'The respondents supporting documents were only presented on the day of hearing, not the required 14 days prior, in a single copy without indexing or numbering therefore we were not given the opportunity to review prior to hearing nor able to follow documents during the hearing. This meant we were disadvantaged going into the hearing as we were unable to analyse nor fully prepare prior, nor did we have anything to follow when read by the tribunal member therefore not allowing us the opportunity to sufficiently raise points during the hearing. After reading the evidence provided by respondent on the day and noticing a statement from their expert which stated the job could have been done correctly and trusting this would have been taken into consideration I then agreed to proceed with the hearing, in order to save time and expense for the tribunal as this had been mentioned by the tribunal member.'
2. In Italiano v Carbone Ors [2005] NSWCA 177 Basten JA at [105] referred to a situation where it should be apparent to a court or a Tribunal that in order to give a party a reasonable opportunity to present its case, a requirement arises to offer an adjournment even if one was not sought. There is no doubt that in an appropriate case a Tribunal Member is required to offer a party to proceedings an adjournment if that is required to avoid procedural unfairness. In Brown v A Hambridge & G Riog Pty Ltd [2022] NSWCATAP 134 an Appeal Panel considered the position when an appellant stated that he had been denied procedural fairness because he only received the material on which the respondent relied on the morning of the hearing when Tribunal orders required such material to be served some weeks before. In that circumstance the Appeal Panel stated at [29] and [30]: 'The issue of when a Tribunal Member should offer a party an adjournment has been considered by Appeal Panels in Roach v Swain [2021] NSWCATAP 258 and in Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73. These decisions refer to the judgement of Basten JA in Italiano v Carbone & Ors [2005] NSWCA 177 particularly at [105] where his honour stated: '105 The remaining question is thus whether, on the evidence, the Tribunal was under an independent obligation to take particular steps which it did not do. If so, the consequent question is whether its failure invalidated the resulting orders. There is statutory support in the CTTT Act for such obligations. Thus, s.35 (set out at [69] above) provides that the Tribunal "must ensure" that each party is given "a reasonable opportunity" to present its case. Where necessary this will entail offering an appropriate adjournment, whether sought or not. In addition, s.28(4) (see [68] above) requires the Tribunal to "take such measures as are reasonably practicable" to ensure that the parties understand not only the nature of the assertions made in the proceedings, but also "the legal implications of those assertions".' (Emphasis added') In the NCAT Act the content of the obligation upon the Tribunal to afford a party an opportunity to be heard is in terms that the Tribunal "is to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings ": s 38 (5) (c).'
3. The extract from the appellants' Notice of Appeal above at [17] indicates that the basis for an adjournment was available to the appellants because of the respondent's late service of documents. However the extract also indicates that the appellants chose to proceed with the hearing in order to save time and expense for the Tribunal, as this had been mentioned by the Tribunal Member.
4. On 9 November 2022 directions were given in the Appeal Panel for the preparation of the hearing of this appeal. Order 3(d) required the appellants to lodge with the Appeal Registry and give to the Respondent: 'If oral reasons were given and or what happened at the hearing at first instance is being relied upon by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing.'
5. An identical direction was made in relation to the respondent. Neither the appellants nor the respondent provided a typed transcript of what was said in connection with the respondent's late service of documents. As a result, there is no evidence of what was actually said by the appellants or the Tribunal Member in connection with this matter.
6. In its Reply to Appeal the respondent addresses this issue. It stated: 'In response to the appellant's complaints regarding the supporting documents, the respondent would like to reinforce the fact that Ms. Zammit (the tribunal member) has clearly outlined the situation and gave the appellants the freedom to discontinue the hearing if they felt disadvantaged. However, the appellants refused to reschedule and expressed their consent for the hearing to proceed. Thus, the appellants were not disadvantaged during the hearing as it was their own choice to continue the hearing, rendering the tribunal's decision to be fair and equitable.'
7. Based on the material that we have referred to above, we find that there is no basis for the appellants being granted leave to appeal because the respondent's material was served late and an adjournment should have been offered. The material before us suggests that the appellants chose to proceed with the hearing despite the late service of the respondent's documents and despite being offered an adjournment. The appellants have been provided an opportunity to file a typed transcript to establish a different position, however they have not done so.
8. There are a number of other matters that the appellants have raised which they say established that the decision was not fair and equitable. Those matters range from the complaint that the Tribunal Member was not well versed in the fabrication assembly and installation of stone benchtops to a discussion of the evidence in the proceedings. There was also reference to interchanges between the appellants and the Tribunal Member in considering the evidence We find that these matters referred to by the appellants do not establish that they were denied procedural fairness or that the decision was not fair and equitable.
9. We refuse leave to appeal on the basis that the decision was not fair and equitable.

Against the weight of the evidence

1. As stated above at [9] in order to establish that the Tribunal decision was against the weight of evidence the appellants must persuade us that the evidence in its totality preponderated so strongly against the conclusion found by the Tribunal Member at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach. In that regard the Tribunal Member's decision was to order the respondent to undertake three items of remedial work, and to dismiss the balance of the appellants' claim. The work that the respondent was ordered to carry out was: 'Re-polish the edging on the stone benchtop Polish scratches out of the stone benchtop Re-fill and polish the gaps in the stone benchtop.'
2. We have had considered the documents filed by the appellants in the appeal that were those lodged with The Tribunal at first instance. Many of the documents in evidence related to the above matters. We have not considered the documents filed in the appeal by the appellants which were not before the Tribunal Member. The reasons for that are set out below.
3. The main controversy between the parties at first instance was the appellants' contention that the respondent's work was unacceptable because it had mismatched the veins in the separate pieces of stone that made up the 'U' shaped kitchen benchtop supplied and installed by the respondent.
4. A number of photographs were relied upon by the appellants as well as letters from: 1. an organisation called 'Artistic Décor'; and 2. a licensed real estate agent.
5. The letter from Artistic Décor stated among other things: Our clients benchtop has been placed together in an oddly manner with a Patterns (sic) of its own that do not seem to match. I cannot comment on the installers reason for this. When looking at this from a distance it does seem to have a non e flow pattern (sic) that's abruptly joined together as if it were a puzzle pieced together incorrectly in order to achieve the end picture. All surfaces have discrepancies especially natural ones or anything man made. However this looks very inconspicuous for a finished product.'
6. The letter from the licensed real estate agent stated among other things: 'the finished product of your kitchen bench and the way the veins of the marble look has been completed is not to a standard that you would expect to find in an upmarket Property like yours. I have seen many homes over the 8 plus years I have been working in Real Estate and have not seen a finished product that looks like yours where the adjoining pieces don't look as though they are blending correctly. Though I am not a stonemason or expert in kitchen installation, I would personally expect for my own home a better completed job'
7. The respondent also tendered evidence regarding matching the veins in the stone used in the production of the benchtop in the form of a report from Milestone ACT. The author of the letter stated among other things: I have been a stonemason for 7 years. During this period I have installed many natural stone benchtops and feature walls with various veining patterns in both domestic and commercial environments. 'Based on the images provided to me for review; my professional opinion is that the stone benchtop has been installed within acceptable tolerance of vein matching. I can say with certainty that it is impossible to get a 100% vein match when installing separate pieces of stone together unless extra material is allowed for. There are many factors that need to be considered when installing natural stone with complex veining patterns. Hence the reason why perfect veining match is not possible.'
8. There was competing evidence from what appears to be an interior designer and a real estate agent for the appellants and a stone mason for the respondent. Given that the appellants' claim failed except for the repair orders that were made, it appears to be the case that the Tribunal Member preferred the evidence of the respondent's witness, the author of the Milestone ACT letter. As neither party produced a transcript of the Member's oral reasons for decision, this conclusion is inescapable. In our view the Member was entitled to prefer the evidence of a stonemason with 7 years' experience to the appellants' witnesses, neither of whom was an experienced stone mason.
9. For these reasons we find that the appellants have failed to establish that their witnesses' evidence on the matching of the veins in the stone preponderated so strongly against the conclusion found by the Tribunal Member at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach.
10. The appellants have also referred to an issue that they raised at the hearing that the benchtop was assembled using 4 pieces of stone rather than 3. They say that this resulted in a joint having failed which they seek to establish by new evidence. We find that contrary to the appellants' submission at 6.B.iii of their Notice of Appeal the Tribunal Member was under no obligation to give this submission a higher degree of weight as it clearly involved a subject which called for technical expertise, which the appellants did not possess.
11. For the reasons provided we refuse leave to appeal on this ground.

Significant new evidence is now available that was not reasonably available at the time the proceedings under appeal were being dealt with

1. The appellants identify the following documents which they submit come within this category: 1. Colour photographs of black and white photographs that were filed in the first instance proceedings; 2. Photographs of a narrow joint at the sink which has allegedly moved; 3. a sketch explaining the method of benchtop assembly; 4. photographs produced by the respondent which they have highlighted in certain areas; and 5. a quotation from 'Made in Stone' for replacement of benchtop including book matching.
2. As stated at [10] the test is whether the above material was unavailable at the hearing because "no person could have reasonably obtained the evidence", not because the appellant was unaware of the need to do so. This ground for leave to appeal, does not allow the introduction of new evidence, the desirability of which becomes apparent after the first instance proceedings are concluded and the Tribunal decision handed down.
3. The appellants' address the critical issue of whether they could not have reasonably obtained the evidence referred to at [36] at 6B iv.in their Notice of Appeal. They stated that they provided colour photographs [36(a)] because their black and white photographs were given little weight by the Member at the hearing. The new photographs referred to in [36(b)] identified as being at pages 28 and 29 and 6 and 7 of their appeal documents are explained as being in support of an oral submission they made at the hearing. The document referred to at [36(c)] is explained as a sketch explaining the method of benchtop assembly because of comments made by the Member at the hearing.
4. We find that it is reasonably apparent from the description of the documents in the preceding paragraph that they were all available at the time of the hearing had the appellants been aware that they would have assisted in the presentation of their case. We also find that these documents that the appellants now refer to as a basis for leave to appeal, come within the category of evidence, the desirability of which becomes apparent after the first instance proceedings are concluded and the Tribunal decision handed down.
5. The appellants also refer to photographs that they have highlighted which they say were not reasonably available at the time of the hearing because they were provided to them late, [36(d)]. We reject this submission. The documents were available at the time of the hearing and available for highlighting had the appellants chosen to do so, albeit that they were provided late. The appellants elected to proceed with the hearing despite the late receipt of the photographs. Had the appellants chosen to do so they could have pressed for an adjournment or accepted the one which we have been informed they were offered. We reject the submission that these marked up photographs are significant evidence that was not reasonably available at the time of the hearing.
6. The appellants have also provided a quote from 'Made in Stone' [36(e)] dated 27 September 2022, the day on which the decision at first instance was made. There is no explanation why this quote was not produced at the hearing. The most obvious reason appears to be that it provides a cost of fabricating a new kitchen benchtop, a remedy that the appellants were not seeking at the time, their application being for a full refund or a total replacement of the benchtop and a refit, as referred to at 5C. of their Notice of Appeal.
7. The appellants have referred to hearsay evidence from the respondent's stonemason who allegedly stated that a joint at the sink had separated and required reinforcement. They assert that this establishes the sink in the stone benchtop has become structurally unsound. The appellants have not produced a witness statement to substantiate the evidence. The respondent has produced a letter from the relevant stonemason which states that certain repairs could be made to the gap between the sink and the benchtop but denies that the benchtop is structurally unsound or that he told the appellants that it was.
8. We find that the matters raised by the appellants in connection with the benchtop being structurally unsound to be no more than a hearsay assertion. We find that the appellants have not established that 'Significant new evidence is now available' in connection with this issue.
9. Leave to appeal based on clause 12(1)(c) of Sch 4 of the NCAT Act is refused.

Disposition of Appeal

1. We have found that the appellants have not identified an error of law. We have also refused leave to appeal under clauses 12(1)(a), (b) and (c) of Sch 4 of the NCAT Act.

Orders 1. Leave to appeal is refused. 2. Appeal 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: 30 May 2023