My Stone Tiles Pty Ltd v Ell; My Stone Tiles Pty Ltd v Allen - [2018] NSWCATAP 7 - NSWCATAP 2017 case summary — Zoe

NSWNSWCATAP

My Stone Tiles Pty Ltd v Ell; My Stone Tiles Pty Ltd v Allen

[2018] NSWCATAP 7

NCAT Appeal Panel|2017-03-22

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Source facts

Court

NCAT Appeal Panel

Decision date

2017-03-22

Source

Original judgment source is linked above.

Judgment (23 paragraphs)

[1]

Citation: Nil Date of Decision: 12 December 2016 Before: S Thode, Senior Member File Number(s): GEN 16/25016 (Ell) and GEN 16/25164 (Allen)

[2]

Background

This hearing involves two Notices of Appeal in identical terms in respect of their substantive parts. Each institutes an appeal and an application for leave to appeal from a decision of the Consumer and Commercial Division ("CCD") of this Tribunal, published on 12 December 2016, and made in respect of two applications which were heard together. The CCD applications each concerned alleged problems with tiles, supplied by the appellant, and installed in swimming pools owned respectively by the present respondents, Mr and Mrs Ell, and the present respondent, Mr Allen.
Essentially the issue before the Tribunal was whether the appellant was responsible for the consequences of grout spalling (or grout 'pop') in the tiling to swimming pools owned by the present respondents where the glass mosaic tiles used were supplied by the appellant.
Mr and Mrs Ell sought the cost of removal and replacement of the tiles in their pool. In their application to the Tribunal they specified the reasons for the orders sought, including references to the Australian Consumer Law ('ACL'). Included in those reasons were the statements: "We believe the tiles and the dot of adhesive backing should be durable for an extended period of time given their use as pool tiles and should be fit for the purpose of being a pool tile immersed in water." We refer to the Intertile Research Report 160526 which concludes in paragraph 184 with the statement 'I consider that the Ela glass mosaic tiles, which failed in the Alan and Ell residences, were not fit for purpose due to excessive edge joint material in the grout joint.'

[3]

Appeal

At the hearing of the appeal both parties were represented by Counsel. Counsel relied on written submissions and oral addresses. Counsel for the appellant had not appeared at the CCD hearing and had not prepared the appellant's written submissions.
Each Notice of Appeal specifies the following grounds of appeal: 1. The Tribunal erred in finding that the Respondent failed to comply with the statutory guarantee in ACL s.54. 2. The Tribunal erred in law in deciding that the Respondent was under an obligation to provide warnings and/or make recommendations in relation to the use of specific grout with the tiles which it supplied. 3. The Tribunal erred in law, including by failing to afford procedural fairness to the Respondent, in finding that the Respondent failed to comply with the statutory guarantee under ACL s.55, in circumstances in which: (a) the Applicants made no assertion to that effect; (b) no evidence was adduced by the Applicants as to the effect that they intended to use the tiles for a specific purpose; (c) no evidence was adduced by the Applicants as to any representation made by the Respondent in relation to any specific purpose for which the tiles were suitable; (d) no evidence was adduced by the Applicants as to having placed any reliance on any representation alleged to have been made by the Respondent; and (e) the Respondent was not invited or appraised of the need to adduce evidence or make submissions on the application of ACL s.55 or any of the issues referred to in sub-paragraphs (a)-(d) above. 4. The Tribunal erred in finding that the "Ella" Tiles supplied by the Respondent were not fit for the purpose of use in domestic swimming pools. 5. The Tribunal erred in finding that the Ella tiles supplied by the Respondent were not suitable for immersion in water. 6. The Tribunal erred in finding that there was no evidence before it that a specific grout, currently available in the market is capable of overcoming the specific problem and defects in the Ella dot adhesive system. 7. The Tribunal erred in law in holding that the Respondent bore the onus of establishing the cause of the grout popping in the Applicants' pool. 8. The Tribunal erred in law in holding that the Respondent bore the onus of establishing that the defective workmanship of the tiler was the cause of the grout popping in the Applicants' pool. 9. The Tribunal erred in finding that defective workmanship by the tiler did not cause "grout popping" to occur in the Applicants' pool.
Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (the 'Act') provides that an appeal lies as of right only in respect of a question of law. At the hearing Counsel for the appellant relied on grounds of appeal 1, 2, 3, 7 and 8 as involving questions of law; he maintained reliance on the other grounds of appeal for the application for leave to appeal.
Each Notice of Appeal claims that the decision was not fair and equitable and was against the weight of evidence and gives reasons why the Appeal Panel should grant leave to appeal against the CCD decision. Those matters are set out later in these Reasons for Decision in connection with the appellant's application for leave to appeal.

[4]

The CCD decision

At the hearing the applicants were self-represented and the respondent, the present appellant, was represented by counsel. The oral evidence before the Tribunal was principally given by the experts in joint session and the Tribunal Member took an active part in that process.
Relevant parts of the CCD decision include the following: 1. In the Background section of the decision at [1], it was noted that the applicants' case that mosaic pool tiles purchased from the appellant were not fit for their intended purpose and were supplied in breach of the consumer guarantees set out in 54 of the ACL . 2. The applicants' case was also described at [3] as being that 'the stones are not of acceptable quality, or in the alternative, are not durable within the meaning of s 54.' 3. At [5] the questions to be determined were specified as: * Are the tiles unfit for their intended purpose as pool tiles and have the respondents breached the consumer guarantee contained in cl 54 of the Australian Consumer Law? * Is the protrusion of the cohesive dot into the tile joint causative of the failure of the grout? * Has the respondent breached the consumer guarantees by failing to supply information or recommendations in relation to the appropriate grout to be used with the tiles? * Have the applicants failed to discharge their onus of proof because the respondent has established an equally plausible cause for the adhesive failure, being the defective workmanship of the tiler? * What is the appropriate remedy? 1. At [15] it was stated that the applicants' case was that the pool tiles were not of acceptable quality and supplied in breach of the guarantees in s 54 of the ACL. It was also stated: 'The tiles were described as unsuitable for their intended purpose as a pool tile because the adhesive dots at the back of the tiles, designed to fix whole sheets of tiles at a time, are said to have protruded too far into the tile joint, eventually dislodging the grout' 1. The applicants relied upon the expert report of Mr Bowman whose evidence was that grout spalling or popping would occur where too much of the mounting dots protrude into the tiling joints. He stated that the cause of grout popping was excessive 'edge mount' material in the grout joint such that the overlying grout fillet was too thin and lacking in the necessary strength to resist compression of the edge mount material. [16] and [17]; 2. The applicants also relied on an expert opinion from Mr Leoni who tested the makeup of the edge mounts and reported that they were inherently unsuitable for immersion in pools.[21]; 3. At [22] the Tribunal Member summarised the applicants' case as being that the glass mosaic pool tiles supplied by the appellant failed because they were not fit for their intended purpose, due primarily to faults in the edge mount; 4. The respondent relied upon an expert report of Mr Cass who stated that grout spalling was caused by allowing insufficient shrinking time for the concrete shell and the applicants' tilers used an inappropriate cement grout, not suitable for swimming pools. He also stated that the edge mount did not interfere with or protrude into the grout joint and that he disagreed with Mr Leoni's report and findings regarding the edge mounts [23] - [29]; 5. Mr Cass's conclusions were that the tiles were fit for their intended purpose and that grout pop was related to insufficient shrinking time for the concrete shell and deficient workmanship by the applicant' tilers [39]; 6. The Tribunal Member at [48] preferred the opinion of Mr Bowman for the applicants over the opinion of Mr Cass for the respondent; 7. The Tribunal Member found at [60] that the pool shells were cured appropriately and in accordance with the relevant Australian Standard; 8. At [61] and [62] the Tribunal Member found that the pool tiles were not fit for the purpose for which the respondent represented that they were reasonably fit, in breach of s 55 of the ACL and concluded that the tiles as supplied with the edge mount were not fit for their specified purpose as a swimming pool tile. The Tribunal Member found a breach of the warranties set out in ss 54 and 55 of the ACL to have been established. 9. At [63] the Tribunal Member rejected the proposition that the workmanship of the tilers engaged by the applicants was causative of their loss and damage and that there was no evidence that any grout would be guaranteed to prevent grout pop. The Tribunal Member also found that it was incumbent upon the manufacturer to put a description of a suitable grout on the pool tile product information or packaging and that a failure to do so was in breach of s 54(5) of the ACL.

[5]

The expert evidence

The proceedings at first instance turned on a difference of expert evidence tendered by the parties and ultimately, the preference of the Tribunal Member to accept the present respondents' expert evidence.
The expert evidence adduced by the present respondents at first instance consisted of 2 reports prepared by Mr Bowman and a report prepared by Mr Leoni. The appellant relied upon 2 reports prepared by Mr Cass and a technical report prepared by ExcelPlas.
The issues addressed by the experts related to complex issues such as differential movement occurring in swimming pools due to concrete shrinkage, the nature and behaviour of the edge mounts in grout joints, the cause of grout popping or spalling, whether the correct grout had been used in the tiling of the pools the subject of the proceedings, the quality of the workmanship during the grouting process and whether the edge mounts were suitable for immersion in water.
The Reasons of the Tribunal Member coupled with her active participation during the experts concurrent oral evidence indicate to us that there was appropriate consideration by her of all of the expert evidence in context of the legal issues that arose for consideration in the proceedings.
In it's written submissions the appellant refers to the fact that the Tribunal Member was critical of Mr Cass's evidence as indicated at paragraph [49] of the CCD decision.
The Tribunal Member's comments arose out of the fact that ARDEX a grout supplier as of 3 March 2016 stated that it no longer recommended the use of its adhesive or grout with the tiles the subject of these proceedings. Part of the Tribunal Member's criticisms were directed to the appellant for providing Mr Cass with an ARDEX test report which is referred to in his April 2016 report when ARDEX no longer recommended the use of its grout with the appellant's tiles.
The Tribunal Member also criticized the appellant for not giving Mr Cass Mr. Bowman's supplementary report in which he made comment on Mr Cass referring to the ARDEX test report when ARDEX no longer recommended the use of its grout with the appellant's tiles. At [52] of the CCD decision the Tribunal Member stated: 'It is sufficient for me to find that an expert with Mr Cass' experience ought to have been aware of the change in the product specifications/information. I am not certain that he has used his expertise as an independent expert when he included the ARDEX product information sheet provided to him by the respondent, without checking the veracity of the information provided to him. For this reason, among others that follow I shall afford lesser weight to the Cass opinion where Messrs Cass and Bowman differ.'
The appellant makes the point that Mr Cass did not rely upon the ARDEX product sheet in his April 2016 report to reach a conclusion that the tiles were fit for purpose. In that regard the appellant submits that the fact that Mr Cass referred to the ARDEX test report could not have 'significantly compromised' his April report as stated by the Tribunal Member at [49] of the CCD decision.
Insofar as the appellant's written submissions connect the Tribunal Member's criticisms of Mr Cass's reference to the ARDEX test report to the issue of whether there was grout suitable for use with the ELA tiles, we have addressed the grout issue under Ground 6, being a ground for leave to appeal on the basis that the appellant may have suffered a substantial miscarriage of justice because the CCD decision was against the weight of evidence.
It is convenient to address at this point criticism by the appellant of various aspects of the decision under appeal in the way it dealt with the expert evidence. First the appellant criticizes paragraphs [49] and [52] of the CCD decision as part of its case that the Tribunal Member should not have preferred the evidence of Mr Bowman over that of Mr Cass. We are of the view that the Tribunal Member may have been overstating the issue of Mr Cass's reference to the ARDEX test report when she stated at [49]: 'Mr Cass' first report (the April report) was significantly compromised when he was provided with an out-dated ARDEX product sheet at a time when ARDEX had already published its disclaimer on the internet, disassociating itself from the Ela mosaic tiles due to multiple pool failures.'
However it is our view that the statement quoted from paragraph [49] should be read in light of the more reasoned extract from paragraph [52] which finds that Mr Cass's use of the ARDEX test report without checking its veracity was a factor, among others which followed in the CCD decision, which contributed to her affording lesser weight to Mr Cass's opinion in circumstances where the expert's opinions differed.
We do not see that the Tribunal Member's reasoning was in error, or not available on the evidence, or not open to her. As she stated it was one of a number of factors which led her to prefer Mr Bowman's evidence.
Secondly, the appellant is also critical of the CCD decision because of the Tribunal Members comments at [53] which are of a generalized nature, but which state that Mr Cass's April report was prepared without him having attended at the pools the subject of these proceedings and without inspection of the pool shell, the grout or the tiles in situ. This led the Tribunal Member to find at [53] that: 'the methodology used to support his opinion does little to support the finding that "that the tiles are inherently fit for their intended purpose". Insofar the opinion of Mr Cass differs to that from Mr Bowman, I again prefer the opinion of Mr Bowman.'
The appellant's submissions are that the comments of the Tribunal Member were 'misconceived, unfair and unwarranted'.
Mr Cass's April report stated that it was prepared at the request of the appellant who had told him that there had been reports of minor grout loss in swimming pools where ELA tiles had been used. Later at [11] of his report Mr Cass stated that the appellant had told him that it had received complaints of small amounts of grout coming out of the tile joints in some swimming pools.
In considering this part of the appeal, it is necessary to have regard to the fact that that the appellant relied on Mr Cass's April 2016 report as the evidence upon which it relied to assert that the ELA tiles were of acceptable quality and fit for purpose. Mr Cass's November 2016 report was written after he had inspected the respondents' pools. It was in this report that that he raised matters upon which the appellant relied in order to assert that the grout pop in the pools was caused by matters unrelated to the quality of the tiles or the mounts which joined them together. In this context, we are unable to agree that the Tribunal Member's comments were 'misconceived, unfair and unwarranted' because Mr Cass had not at the time of the April report inspected the pools.
The critical issue is in our view that the appellant chose to tender this report, which was of a general nature in response to the complaints brought by the present respondents when Mr Cass had not (no doubt through no fault of his own, but as a result of the instructions he had received from the appellant itself) had sufficient regard to the grout popping in the respondent's respective swimming pools.
We do not regard the Tribunal Member's comments at [53] of the CCD decision to be a misconceived or unfair in the context of her consideration and assessment of the expert evidence in the proceedings which led her to prefer Mr Bowman's evidence. It follows that we do not consider this complaint to justify a finding that the the appellant may have suffered a substantial miscarriage of justice because Tribunal Member's findings were against the weight of evidence, or otherwise erroneous.

[6]

Question of law

We will deal now with grounds of appeal 1, 2, 3, 7 and 8. These are the grounds of appeal which at the appeal hearing were relied on as involving questions of law. We understand that the appellant relies on all grounds of appeal for the purposes of the application for leave to appeal.
Grounds 1 and 2 are said on behalf of the appellant to involve questions of law arising from the construction of s 54 of the ACL. That provision is as follows: 54 Guarantee as to acceptable quality (1) If: (a) a person supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are of acceptable quality. (2) Goods are of acceptable quality if they are as: (a) fit for all the purposes for which goods of that kind are commonly supplied; and (b) acceptable in appearance and finish; and (c) free from defects; and (d) safe; and (e) durable. as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3). (3) The matters for the purposes of subsection (2) are: (a) the nature of the goods; and (b) the price of the goods (if relevant); and (c) any statements made about the goods on any packaging or label on the goods; and (d) any representation made about the goods by the supplier or manufacturer of the goods; and (e) any other relevant circumstances relating to the supply of the goods. (4) If: (a) goods supplied to a consumer are not of acceptable quality; and (b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer's attention before the consumer agreed to the supply; the goods are taken to be of acceptable quality. (5) If: (a) goods are displayed for sale or hire; and (b) the goods would not be of acceptable quality if they were supplied to a consumer; the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer's attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent. (6) Goods do not fail to be of acceptable quality if: (a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and (b) they are damaged by abnormal use. (7) Goods do not fail to be of acceptable quality if: (a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and (b) the examination ought reasonably to have revealed that the goods were not of acceptable quality.

[7]

Ground 1

Grounds 1 is: 'The Tribunal erred in finding that the Respondent failed to comply with the statutory guarantee in ACL s.54.
Particularly as put on behalf of the appellant in oral address, it is said that the CCD decision failed to give adequate consideration to matters attendant on establishing a breach of s 54 and that the findings made which were "glaringly improbable" were not supported by evidence.
In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (23 October 2014) an Appeal Panel stated that a question of law would include: 'Whether there was no evidence to support a finding of fact: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-6; The Australian Gas Light Company v Valuer-General [1940] NSWStRp 9; (1940) 40 SR (NSW) 126 at 138.'
The CCD decision discloses that the Tribunal Member reached the conclusion that the pool tiles were not of acceptable quality because she: 1. preferred the opinion of Mr Bowman over the opinion of Mr Cass; 2. found that the pool shells were cured appropriately and in accordance with the relevant Australian Standard; 3. rejected the proposition that the workmanship of the tilers engaged by the respondents was causative of their loss and damage; and 4. found that there was no evidence that any grout would be guaranteed to prevent grout pop.
The appellant's submissions do not submit that there was no evidence upon which the Tribunal Member's decision could be based. Rather, the submissions attack the basis upon which the CCD decision was made on the evidence before the Tribunal.
The respondent's submissions seek to rebut the appellant's criticisms of the way in which the Tribunal Member considered the evidence and made the necessary findings to support her decision. They submit that Mr Bowman's evidence did establish on the balance of probabilities that the edge mounts were the cause of the problem leading to the grout popping.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 the High Court after stating that the question whether there is any evidence of a particular fact is a question of law, stated at [88] -[89]: 'But it is said that "(t)here is no error of law simply in making a wrong finding of fact": Waterford v. The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, per Brennan J. at p 77. Similarly, Menzies J. observed in Reg. v. The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644, at p 654: "Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law." 89. Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.'
In Bull v NSW Land and Housing Corporation [2016] NSWCATAP 266 the appellant alleged an error of law in the Tribunal Decision being appealed against. The respondent submitted that the decision appealed against was available on the evidence and reasonable. The Appeal Panel in those proceedings stated at [29]: 'In relation to whether or not the challenge in the present appeal raises a question of law, the respondent relies on the decision of the Court of Appeal of the Supreme Court of New South Wales in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, approved in subsequent cases including Qasim v Health Care Complaints Commission [2015] NSWCA 282 and Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321. The respondent says that even if there is a "determination of facts by a reasoning process marred though it be by a patent error, illogicality or perversity", such an error is not an error of law and cannot be appealed without leave. Therefore the present appeal can only be pursued if leave is granted.'
There is no dispute that the Tribunal had the jurisdiction to determine the respondents' applications. The CCD decision establishes in our view that the Tribunal Member considered all of the relevant evidence. The appellant's submissions go to the way in which the Tribunal Member treated the evidence in coming to the finding that she preferred Mr Bowman's evidence to that of Mr Cass.
In Bull v NSW Land and Housing Corporation the Appeal Panel disposed of the error of law based on no evidence ground of appeal as follows at [59]: 'In circumstances where the challenge is not one based on "no evidence" or miscarriage of discretion, but rather on whether or not the Tribunal was correct in evaluating the evidence and making necessary findings of fact, the position set out in Azzopardi as confirmed by Mason CJ in Bond applies to the present appeal. That is the error asserted, even if established, does not raise a question of law. Therefore leave to appeal is required.'
This ground of appeal does not raise a 'no evidence' point but an evaluation of evidence point. All the appellant's points about why Mr Cass's evidence was preferable were in our view, based on a consideration of the transcript and the CCD decision, appropriately considered and dealt with by the Tribunal Member.
The statement quoted from Bull v NSW Land and Housing Corporation at [27] is applicable to this ground of appeal. There was relevant evidence before the Tribunal Member which she evaluated before making findings, particularly at [62] of her decision.
We find that Ground 1 has not been established.

[9]

Ground 3

Ground 3 is that: 'The Tribunal erred in law, including by failing to afford procedural fairness to the Respondent, in finding that the Respondent failed to comply with the statutory guarantee under ACL s.55, in circumstances in which: (a) the Applicants made no assertion to that effect; (b) no evidence was adduced by the Applicants as to the effect that they intended to use the tiles for a specific purpose; (c) no evidence was adduced by the Applicants as to any representation made by the Respondent in relation to any specific purpose for which the tiles were suitable; (d) no evidence was adduced by the Applicants as to having placed any reliance on any representation alleged to have been made by the Respondent; and (e) the Respondent was not invited or appraised of the need to adduce evidence or make submissions on the application of ACL s.55 or any of the issues referred to in sub-paragraphs (a)-(d) above.'
Section 55 of the ACL states: '55 Guarantee as to fitness for any disclosed purpose etc. (1) If: (a) a person (the supplier) supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit. (2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that: (a) the consumer makes known, expressly or by implication, to: (i) the supplier; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or (b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii). (3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be'
The appellant submits that the Tribunal Member found for the respondents on a basis for which they did not contend. In addition it is submitted that there was no evidence adduced to the effect that any specific purpose was made known to the appellant.
The appellant submitted that in Stevanovski v CLK Plumbing Pty Ltd [2017] NSWCATAP 180 the Tribunal at first instance had made a determination based on the abandonment of the contract between the parties, when that issue had not been raised. The Appeal Panel in that case accepted the submission stating that in so doing the Tribunal had denied procedural fairness, which was an error of law.
Neither application filed in the Tribunal raised s 55 of the ACL in terms. Only s 54 was raised and that was done in the Ell application. The Allen application did not refer to the ACL, but stated that the tiles purchased from the appellant were 'not fit the purpose (sic) of installation in a domestic swimming pool due to excessive edge mount in the grout joints'. As stated at [3] and [4] of these Reasons for Decision, both applications contained the statement: "I consider the Ella glass mosaic tiles, which failed in the Allen and Ell residences, were not fit for purpose due to excessive edge joint material in the grout joint."
Both applications the subject of this appeal stated that the goods supplied were glass mosaic pool tiles. We think that it can be inferred from these statements in particular that from the outset it was plain to all involved that the tiles were supplied for the purpose of tiling the present respondents' respective swimming pools. There was no suggestion by the appellant in the proceedings at first instance that that the tiles were supplied for any purpose other than for tiling swimming pools.
The extracts from the respondents' applications set out above also indicate that from the outset the issue of fitness for purpose was raised in connection with both swimming pools, albeit that s 55 of the ACL was not cited. At the commencement of the hearing the appellant's counsel stated to the Tribunal Member that his client's defence was that the tiles the subject of this appeal 'were fit for purpose'.
There were no pleadings in these proceedings and in that regard the Allen Statement of Claim at tab 3 of the parties' Appeal Book bore no resemblance to the type of legal document which traditionally bears that title.
It seems from all of the documents that were relied upon by the parties that the proceedings were run on the basis of a generalised complaint that the tiles were not fit for purpose, although at some points in the course of the proceedings, the present respondents did refer specifically to section 54 of the ACL. We are of the view that given the generality of the present respondents' reliance on the tiles supplied being unfit for purpose coupled with their uncontested assertion that the tiles were supplied for the purpose of being used in swimming pools, the issue of fitness for purpose was generally in issue in the proceedings.
The respondents submit that there was no procedural unfairness because s55 of the ACL was raised in substance in the way the proceedings were run. After reading the transcript of the hearing, we have had regard in particular to the following passages which occurred in that part of the proceedings when the Tribunal Member was hearing submissions from the respondents.
For example at T108 (20 - 30) the Tribunal Member invited the respondents to make submissions. Thereafter the respondent Mr Ell stated: 'So in relation to the guarantee, it is goods under the separate [315:05], ie they are fit for purpose for which goods of that kind are commonly supplied, that is goods that are of that kind that are commonly supplied.'
At T110, Mr Ell stated: 'Secondly, Richard Bowman concludes that the tiles were not fit for purpose due to excessive (water sensitive) volumetrically unstable… Senior Member: Slow down. I'm writing all of this, do you realise? The tiles are not fit for purpose because of what? Mr Ell: Due to excessive (water sensitive) volumetrically unstable edge joint material in the grout joint'
At T111, MR Ell stated: 'There is a representation on the website to say that they are guaranteed, and that they are a pool tile. But even by admission, we as consumers were expecting the pool tiles to be fit for a purpose of a kind that is commonly supplied, which is the definition of acceptable quality in Section 54 Subsection 2.'
Having regard to the matters raised in the preceding paragraphs, we are not persuaded that the fitness for purpose issues as referred to in section 55 of the ACL were not agitated in the proceedings at first instance. As a result the allegation of a denial of procedural fairness has not been made out.
The respondents submit that even if there was a denial of procedural fairness, there has been no practical injustice as the ACL s 54 basis of liability, as found by the CCD decision is sound. CSR Limited V Eddy [2008] NSWCA 83 is relied upon. The decision makes it clear that in cases relating to procedural unfairness, practical injustice must be established.
That proposition is not in doubt. In Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Gleeson CJ stated at paragraph 37: 'Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.'
In Stead v State Government Insurance Commission (1986) 161 CLR 141 the plurality stated at paragraphs 9 ,10 and in the first sentence of 11: 'That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial. Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.
For the reasons stated, this ground of appeal has not been made out.

[10]

Ground 7

Ground 7 is: 'The Tribunal erred in law in holding that the Respondent bore the onus of establishing the cause of the grout popping in the Applicants' pool.'
We have not been referred to any part of the CCD decision where there was a holding or finding that the appellant bore the onus of proof to establish the cause of the grout popping in the respondents' pools.
The appellant's written submission was put a little differently to Ground 7, being that the CCD decision was wrong insofar as it dealt with causation stating that the respondents' expert's evidence did not satisfy the 'but for' test and that the Tribunal Member erred in rejecting its expert's evidence which was that grout popping as occurred was the result of poor workmanship by tilers.
The CCD decision dealt with the issue of causation at [56] and [63].
At [56] of the CCD decision the Tribunal member stated: 'As stated above I am not satisfied that the respondent has established that a failure by the tiler to use appropriate grout is the cause of the grout popping. It is more probably than not that the inherent defect in the uneven application of the dot adhesive, its protrusion into the tiling joint, and the inherent unsuitability of the polymer adhesive for use in a pool are the cause of the grout popping (see conclusion of Mr Bowman at page 69 of 83 in the supplementary report).'
At [63] the Tribunal member rejected the suggestion that defective workmanship of tilers was causative of the respondents' loss and damage.
We are not persuaded by this ground of appeal. First, for the reason that the ground of appeal as extracted above has not been made out. The CCD decision did not hold that the appellant bore the onus of proof to establish the cause of the grout popping in the respondents' pools. Secondly, the appellant's complaint that the Tribunal Member erred in rejecting its expert's evidence that grout popping as occurred was the result of poor workmanship by tilers does not amount to an error of law for the reasons expressed in connection with ground of appeal 1.
The Tribunal Member's Reasons for Decision indicate to us that her findings in relation to the cause of grout popping was not made on an 'onus' basis, but after a consideration and evaluation of all the evidence which led to her finding at [56]: 'It is more probably (sic) than not that the inherent defect in the uneven application of the dot adhesive, its protrusion into the tiling joint, and the inherent unsuitability of the polymer adhesive for use in a pool are the cause of the grout popping (see conclusion of Mr. Bowman at page 69 of 83 in the supplementary report).'

[12]

Leave to Appeal

In its Notice of Appeal the following issues were stated be the basis upon which leave to appeal was sought: 1. The Tribunal's finding that the 'Ella' tiles supplied by the Respondent were not fit for the purpose of use in domestic swimming pools was arrived at unreasonably and was clearly mistaken. 2. The Tribunal's finding that the Ella tiles supplied by the Respondent were not suitable for immersion in water was arrived at unreasonably and was clearly mistaken. 3. The issues of whether the Ella tiles supplied by the respondent were fit for the purpose of use in domestic swimming pools and/or whether those tiles were suitable for immersion in water are ones of principle and/or general importance and may have general application in light of numerous other claims pending before the Tribunal involving the Ella tiles. 4. The Tribunal's finding that the defective workmanship by the tiler did not cause 'grout popping' to occur in the Applicants pool was arrived at unreasonably and was clearly mistaken. 5. The Tribunal's finding that the Respondent failed to comply with the statutory guarantee under section 55 of the ACL was arrived in circumstances that involved a denial of procedural fairness to the respondent, was arrived at unreasonably and was clearly mistaken. 6. The circumstances referred to above involved a substantial injustice to the Respondent.
The appellant says that the Appeal Panel should be satisfied that the appellant may have suffered a substantial miscarriage of justice because the CCD decision was not fair and equitable and against the weight of evidence.
Subsection 80(2)(b) of the Act provides that an appeal on any ground other than a question of law shall be by leave. Clause 12(1) of Schedule 4 of the Act is headed 'Limitations on internal appeals against Division decisions'. The clause provides as follows: '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).'
The statutory regime referred to above has been considered and explained by an Appeal Panel in Collins v Urban [2014] NSWCATAP 17. The statutory regime involves a two stage process. First, has the appellant satisfied the Appeal Panel that it may have suffered a substantial miscarriage of justice because the decision at first instance was not fair and equitable, or against the weight of evidence, or because new evidence has arisen which was not reasonably available at the hearing? Only if so satisfied, the Appeal Panel may proceed to the second stage to determine whether it should exercise its discretion to grant leave and that discretion should be exercised in accordance with well established principle.
The relevant passages in Collins v Urban as regards the first stage are at [76] - [79] (we omit references made to authorities): '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" … (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 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 …
As regards the second stage, 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.

[13]

Not fair and equitable

In its Notice of Appeal in support of the contention that the decision was not fair and equitable, the appellant relies on the following grounds: 1. The Tribunal found the Respondent liable (amongst other things) on grounds not contended for by the Applicants, including for a failure to comply with the statutory guarantee under ACL s. 55; and 2. The Tribunal denied procedural fairness to the Respondent: by holding the Respondent liable on grounds not contended for by the Applicants, the Tribunal denied the Respondent the opportunity to adduce evidence and make submissions in relation to those grounds.
The matters referred to above have been considered under Ground of Appeal 3 upon which the appellant has been unsuccessful in connection with a ground of appeal based on an alleged error of law.
Under clause 12(1) of Schedule 4 of the Act the appellant must establish that it may have suffered a substantial injustice because the decision was not fair and equitable.
We have found at [64] that the proceedings were run on the basis of a generalised complaint that the tiles were not fit for purpose, although at some points in the proceedings, there was reference specifically to section 54 of the ACL. We stated that we are of the view that given the generality of the respondents' reliance on the tiles supplied being unfit for purpose coupled with their uncontested assertion that the tiles were supplied for the purpose of being used in swimming pools, the issue of fitness for purpose was generally in issue in the proceedings. In these circumstances we are of the view that the appellant's contention that the decision of the Tribunal was not fair and equitable should not be accepted.
In addition if contrary to our finding a breach of section 55 of the ACL was not raised by the respondents, we find that there was no 'significant possibility' or a 'chance which was fairly open' that a different or more favourable result would have been achieved, since it was accepted by all parties that the tiles were sold for the purpose of being used in swimming pools and at the hearing the tiles fitness for purpose for use in domestic swimming pools was always in issue.
The appellant has failed to make a case for leave to appeal based on the ground that it may have suffered a substantial injustice because the decision was not fair and equitable.

[14]

Against the weight of evidence

In support of the contention that the decision was against the weight of evidence the appellant in its Notice of Appeal relies on the following matters as being the evidence that the Tribunal should have given more weight to: 1. The Tribunal ought to have given more weight to Mr Cass's evidence to the effect that the cause of "grout popping" was the defective workmanship of the tiler, because: 1. Mr Bowman was not qualified to give evidence in relation to issues relating to the workmanship of the tiler; and 2. Mr Cass's evidence in relation to defective workmanship by the tiler was otherwise un-contradicted; 1. The Tribunal gave excessive weight to the withdrawal by "Ardex" a supplier of grout used in domestic swimming pools, of a certificate relating to the use of its products with Ella tiles supplied by the Respondent in the circumstances referred to in paragraph 3 below; 2. The Tribunal failed to consider evidence in the nature of certificates and reports from other suppliers of grout used in domestic swimming pools, including Laticrete and Mapai, concerning the use of their products with Ella tiles supplied by the Respondent; 3. The Tribunal failed to consider the evidence of Mr Cass to the effect that an "epoxy" grout would have been suitable to use with the Ella tiles; 4. The Tribunal gave excessive weight to the evidence of both Mr Cass and Mr Bowman to the effect that it was for the Respondent to make recommendations as to the use of specific grout with its products in circumstances in which neither witness was qualified to give evidence on that issue and/or the opinion of each witness was irrelevant to that issue; and 5. The Tribunal gave excessive weight to the report of Thomas Leoni, annexed to Mr Bowman's 18 September 2016 report, in circumstances in which Mr Bowman's own evidence was to the effect that Mr Leoni's report was inconclusive.
As stated by its counsel at the hearing, the appellant seeks leave to appeal in relation to grounds of appeal 4, 5, 6 and 9 on the basis that it may have suffered a substantial injustice because the decision was against the weight of evidence.
The ambit of the matters relied upon in the Notice of Appeal as set out in [102] above and in those grounds of appeal involved a coverage of the whole of the expert evidence. We have canvassed this above particularly at [16] - [33]. We feel that it will be sufficient to cover this area for the purposes of the application for leave to appeal by examining grounds of appeal 4, 5, 6 and 9. Generally, and as canvassed at [16] - [33] above, we are of the view that the CCD decision showed considerable attention to the expert evidence given at the hearing. In our view the Tribunal's Reasons for Decision discloses no error or shortcoming in the consideration of the expert evidence. We have stated that the fact finding by the Tribunal Member including her findings on the technical causes responsible for the 'grout spalling' or 'grout pop' with consequential findings on liability under the ACL would not amount to an error of law. For the appellant to obtain leave to appeal against the CCD decision on the ground of 'against the weight of evidence', the appellant must as stated in Collins v Urban, establish that 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'. Nevertheless, and at the risk of repetition, we will explain our views on grounds of appeal 4, 5, 6 and 9 individually.

[16]

Ground 5

Ground 5 states: 'The Tribunal erred in finding that the Ella tiles supplied by the Respondent were not suitable for immersion in water.'
The appellant's written submissions state that; 'Mr Bowman himself accepted that all relevant testing relating to water absorption and adsorption was inconclusive. For that reason alone the Tribunal or to have found that the Ells and Allen had failed to discharge the onus that fell upon them in relation to that issue.'
Paragraph [22] of the decision states: 'The applicants have also obtained expert opinion testing the makeup of the Polymer mounting dots (the Leoni report). The test results confirm that the polymer dot mount, joining the small individual glass mosaic tiles together in sheets, is inherently unsuitable for immersion in pools. I have had regard to the report of Thomas Leoni of the "MARK WAINRIGHT ANALYTICAL CENTRE' ". The expert concludes that "water content in the ELA Glass unlaid sample was higher at 0.53% compared with other ELA glass unlaid dot mount polymer sample. The exposed ELA dot mount polymer contained 1.17% water (a 2.2 fold increase compared with the ELA Glass Unlaid dot mount polymer. The measured difference in water uptake by the ELA Glass dot mount polymer between the unlaid versus the exposed samples is significant and is indicative of a polymer not suitable for immersion in water or aqueous solutions (emphasis added)."'
At [58] of the CCD decision the Tribunal member stated that she was satisfied that the 'adhesive dot material itself is not suitable for use in swimming pools'. At [59] of the decision the Tribunal Member accepted Mr Leoni's opinion that that the dot mount polymers were not suitable for immersion. At [70] in context of a consideration of loss and damage, the Tribunal Member stated that: 'As the product is inherently unfit for immersion in water'
The Tribunal expressly accepted the evidence of Mr Leoni that the dot mount polymers were not suitable for immersion based on his report of 11 July 2016.
The appellant's written submissions deal with this issue at paragraph 35. In his supplementary report dated 18 September 2016 Mr Bowman considered, among other things, Mr Leoni's report of 11 July 2016 in paragraphs 173 -187. The appellant asserts that in paragraph 187 of his 18 September 2016 report Mr Bowman concludes that the tests undertaken, including those conducted by Mr Leoni were inconclusive:
Paragraph 187 states: 'While the pool owners have failed to commission tests that would incontrovertibly demonstrate that an expansive reaction has occurred, the Exleplas length change test results were so inconsistent as to be totally unreliable. There are thus no reliable test result results with respect to water induced length change. However, the slow progressive growth of the dots (due to water adsorption) would be consistent with the thermogravimetric testing and the progressive nature of the failures.'
In our view paragraph 187 should not be considered in isolation. We have had regard to Mr Bowman's Concluded Opinions section of his report at [208] - 210] where he states: 'Although the UNSW report does not exhaustively detail the procedures used, the results indicate variable moisture content in the dot mound material between the unused tiles, where this would be consistent with adsorption of water vapour, with samples having been exposed to differing climatic environments over different time periods. The UNSW results for the immersed polymer dot material indicate higher combined water, where this would be consistent with a greater rate of reaction after the mosaic bedding became saturated once the pool was filled. The UNSW thermogravimetric results for the polymer dot material, viewed in conjunction with the grout spalling that has occurred in retiled pools where there would be negligible concrete drying shrinkage after the swimming pools are filled, lead me to conclude that the adsorption of water by the polymer dot material is causing a significant volumetric expansion.'
At paragraph 214 of his Concluded Opinions Mr Bowman states: I consider that the Ela glass mosaic tiles, which failed in the pools at the Allen and Ell residences, were not fit for purpose due to excessive (water sensitive) volumetrically unstable edge joint material in the grout joint.'
The reference to the UNSW report and results are references to Mr Leoni's report.
The appellant also refers to the evidence of Mr Bowman when he was giving concurrent evidence in the Tribunal. At that stage of the concurrent evidence the Leoni report was being considered, T33(17). At T37(15) Mr Bowman states in connection with previous discussions regarding the water absorption qualities of the dot mount, that the Leoni test results indicate adsorption rather than absorption. Mr Bowman then explains what adsorption is. At T38(19-30) Mr Bowman stated in answer to a question from the Tribunal Member that the Leoni test established that water could be absorbed by the dot mounts while they were already mounted in situ and water absorbed by the dot mount in situ exerted pressure on the grout.
The evidence that we have referred to above indicates that paragraph 187 of Mr Bowman's report must be viewed in context. His conclusions, particularly those at paragraph 214, do not doubt that the dot mount polymers were not suitable for immersion in water.
Having regard to this material we are not satisfied that the evidence before the Tribunal in its totality preponderated so strongly against the conclusion by the Tribunal at first instance that the adhesive dot mount material is not suitable for use in swimming pools.

[17]

Ground 6

Ground 6 states: 'The Tribunal erred in finding that there was no evidence before it that a specific grout, currently available in the market is capable of overcoming the specific problem and defects in the Ella dot adhesive system.'
The appellant's submissions in relation to this ground of appeal address the issue of causation stating that the respondents failed to exclude other possible causes of damage and thereby failed to establish that the appellant caused the loss the subject of the proceedings.
The Tribunal Member stated at [54]: 'I am further satisfied that there is no evidence before the Tribunal that a specific grout, currently available on the market is capable of overcoming the extrinsic (sic) problem and defects in the ELA dot adhesive system'
This finding is repeated at [63] where the Tribunal Member states: 'There is simply no evidence before the Tribunal that any grout would be guaranteed to prevent grout pop.'
At [63] and [64] the Tribunal Member considered the issue of causation, rejecting the suggestion that defective workmanship of the tiler caused the respondents loss and damage. She stated, as quoted, that there was no evidence that any grout would be guaranteed to prevent grout pop. Specifically, the Tribunal Member rejected the appellant's expert's evidence that grout CG2 should have been used. The Tribunal Member preferred the present respondents' expert's evidence that there was no guarantee, and that it was unlikely, that CG2 grout would prevent grout 'pop'. At [65] she stated that she was satisfied that the grout pop was not caused by unsuitable grout used by the builder.
We have been referred to the Appeal Book which was tendered at the hearing, where at pages 358 and 388 the appellant's expert Mr Cass states that he wouldn't use Mapei or Laticrete grout for the ELA mosaic tiles. At page 423 of the Appeal book the respondents' expert Mr Bowman when asked whether ELA mosaic tiles would be fit for purpose if used with the correct grout, answered no in connection with terms of the recommendations of 3 leading adhesive and grout manufacturers in Australia, Mapei, Laticrete and Ardex. The evidence also establishes that as of 3 March 2016 Ardex, a grout supplier, no longer recommended the use of any of its adhesive or grout products with the blue Ella Glass Mosaic tile. Refer pages 151 - 155 of the Appeal Book.
Mr Cass at paragraph 40 of his 22 November 2016 report states that; 'Had a CG2 grout, been used, it is unlikely that the grout popping seen in this pool would have occurred.'
Mr Bowman's evidence at paragraph 200 of his 18 September 2016 report contradicts this evidence as referred to by the Tribunal Member at [54] of the CCD decision.
The evidence in the proceedings established that the appellant's own expert gave evidence that he wouldn't use Mapei or Laticrete grout, the respondent's expert gave evidence that ELA mosaic tiles would not be fit for purpose if used in connection with terms of the recommendations of 3 leading adhesive and grout manufacturers in Australia, Mapei, Laticrete and Ardex. There was also evidence that Ardex no longer recommended the use of any of its adhesive or grout products with the blue Ella Glass Mosaic tile.
In connection with Mr Cass's opinion that had a CG2 grout been used there would have been no grout popping, The Tribunal member accepted Mr Bowman's opinion that a selection of a CG2WA grout might have delayed, but would not have prevented the grout pop/spalling.
As stated above, to obtain leave to appeal in connection with this ground of appeal, it is necessary for the appellant to establish that 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.
In our view the Tribunal Member considered the relevant evidence, which included the evidence that we have referred to above, including the concessions made by the appellant's expert and reached a conclusion that that the use of a CG2 grout would not have prevented grot pop. We cannot see that there is any basis for finding that the evidence in its totality preponderated so strongly against the conclusions found by the Tribunal Member (as stated above) that no reasonable member would have reached such a conclusion. In fact the evidence substantially supported such a finding.
The appellant's submissions move from the actual wording of Ground 6 to raising a challenge to the Tribunal finding on the basis of causation. In that regard it relies on Barrak Corporation Pty Ltd v The Kara Group of Companies Pty Ltd [2014] NSWCA 395 in support of this ground of appeal at [28] and [29]
In Barrak Corporation Pty Ltd v The Kara Group of Companies the appellant sued the respondent in connection with faulty laminated panels that were manufactured by the respondent. The respondent adduced evidence that there were possible cause for the faulty panels that did not involve negligence on its part.
The Court of Appeal held at [29] that the appellant bore the onus of excluding the other possible causes that could not be attributed to any negligence on the part of the respondent.
The Tribunal Member dealt with and disposed of the possibility that the loss and damage the respondents complained of was caused by the failure of the tilers engaged by the respondents to use the CG2 grout. As we have stated the evidence in its totality as regards this issue falls far short of preponderating so strongly against the conclusions found by the Tribunal Member.

[18]

Ground 9

Ground 9 is: 'The Tribunal erred in finding that defective workmanship by the tiler did not cause "grout popping" to occur in the Applicants' pool.'
The Notice of Appeal states at 6A in connection with this ground that; 'The Tribunal's finding that the defective workmanship by the tiler did not cause 'grout popping' to occur in the Applicants pool was arrived at unreasonably and was clearly mistaken'
The appellant's submissions in connection with Ground 9 are put under the heading of causation which is said to encompass Grounds 6 to 9.
The Tribunal Member referred to Mr Cass's evidence as regards workmanship at [37] of her decision when she stated: 'Mr Cass concluded that the causes of the grout failure in the Ell pool was due to the use of an inappropriately weak grout mix and failure to leave a sufficient grout in the tile joints caused by poor workmanship of the tiler.'
She also referred to Mr Bowman's evidence in relation to this issue at [47] as follows: 'Finally Mr Bowman dismisses Mr Cass' opinion that the tiler's defective workmanship or choice of unsuitable grout as the cause of grout popping. Given that the only evidence of any grout failure at the Allen and Ell swimming pools was directly above the edge mount dots and my understanding that this is the situation in the case of Mr Vozzo's pool…… I discount grout choice , grout application workmanship, pool water chemistry, and pool maintenance as significant factors in my consideration as to why the dots cause the grout popping. The selection of CG2WA grout might have delayed the spalling but would not have prevented it as has been shown by failures where such grout has been used.'
At [63] of the CCD decision the Tribunal Member stated: 'I reject that the defective workmanship of the tiler is causative of the applicants' losses and damages. There is simply no evidence before the Tribunal that any grout would be guaranteed to prevent grout pop.'
Further, at [64] of the CCD decision the Tribunal Member stated: 'I am satisfied that the grout pop was not caused, as alleged by Mr Cass, by insufficient grouting techniques or unsuitable grout used by the tiler. For these reasons I reject the submission by the respondent that two equally plausible case theories have been proffered. I find that one opinion is preferable over the other and that the applicants have discharged their onus of proof.'
In our view the Tribunal Member was entitled to accept the evidence of Mr Bowman as referred to at [47] of the CCD decision. Moreover the appellant did not in its written submissions or in addressing us at the hearing support the assertion made in its Notice of Appeal that the Tribunal ought to have given more weight to Mr Cass's evidence to the effect that the cause of grout popping was the defective workmanship of the tiler because Mr Bowman was not qualified to give evidence in relation to issues relating to the workmanship of the tiler.
We are not satisfied that the appellant may have suffered a substantial miscarriage of justice because the evidence in its totality preponderated so strongly against the conclusion of the Tribunal that the grout pop was not caused by 'insufficient grouting techniques'.

[19]

Grounds 1, 2, 3, 7 & 8 in support of an application for leave to appeal

We understand counsel for the appellant to rely also on Grounds of Appeal 1, 2, 3, 7 and 8 as a basis for leave to appeal. He has not stated whether these grounds support an application for leave on the basis that the CCD decision was not fair and equitable or that the decision was against the weight of evidence. No separate submission was developed on behalf of the appellant concerning that reliance. Nevertheless we will address some remarks to this aspect of the appeal.
We are of the opinion that Grounds of Appeal 2, 7 and 8 raise issues that can only be regarded as questions of law. Ground 2 relates to whether the appellant was under an obligation to provide warnings and/or make recommendations in relation to the use of grout. In it submissions the appellant states that the evidence of the experts was irrelevant to the question of whether the appellant was responsible for making a recommendation of a suitable grout on the pool tile product information or packaging. Grounds of Appeal 7 and 8 state that the Tribunal erred in law in relation to onus issues.
Since Grounds of Appeal 2, 7 and 8 raise questions of law that do not relate to the way in which the hearing was conducted or raise evidentiary issues, we find that they do not constitute appropriate grounds for seeking leave to appeal on the basis that the appellant may have suffered a substantial miscarriage of justice because the CCD decision was not fair and equitable or was against the weight of evidence.
The substance of what is raised in Ground of Appeal 3 has been raised as a basis for leave to appeal on the ground that the matters complained of establish that there was a substantial miscarriage of justice because the CCD decision was not fair and equitable. At [91] to [96] of these reasons we dealt with that application for leave concluding that the appellant had not been successful in establishing in obtaining leave to appeal on that ground. That leaves open the question of whether the matters raised in Ground of Appeal 3 are capable of supporting an application for leave on the, against the weight of evidence ground. Even if Ground of Appeal 3 is advanced on this basis, it is significant that it was common ground before the Tribunal that the tiles supplied by the appellant were supplied for use in domestic swimming pools.
Insofar as the appellant relies on Ground 1 to support an application for leave to appeal, we note that Ground 1 is in similar terms to Ground 4 which was made on the basis that the appellant may have suffered a substantial miscarriage of justice because the CCD decision was against the weight of evidence. We have refused leave to appeal for ground 4.
We repeat that there was ample expert evidence before the Tribunal in the form of the reports from Mr Bowman and Mr Leoni to form a basis for the Tribunal Member to make the finding that the 'Ella' tiles were not fit for purpose for use in a domestic swimming pool. As stated at [16] - [18] the decision at first instance turned on the expert evidence and ultimately the acceptance by the Tribunal Member of the evidence adduced by the present respondents. In our view it cannot be said that the expert evidence in its totality preponderated so strongly against the CCD decision that the conclusion was not one that a reasonable Tribunal member could reach. We would also add that in considering whether the appellant may have suffered a substantial miscarriage of justice because the CCD decision was against the weight of evidence, it is not necessary for us to, in effect, reconsider all of the expert evidence in the proceedings as the appellant's submissions tend to suggest.
For the reasons provided above, we can see no case for grant of leave to appeal based on the ground that the appellant may have suffered a substantial miscarriage of justice because the CCD decision was against the weight of evidence.

[21]

Costs

The respondents seek to be heard on the question of costs, both at first instance and in relation to the Appeal,
In LMA Contractors Limited v Changizi [2017] NSWCATAP 145, an Appeal Panel held at [17 ] - [18] that it did not possess the necessary jurisdiction to determine the costs of the Tribunal proceedings at first instance and that it was necessary to refer the question of costs in the first instance proceedings to the Tribunal Member who heard the case. The Appeal Panel stated: 'We are of the view that section 81 of the Act does not allow us to make a costs determination in relation to the proceedings before the Tribunal Member at first instance, in circumstances where there was no application for an order for the costs of those proceedings. The Tribunal at first instance was not able to consider the question of costs if there was no application and therefore we as the Appeal Panel are not able to do so either. However, the respondents may apply for an order for the costs of the proceedings at first instance. In that regard orders 2 and 3 of the orders made by the Tribunal Member on 8 December 2016 gave leave to the parties to make submissions on the question of costs.'
We agree with that statement. Any application for the costs of the first instance proceedings should be made to the Tribunal Member in accordance with orders 3, 4 and 5 of the Tribunal Orders dated 12 December 2016; an application for an extension of time will be necessary.
So far as the costs of the appeal are concerned, any costs application must be lodged in the Appeal Division of the Tribunal and served on the costs respondent within 21 days of the date of these orders either attaching or referring to any documents relied upon in support of the application.
The costs respondent will have 21 days after the date it receives the application referred to in the preceding paragraph to lodge in the Appeal Division of the Tribunal and serve on the costs applicant its submissions in response to the cost applicant's costs application, such submissions either attaching or referring to any documents relied upon.
The cost applicant will have 14 days after the date it receives the cost respondent's submissions to lodge in the Appeal Division of the Tribunal and serve on the costs respondent its submissions, if any, in reply, such submissions either attaching or referring to any documents relied upon.
Subject to the right of the parties to make submissions under section 50(3) of the Civil and Administrative Tribunal Act (which should be made in conjunction with the submissions referred to above), the Appeal Panel will determine any costs application on the basis of the papers lodged in the Appeal Division of the Tribunal.