O'Riordan v Brown

NCAT Appeal Panel|2023-10-09

Introduction

The parties entered a contract on 13 October 2022 for the respondents to sell the appellant's home in the Blue Mountains. The respondents marketed the property and held an online auction on 24 November 2022 which did not achieve a sale. During the sales campaign the parties had communication difficulties and expressed discontent with each other. On 13 January 2023 the contract was terminated in accordance with the terms of the contract.
Another agent subsequently sold the property for the appellant.
On 20 February 2023 the appellant lodged a consumer claim against the two respondents seeking an order that the respondents pay him $15,569 in compensation and an order that he be relieved from paying the respondents $24,200 commission. Later he amended his claim to include another order that he be relieved from paying the respondents $3,281 for disbursements.
The hearing took place on 16 June 2023. The orders and written decision were issued on 11 July 2023 (Decision). At the hearing the respondents confirmed they were not claiming commission from the applicant. They did however press for their disbursements to be reimbursed in accordance with the contract in the amount of $3,281.00.
The Tribunal Member's reasons for decision describe in a detailed manner the relevant facts and the events that occurred including the parties' communications regarding the sale of the appellant's property.
The Tribunal Member found that the respondents were entitled to recover the disbursements or outgoings that they had incurred in the attempted sale of the appellant's property. An order was made in their favour for $3,281.00.

Notice of Appeal and hearing of the appeal

The orders that the appellant challenged in his appeal are stated at 5A of the Notice of Appeal. Rather than challenging the order actually made, the appellant referred to certain paragraphs in the Tribunal decision, namely: 1. Paragraphs 35, 36, 38 and 45 all of which related to the respondents' claim for disbursements; and 2. Paragraphs 39 and 41 which related to his claim that the respondents failed to render services with due care and skill.
The grounds of appeal referred to in section 5B of the Notice of Appeal were annexed to the Notice and contained a list of what the appellant alleged were factual errors in the Decision. The two page document comprises comments about certain paragraphs in the Decision. These comments do not constitute proper or orthodox grounds of appeal.
In Part 6 of the Notice of Appeal the appellant ticked that he was both seeking leave, and not seeking leave to appeal the Decision. It is clear from the sections of Part 6 that the appellant filled out that he does seek leave to appeal on the bases: 1. The Decision was not fair and equitable; and 2. The Decision was against the weight of evidence.
In Part 6 whilst describing why he should be granted leave to appeal, the appellant stated that he had limited time to present his case and he was restricted from presenting his case sufficiently because of time constraints.
The respondents each filed a Reply to Appeal. In short, the respondents challenged all the contentions of the appellant and supported the Decision, asking that the appeal be dismissed.

Appeal documents

The appellant attached the list of the evidence he had filed before the Tribunal to his Notice of Appeal. The contents page for his original documents is attached to the Notice of Appeal. Also attached to the Notice of Appeal is a "Without Prejudice" offer of compromise which was, quite properly, not before the Tribunal and ought not have been filed in these proceedings. That letter was not taken into account by the Appeal Panel as it was dated 14 June 2023 and therefore was reasonably available at the date of the hearing. If it was relevant it should have been tendered before the Tribunal. Given it was a "Without Prejudice" offer it probably would not have been accepted into evidence had the appellant attempted to tender it, which he did not.
On 7 September 2023 the appellant filed a black folder containing 182 pages of documents and submissions plus two usb sticks; one containing the sound recording of the Tribunal hearing and one containing videos the appellant wished to play for the Tribunal during the Tribunal hearing. The black folder is a mixture of submissions that were made below, submissions on the appeal, documents potentially tendered below and commentary on the sound recording of the hearing. Pages 45 to 57 are described in the appellant's contents page as "Appeal evidence (inc sound transcript p56-57)". There is not a transcript of the sound recording of the hearing on 16 June 2023 in the appellant's folder. There is commentary about what took place during the hearing including some time stamps and short descriptions of what took place during the hearing which was 1 hour and 46 minutes in length.
The appellant's folder did not properly set out which documents were before the Tribunal and which were filed for the first time on the appeal. That was clarified at the appeal hearing.
The respondents filed the documents they wished to rely upon in the appeal on 20 September 2023. It very clearly set out their submissions on the appeal and the evidence they each tendered to the Tribunal.
At the appeal hearing the parties made oral submissions concerning their respective positions. As necessary we will refer to their submissions below.

Self-represented parties

In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ('Prendergast') at [12] an Appeal panel 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.'
Such an approach was confirmed in Cominos v Di Rico [2016] NSWCATAP 5 where an Appeal Panel stated at [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. However, this must be balanced against the obligation to act fairly and impartially'
It will be necessary for us to approach the appellant's Notice of Appeal and grounds of appeal in the way described above.

Nature and scope of an appeal

The decision of the Tribunal at first instance is an internally appealable decision and an appeal can be made from that decision as of right upon a question of law, and otherwise with leave of the Appeal Panel: see, s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 ('NCAT Act').

Questions of law

The following questions of law were identified in Prendergast at [13] citations and quotes omitted: 'Whether there has been a failure to provide proper reasons; Whether the Tribunal identified the wrong issue or asked the wrong question; Whether a wrong principle of law had been applied; Whether there was a failure to afford procedural fairness; Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; Whether the Tribunal took into account an irrelevant consideration; Whether there was no evidence to support a finding of fact; Whether the decision is so unreasonable that no reasonable decision-maker would make it.'
We have considered the appellant's grounds of appeal which, as we have referred to at [11] above, are a commentary on or a response to various paragraphs of the Tribunal Member's decision. We have also considered the appellant's Notice of Appeal and grounds of appeal generally to determine whether a question of law has in fact been raised. Save for two issues, we are of the view that the appellant's grounds of appeal do not raise questions of law.
The two issues which in our view do raise questions of law are, first that the appellant states that he was given insufficient time to read his evidence. He states: 'Findings that were incorrect as a result of me only being given 30mins to read out over 200 pages of evidence'
In the section of the Notice of Appeal relating to Leave to Appeal under the heading 'Decision not fair and equitable' and in the attached document of the same title, the appellant raised a number of issues, the tenor of which is that is that there was not enough time for him to present his evidence and that the hearing had to be cut short.
These complaints suggest that the appellant may have been denied procedural fairness. We have decided to treat all of the appellant's complaints that he did not have enough time to present his evidence and to make submissions as an appeal as of right on a question of law, namely a failure to afford procedural fairness.
Secondly, although the appellant does not specifically address the question in his grounds of appeal, his Notice of Appeal challenges the Tribunal findings that the respondents were entitled to an order in their favour for their disbursements pursuant to section 55A of the Property and Stock Agents Act 2002 (NSW) ('PSA Act'). This suggests that the appellant raises a question of law in the way that the PSA Act was either interpreted or applied to the facts.

Procedural fairness

As stated above in Prendergast, a question of law will arise if there has been a failure to afford procedural fairness.
Section 38(5)(c) of the NCAT Act embodies aspects of procedural fairness in that it provides that the Tribunal must 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'.
In National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311-312; [1984] HCA 29 (News Corporation) Gibbs CJ (Brennan J at 326 agreeing) made the following observations about the requirements of natural justice: 'In Russell v Duke of Norfolk, Tucker LJ said: 'The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.' The passage has frequently been approved - for example, by this Court in Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group. The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. Moreover, as Stephen J. said in Salemi v MacKellar [No.2], the rules of natural justice 'may also vary from case to case although each be conducted before one and the same tribunal or person'.' (citations omitted)
Procedural fairness is not abstract. As Gleeson C.J. in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 said at [37] in respect of procedural fairness: '...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.'
Justice Basten addressed the same issue in Italiano v Carbone & Ors [2005] NSWCA 177 at [88]: 'An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment," as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]: "A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations." at [37].
The first issue of this nature raised by the appellant was: 'Findings that were incorrect as a result of me only being given 30mins to read out over 200 pages of evidence'
The appellant filed a sound recording of the hearing which indicates that the hearing was 1 hour and 46 minutes in length. Despite the length of the hearing, the appellant was not, in our opinion, entitled to read 200 pages of evidence to the Tribunal. We reject this Ground of Appeal. Nonetheless, the appellant was entitled to refer the Tribunal to the relevant sections or pages of his evidence. We accept that in accordance with the above authorities, if the appellant can demonstrate that he was deprived of the opportunity to refer the Tribunal Member to the relevant sections of his evidence, or to make submissions, he will be in a position to submit that there has been an error of law based on a failure to provide procedural fairness.
The appellant asserts that the hearing had to be cut short because the morning's hearing ran overtime.
The appellant refers to the time allowed for him to address the Tribunal in the hearing at first instance. He states that he was stopped from speaking after 40 minutes, and in reply his time to speak was cut short to 1 minute.
The issue in the present case was that the hearing had been allocated three hours for final hearing yet there was restriction in the time the parties could present their cases so that the hearing could be concluded in approximately half the allocated hearing time. Given we accept the appellant may have lost an opportunity to draw the Tribunal's attention to meaningful evidence to support his case, we find in this case the restriction on the appellant's time caused the Tribunal to fall into error.
The appellant also referred us to the evidence he submitted on a USB stick which he stated contained two videos of the respondents online marketing. It is stated that the Tribunal Member only watched 90 seconds of the shorter video in the hearing.
The appellant submits that he was denied the opportunity to present the full weight of his evidence and was limited to one minute in reply. At page 57 of his submissions filed in the Appeal, the appellant stated that he was limited to 11 minutes to address the Tribunal on three documents that he had filed in the first instance proceedings, namely, 'Misrepresentation', 'Not fit for purpose' and 'Cost to vendor'. This led the appellant to submit that (errors as in the original): 'Those 3 documents were centre piece of my case had to leave out 75% of them this leaves member to conclude at item 39 " nothing in the evidence " and also conclude at item 41 "there is no satisfactory evidence that I experienced any financial losses" as a result of Phil and Gary actions. The omitted 75% had plenty of evidence.'
The respondents deny that the appellant has suffered a substantial miscarriage of justice. In their submissions they state that the Tribunal Member had access to the appellant's evidence from 10 April 2023 and would have considered the evidence of all parties before finalising the Decision. While the appellant may have filed his evidence in the Tribunal on 10 April 2023, there is no reason to assume that the Tribunal Member had access to that material from that date.
We have come to the conclusion that due to the hearing being only 1 hour 46 minutes in length, the appellant was deprived of a full opportunity to make submissions and refer to evidence in support of his case. As stated in Italiano v Carbone & Ors, we find that because of being limited by time constraints, the appellant lost an opportunity to put information or arguments to the Tribunal Member. It is on this basis that the appeal is allowed in connection with the appellant's claim for an order that the respondents pay him $15,569.00.

Order for disbursements

We have also referred to the fact that the appellant's Notice of Appeal challenged the Tribunal findings that the respondents were entitled to an order in their favour for disbursements. The Tribunal considered the respondents disbursement claim under ss55 and 55A of the PSA Act. The interpretation of a statute or contract is directed to the ascertainment of the document's actual and true meaning. When the document is properly construed, there is only one correct meaning. It is for this reason that the proper construction of a statute is a question of law: Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50(Bianco Walling) at [66] (Flick, White and Perry JJ). In our view an error in the consideration and application of legislation will also be an error of law.
The Tribunal Member considered s55 of the PSA Act which states that the respondents were not entitled to commission or expenses without an agency agreement which was served within 48 hours after it was signed by the appellant. At [14] and [15] of the Decision the Tribunal Member found that although the parties signed an Exclusive Selling Agency Agreement which was dated 13 October 2023, it was not sent to the appellant until 24 October 2023. The Decision at [15] allows us to infer that the Tribunal Member found that the respondents were not entitled to the expenses that they were claiming because of non-compliance with s55(1)(c) of the PSA Act, the effect of which was that a copy of the agency agreement must have been served by them on the appellant within 48 hours after the agreement was signed by or on behalf of the appellant.
This finding led the Tribunal Member to state at [15] of the Decision: 'Section 55A does allow for the Tribunal to order payment if the failure was caused by inadvertence or other causes beyond the control of the licensee and to not allow for expenses would be unjust or not fair and reasonable. The Tribunal must however be satisfied that the failure is minor and no loss has been suffered by the person on whose behalf the services were performed.'
The material findings of the Tribunal Member regarding the respondents' claim were at [37] and [38] of the Decision as follows: 'I find the costs were clearly incurred and paid by the respondents. The delay in providing a copy of the contract did not result in any issue at the time and seems to be some inadvertence by the agent, or alternatively arising from them not being clear on the disbursement costs. Regardless, the disbursement costs were not changed. It would appear to me to be unjust to say because the property did not sell that the agent then have to wear the disbursements due to the delay in providing a copy of the contract. There does not seem to have been any dispute about the disbursements and it actually worked to benefit the applicant, as he was never charged the full cost of the disbursements as reflected in the invoices provided by the respondents. At the time the respondents said the delay was due to their clarifying the disbursements, however ultimately it did not result in any change to the cost of the disbursements on the contract. The only aspect of the disbursements that would seem to be more contentious is the on-line auction, however given the findings that the delay in providing the contract was due to either inadvertence or delays due to the applicant's desire to use different contractors for the services it would seem unjust to differentiate the auction costs. These costs were agreed, and although it is not apparent why the auction was not withdrawn in advance, it appeared it did go ahead and the respondents incurred the cost. They are therefore entitled to reimbursement.'
In his grounds of appeal the appellant referred to [36] of the Decision stating 'section 55 did prejudice me because they retained all of the marketing material forcing me to buy new marketing material and new Ad platforms'.
At [36] of the decision the Tribunal Member stated that s55A of the PSA Act provided an exception to the rule in s55 'if it would be unjust to do so or there was no prejudice to the applicant.'
We find that the Tribunal Member was in error when she stated that s55A of the PSA Act provided an exception to the bar on the recovery of expenses under s55 if 'there was no prejudice to the applicant'. The reason for this finding is that s55A of the PSA Act contains no reference to a licensee who is unable to recover under s55 having that right under s55A 'if there was no prejudice to the applicant'.
Section 55A of the PSA Act states, so far as is relevant, where the respondents did not serve a copy of the agency agreement to the appellant within 48 hours of signature: 'A court or tribunal before which relevant proceedings are taken may order that commission or expenses are wholly or partly recoverable by a licensee who would otherwise not be entitled to the commission or expenses (under section 55) because of - (a) a failure by the licensee to serve a copy of the relevant agency agreement on the person within 48 hours after it was signed by or on behalf of the person, or (b) (2) A court or tribunal is not to make such an order in circumstances of a failure to serve a copy of the agency agreement within the required time unless satisfied that - (a) the failure was occasioned by inadvertence or other cause beyond the control of the licensee, and (b) the commission or expenses that will be recoverable if the order is made are in all the circumstances fair and reasonable, and (c) failure to make the order would be unjust.'
We appreciate that the appellant's Ground of Appeal as referred to at [47] above was prompted by the Tribunal Member's incorrect reference to 'no prejudice to the applicant'. Other than referring to the prejudice he sustained, the appellant makes no challenge to the basis upon which the Tribunal Member found that he was liable to the respondents in the sum of $3,281.00 for disbursements. On this basis , we reject the appellant's Ground of Appeal that there was an error on a question of law concerning the Tribunal's order relating to the payment of disbursements.

Leave to appeal

As the decision the subject of the appeal is a decision of the Tribunal in the Consumer and Commercial Division, the Appeal Panel may only grant leave to appeal where it 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).' (see NCAT Act, Sch 4, cl 12)
Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of cl 12(1) of Sch. 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [31].
In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel considered among other things, an application for leave to appeal under clause 12(a) of Schedule 4 of the NCAT Act. In connection with the requirement that the appellant may have suffered a 'substantial miscarriage of justice' the Appeal Panel stated at [71]: 'From this passage, it can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred.'
At [76] the Appeal Panel stated: '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.'
In the context of the appellant's application for leave, it is important to note that an appeal to the Appeal Panel does not simply provide a losing party in the Tribunal at first instance with the opportunity to run their case again or have a "second chance". Ryan v BKB Motor Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
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.

Not fair and equitable

The tenor of the appellant's submissions is that there was not enough time for him to present his evidence. He asserts that the hearing had to be cut short because the morning's hearing ran overtime.
As stated above we have dealt with the issues raised by the appellant under this heading as an appeal on a question of law.

Against the weight of evidence

The Notice of Appeal at 6Biii indicates that the appellant seeks leave to appeal because the decision of the Tribunal Member was against the weight of evidence.
The Appeal Panel in Collins v Urban at [77(2)] explained this ground for leave to appeal in the following way: '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'
In his Notice of Appeal under the Heading 'What evidence should the Tribunal have given more weight to? Why?' the appellant referred to a document attached to his Notice of Appeal which referred to: 1. The video that he provided at first instance, a copy of which was filed in the appeal in electronic form; 2. 75% of the evidence he filed in the proceedings below which he state that he was precluded from referring to; 3. pages 42, 47, 49, 57, 65, 117, 118, 120, 122, 124, 134, 137, of the respondents' evidence at first instance;
Given that the appellant has been successful on his appeal relating to his claim for $15,569.00 and that claim has been remitted to the Consumer and Commercial Division of the Tribunal, it is our view that it is not necessary for us to address his application for leave to appeal on the basis that the Decision was against the weight of the evidence referred to above. In addition, we are of the view that it would be undesirable for us to do so as the tribunal member on the remittal should be in a position to give such weight to the evidence that the appellant has referred to as she or he sees fit and to make the appropriate findings. Having considered the evidence referred to above that the appellant has identified, we observe that some of the evidence would not be relevant to his claim for $15,569.00, as it relates to the respondent's disbursement claim. Other items of the evidence may be relevant to the $15,569.00 claim and therefore should be considered on the remittal as the member considers appropriate.

Orders

The Appeal Panel makes the following orders: 1. By consent, the name of the second respondent is amended to Letoli4 Prestige Pty Ltd; 2. The appellant's appeal against the decision of the Tribunal that he pay the respondents $3,281.00 is dismissed; 3. Leave to appeal is granted in connection with the Tribunal's decision dismissing the appellant's claim for $15,569.00; 4. The appeal is allowed in connection with the Tribunal's decision dismissing the appellant's claim for $15,569.00; 5. The proceedings are remitted to the Tribunal differently constituted on the same evidence as was filed in the proceedings at first instance; and 6. The stay order made in favour of the appellant on 16 August 2023 is discharged.
If any party wishes to make a cost application pursuant to s.60 of the NCAT Act, they must do so in writing within 21 days of the date of this order. Otherwise there will be no order as to costs.

Further conduct of the proceedings

In considering the parties' positions the Appeal Panel has had regard to the substantial volume of documents that were filed in the proceedings at first instance and come to a preliminary view that not all documents filed were necessarily of relevance. We also have come to the view that in order to implement the guiding principle of the Tribunal which is found in s36(1) of the NCAT Act, namely: 'to facilitate the just, quick and cheap resolution of the real issues in the proceedings' it would no doubt assist the Tribunal Member to whom the proceedings have been remitted if the parties were to prepare and file short written submissions in which they succinctly identified the essential elements of their claim and defence respectively, with references to the page numbers of the documents on which they rely as evidence to support their respective positions.

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: 08 January 2024

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (12)