Paulmir Unit Trust & Spiteri Family Trust trading as Hi Tech Marine NSW v Akbari

NCAT Appeal Panel|2022-08-22

REASONS FOR DECISION

By Notice of Appeal filed on 28 June 2022 Paulmir Unit Trust and Spiteri Family Trust trading as Hi Tech Marine NSW (Appellants) appealed against orders made by the Tribunal on 18 May 2022 in proceedings brought against them pursuant to the provisions of the Fair Trading Act 1987 (NSW) by Kaveh Akbari (Respondent).
By his Reply filed on 3 August 2022, the Respondent sought the dismissal of the Appellants' appeal.
The appeal was heard on 22 August 2022. The Appellants were then represented by Mr Amir Mazhari. The Respondent represented himself.
It having become apparent during the hearing of the appeal that the Trustees of Paulmir Unit Trust were Pauline Spiteri and Amir Mazhari, and that the Trustees of the Spiteri Family Trust were Anthony Spiteri and Elizabeth Spiteri, by consent the Appeal Panel joined each of those individuals in their capacity as Trustees of the respective Trusts. So doing did not have implications for the fate of the Appellants' appeal, but did reflect the reality that the Trustees of the respective Trusts are properly parties to the proceedings.

Principles governing the appeal

The Appellants are entitled to appeal without leave on a question of law pursuant to s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and, with leave of the Appeal Panel "on any other grounds". As this is an appeal from a decision of the Consumer and Commercial Division of the Tribunal, to be granted leave to appeal on other grounds, the Appellants need to demonstrate that they "may have suffered a substantial miscarriage of justice" because, relevantly for present purposes, the decision of the Tribunal under appeal was not fair and equitable or the decision of the Tribunal under appeal was against the weight of evidence (cl 12, Pt 6, Sch 4 to the CAT Act).
Neither party was represented before the Tribunal or before the Appeal Panel. Consistent with authority (Ros v Commissioner of Police [2021] NSWCATAP 70, at [21]) "[i]n order to assist the appellant as a self-represented litigant in the articulation of his grounds of appeal, the Appeal Panel has considered whether it can discern any questions of law as grounds of appeal from the Notice of Appeal". Lest it be thought that the Appellants have been advantaged, and the Respondent disadvantaged by that approach, the Appeal Panel has also considered whether it can discern responses to such questions which the Respondent, as a self-represented litigant, might not articulate.
In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel said, at [13] that, as it "may be difficult for litigants in person to clearly express their grounds of appeal", it was appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal to examine whether it is possible to discern grounds of appeal that may either raise a question of law or a basis for leave to appeal". That had to be "balanced against the obligation to act fairly and impartially". The Appeal Panel considered that s 38(2) of the CAT Act, which provides that the Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice". That does not mean that the fate of the appeal is determined by the exercise of "palm tree justice" (State Rail Authority of New south Wales v Consumer Claims Tribunal (1988) 14 NSWLR 473, at [477B and G]).
In Collins v Urban [2014] NSWCATAP 17 at [65] to [84], the Appeal Panel considered the provisions and principles governing applications for leave to appeal from decisions of the Consumer and Commercial Division. The Appeal Panel accepted that cl 12 of Sch 4 of the CAT Act does not require that the Appeal Panel must be satisfied that the appellant has actually suffered a substantial miscarriage of justice, all that is required being that the appellant "may" have suffered such a miscarriage [68].
By reference to the decision of the High Court in Mraz v The Queen [1955] HCA 59; [1955] CLR 493 at 514, the Appeal Panel said at [71] 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."
By reference to the decision of the High Court in Gallagher v R [1986] HCA 26; [1986] 160 CLR 392, the Appeal Panel recorded [77] that a decision which is "against the weight of evidence" can be interpreted as a decision in which "the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal Member could reach".
The Appeal Panel further held [78] that the deprivation of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved" may satisfy the appellate tribunal that the appellant may have suffered a substantial miscarriage of justice because the decision under challenge was not fair and equitable, or because the decision was against the weight of evidence.
The Appeal Panel summarised [84] the "general principles" which it discerned from the authorities to which it had referred as establishing (authorities omitted): "(1) in order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact; (2) ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at or clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
The Tribunal previously directed that a party to the appeal who relied upon what was asserted to have occurred during the Tribunal hearing obtain and provide to the Appeal Panel a transcript of the proceedings. Neither party did so. Given that the Appellants bear the onus of establishing error, that is potentially more to their detriment than to that of the Respondent. In the absence of the transcript of the hearing, the Appeal Panel does not know what oral evidence was given, what submissions were made, or whether any matters of significance were conceded, and can make no assumptions about such matters.

The appeal and application for leave to appeal

Each party provided to the Appeal Panel, and to the Tribunal, text messages which were asserted to support their respective positions. Putting the text messages into an orderly or logical sequence is not easy or straightforward. That is perhaps unsurprising given that, as both Mr Mazhari and the Respondent confirmed during the hearing of the appeal, they were previously friends. The email exchanges are consistent with exchanges between persons who were, until late July 2021, on friendly terms, and do not clearly reveal the terms of any agreement between the Respondent and the Appellants, or the Respondent and Mr Mazhari personally.
Although, as Mr Mazhari contends, the Tribunal may have concluded differently with respect to the existence and terms of any contract between the parties, we are not persuaded that it erred in doing so. In the absence of the transcript, we are left only with the emails exchanged between the Respondent and Mr Mazhari. They invite other findings or conclusions to those made by the Tribunal, but do not persuade us that the decision of the Tribunal was wrong in law on any other ground.
The critical findings of the Tribunal were made in the undeniable "absence of clear evidence of the making of an agreement" and thus necessitated close consideration of the circumstances of the dealings between the parties: see [28]. Mr Mazhari was held out by the Appellants as having authority to commit the Appellants to a contract with the Respondent. The relevant conversations occurred at the business premises of the Appellants as the Tribunal found at [29]. It has not been shown that the Tribunal was "wrong" (Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296) in finding that the Appellants were dealing with the Respondent in relation to the outboard motor through Mr Mazhari, or that the Respondent received, and relied upon, advice and services provided by the Appellants: [30]. The outboard motor was viewed at the Appellants' business premises.
Nothing to which the Appeal Panel has been referred establishes that the Tribunal erred in finding that there was no evidence that the Respondent was informed by the Appellants that he was dealing with Mr Mazhari personally at the time the agreement was made. As the Tribunal found, it was only in subsequent text messages, inferentially as an afterthought, that Mr Mazhari asserted that any sale of the outboard motor to the Respondent was "private".
The reliance of the Tribunal at [31] on the part-performance of the alleged agreement provided significant support for its decision. It is not in doubt that on or about 19 May 2021 the Appellants received $5,500 on behalf of the Respondent. The Respondent contends that such payment was in part-performance of an agreement with the Appellants to provide the outboard motor for $10,800. At no time until 24 July 2021 did the Appellants, or Mr Mazhari himself, either suggest that was not the case, or suggest any other basis upon which the Appellants were holding the Respondent's monies. In the circumstances in which the Tribunal was obliged to decide the case, reliance upon that circumstance was appropriate.
It does not follow from declining to find error on a question of law or any other ground, that the Appellants' appeal must fail. The Appellants' ground of appeal asserted that it "cannot supply something that we never had". In their application for leave to appeal, the Appellants reiterated that it would not be "fair and equitable to require them to supply a 2018 4 stroke 150 horsepower Mercury which it does not have nor did agree to supply". Although the Tribunal found that the Appellants had agreed to sell the Respondent the outboard motor, which he asserted that they had ([31]), it did not find that the Appellants still had such an outboard motor.
The Tribunal recognised that the appropriate form of relief was problematic. In its reasons, the Tribunal recorded at [34] the relief sought by the Respondent and that "if the motor is not available, then an alternative order would be compensation for breach of contract". The Respondent did not seek damages in the alternative. The Tribunal recorded at [35] that there was no evidence before it "of the value of a motor of the same or similar quality, and performance of the used 2018 Mercury 150 hp 4 stroke with 86 hours usage so that the Tribunal can determine the difference between the cost of such a specified motor and the agreed value of the motor of $10,800 as compensation for breach of contract". The only evidence of the "quality" of the relevant outboard motor before the Tribunal was that it was in pieces when last seen in early 2021. Nothing to which we have been referred suggests that the Tribunal erred in finding as it did.
The Tribunal proceedings required the determination of two issues. The first was whether the Respondent established that he and the Appellants had entered into a binding contract for sale of the outboard motor in the terms which he asserted. As he did, the Appellants were in breach of the contract. The issue which then required determination was the appropriate form of relief - damages for breach of contract, or, as transpired, relief in the nature of specific performance of the contract. Either form of relief was available to the Tribunal pursuant to s 79N of the Fair Trading Act 1987 (NSW). The Tribunal received little assistance with respect to the first issue, and, from the material before the Appeal Panel, no assistance with respect to the second issue.
As the relief granted by the Tribunal was in the nature of a grant of specific performance, the authorities with respect to the remedy in courts exercising equitable jurisdiction are instructive for present purposes. Equity will not grant specific performance when the remedy at common law, which is usually damages, is an adequate remedy (McIntosh v Dalwood (No 4) (1930) 30 SR (NSW) 415, at [418], Marcolongo v Mattiussi [2000] NSWSC 834, at [39]).
Whether damages are an adequate remedy is a question of fact, each case turning on its own facts, the subject matter of the contract being an important factor in that determination (Young, Croft, Smith, On Equity, 2009, p 942-942). A breach of contract for the sale of goods may not be adequately remedied by an award of damages where there is no market, or the goods may not be readily acquired in the market (Dougan v Ley [1946] HCA 3; (1946) 71 CLR 142). Where goods are unique, or have special characteristics, and cannot be replaced, damages would not adequately compensate for their loss (Aristoc Industries Pty Ltd v RA Wenham (Builders) Pty Ltd [1965] NSWR 581).
The Tribunal recorded, at [34] that, if the outboard motor was "not available, then an alternative order would be compensation for breach of contract". Regrettably, the Respondent did not seek such relief in the alternative. The Tribunal did not find that the outboard motor was available. Nor could the Tribunal have made findings about its condition or operational state. The Tribunal did not find that the outboard motor was unique or special, or unable to be obtained, or readily obtained in the market. Nothing which the Appeal Panel perceives to have emerged from the evidence would support a finding in any of those terms.
The Appeal Panel reluctantly finds that the Tribunal erred by granting the relief it did, rather than awarding the Respondent damages for breach of contract. The evidence before the Tribunal did not provide a basis for finding that damages would not adequately compensate the Respondent for the damages which he suffered as a result of the Appellants' breach of their contract. If undisturbed, the orders may be unenforceable, as the Tribunal inferentially acknowledged, resulting in further litigation, and, inevitably, damages in the sum of $5,500 being ordered in lieu of specific performance.
The Tribunal was able to quantify, at [35], the Respondent's damages if "compensation for breach of the contract" was the appropriate remedy. The Respondent was entitled to have his $5,500 part payment for outboard motor refunded to him. The Respondent failed to prove damages in excess of the $10,800 which he agreed to pay for the outboard motor.
Section 81 of the CAT provides: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
The appeal will be allowed, and in lieu of the relief granted by the Tribunal, an order made that the Appellants repay the Respondent the sum of $5,500 which he paid to them in May 2021.
Although, for foregoing the reasons, the Appeal Panel concludes that the Tribunal fell into appealable error, that involves no criticism of the Tribunal, which received little or no assistance with respect to what is clearly an issue of law of some complexity.

Order 1. The appeal is allowed. 2. The orders of 17 May 2022 in proceedings MV 22/17310 are set aside. 3. The Appellants are jointly and severally liable to and shall forthwith pay to the Respondent the sum of $5,500.

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: 28 September 2022

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