Philpott t/as TallyHo Floats v Macdonald

Background to appeal

1. On 8 February 2019 the appellant was ordered to pay the respondent (who was the applicant in the primary proceedings) $15,500 on or before 22 February 2019. The reason given was expressed briefly immediately below the order for payment and read: "Refund of the purchase price of a horse float trailer that has been found to have a major defect for the purposes of the Australian Consumer Law".
2. The other orders, immediately below that reason, were that, subject to compliance with the payment order, ownership of the horse float trailer that was the subject of the dispute would revert to the appellant (then respondent) and the complainant (now the respondent to the appeal) must make the horse float available for collection by the respondent on or before 22 February 2019 at a time and date agreed between the parties.
3. A stay of those orders was refused by a member of the Appeal Panel.
4. The respondent (whom we shall call the purchaser) had taken delivery of the horse float from the appellant, and paid the balance of the purchase price to the appellant, on 24 August 2017, in NSW. The application for a refund was lodged with the Tribunal in early November 2018.
5. In the application the purchaser said that minor defects appeared "within weeks of purchase" but that "Over 12 months defects and paint issues have occurred which are major issues" and that the appellant had failed to rectify these or acknowledge many issues "and attempts to complete warranty repairs have actually caused more damage that means float cannot be used without further damaging it. Rust appearing on almost all fittings. The jockey wheel bent and the knob fell off within a month of purchase. Paint has faults throughout from dirt in paint to large bubbles appearing and cracks above structural frame which will continue to deteriorate". The purchaser said she had two quotes for rectifying the faults which totalled over $12,000 (with nearly $12,000 for fixing the paint faults). Screws were said to have fallen out over the horses' heads with potential for eye injury. The storm cover and roof vents were effectively inoperable and arms on the storm cover were causing damage by denting which was worsened by the attempted repair by the appellant's workman. The initial LED indicator light fault was not repaired despite two efforts at repair when the float was returned. Covers for sharp edges that could damage the horses chronically fell off. The float with disclosed faults would have problematic if any resale value and a short life compared with what it should have.
6. The application was supported by detailed photographs and chronology of communication concerning the defects, together with detailed quotations in the amounts indicated.
7. In the primary evidence was a business name search at time of lodgement of the application. It showed the business name "Tally Ho Floats" was registered to the appellant personally at the time of supply, and that re-registration date was 29 August 2018.
8. The registered business name "Tally Ho Floats" was the name under "From" on the handwritten document given to the purchaser on 24 August 2017 at time of supply and payment, which both parties referred to at points as the contract at time of sale. The handwritten document was headed "Tax Invoice/Statement" on a pre-printed form, had a date and tax invoice number, and next to the "From" window a "To" window in which the purchaser's name and address appeared. Below that was a description of the float by colour and VIN and a reference to the balance of purchase price $14,500. It was signed by the appellant with no indication that it was being signed in any capacity as agent or other than personally.
9. About 3 weeks later, the purchaser emailed the appellant to ask for an invoice which included the deposit. In that email the purchaser said that the float towed beautifully but raised the issues with paint and the LED indicator. In a reminder email about the invoice mid-November 2017, the purchaser said that the roof vents were getting stuck and the storm cover was jamming and was not able to be opened from the outside. She said that these "could be a major issue if I have two horses on board as I will not be able to get to it".
10. The appellant emailed the same day to apologise and say that she would send through the invoice the next day. The purchaser said she received on 17 November 2017 a printed receipt. There was in evidence a document dated 28 March 2018. Both parties said that was the document that was the subject of the reminder in November 2017. The appellant said it was sent in March 2018; the purchaser repeated it was received on 17 November 2017 and the computer must have updated the document to date of printing. Nothing turned on the date. The document was headed "Sales Receipt" with a name "Tally Ho Horse Floats". It showed a receipt for the full purchase price and description of the trailer substantially similar to that on the handwritten document.
11. The email address under the physical address on the Sales Receipt was a gmail address in the personal name of the appellant. The physical address and ABN were the same as for the appellant on the business name registration for "Tally Ho Floats" that appeared on the handwritten statement in August 2017.
12. The appellant said that she had sold the float on behalf of a company Monwood Property PL ABN 58101249183 (the company), of which she was sole director and (she said) an employee, which company owned the registered business name "Tally Ho Horse Floats" that appeared on the Sales Receipt. She disputed the defects allegations but said that the proper respondent was the company and that she had produced at the primary hearing a current business name registration of the "Tally Ho Horse Floats" name to the company. She said she had no right to sell the float personally as she didn't own it.
13. At the appeal hearing the appellant produced the following documents, none of which (the parties informed us at the appeal hearing) formed material before the primary member: motor dealers licence to the company in the business name "Tally Ho Horse Floats"; consignment note on importation to the company; workers compensation certificate of currency to company for industry classification "Trailer and Caravan Dealing"; heavy vehicle inspection report but with vehicle owner name shown as "Tally Ho Floats". There was every indication that such material was available to the appellant to put before the primary member, and no indication to the contrary.
14. The business name search produced by the appellant showed that the business name "Tally Ho Horse Floats" is held by the company. It contained a different ABN for the company but the same gmail contact address as that for the appellant in her personal name.
15. The purchaser said that none of the material identifying the business name "Tally Ho Horse Floats" nor the float with the company as the owner and seller was produced to her at time of sale. The appellant said that had to be done to obtain transfer of registration, but the purchaser denied seeing the transfer papers and there was no other evidence to suggest that such papers were so required. There nothing on the papers to show that the purchaser had seen them. The evidence contained text messages from the appellant the day before delivery and the day of delivery which indicated that the appellant was arranging transfer of registration prior to delivery.
16. The name "Tally Ho Horse Floats" appeared on some advertising by text messages in May 2017 and on a website commentary in 2011, the latter with a reference to "the lady who sells them ... L started the business because she couldn't find what she wanted so decided to have it made". The subsequent text communications in 2017 were by the appellant personally with no indication of any other person being involved. Some of the messages immediately prior to and about the time of delivery were headed "TallyHo Lynda", Lynda being the first name of the appellant. In the course of her submission to the Appeal Panel the appellant confirmed that to her understanding there are two business names: "Tally Ho Floats" which was registered to her; and "Tally Ho Horse Floats" which is registered to the company.
17. On the day before delivery and payment, the purchaser texted the appellant to ask "What is the full name of Tally Ho for the cheque, don't want to get that wrong". The appellant texted back "yes tally ho floats".
18. There was no indication, in any of the email and text communication concerning defects, that the appellant disputed who was the seller with an obligation to deal with alleged defects.
19. The photographs showed, in clear scrolled writing on the front roof edge of the float, "Tally Ho Floats".
20. The only discordant evidence before the primary member that was before us was the following.
21. First, there were two references to the appellant's boss. In one of those the purchaser, who placed the material into evidence, said to Fair Trading that the appellant had written down the price of the float on the handwritten receipt to reduce the cost of stamp duty on registration, that the purchaser felt sorry for the appellant who said her boss was making her pay the registration and stamp duty out of her earnings, so the purchaser then offered to pay the stamp duty. The purchaser went on "stupid me since she is her own boss".
22. Secondly, it was said, in response to the primary member's question to the effect of who did the purchaser think she was dealing with, that the purchaser's answer showed she knew she was not dealing with the appellant personally. An alleged summary of the transcript was provided together with a disc containing the transcript. The purchaser said the alleged summary was not an accurate reproduction of the evidence at the primary hearing. The summary contained the following as an alleged extract: "[purchaser] I thought Tally Ho Horse Floats was a company belonging to [the appellant]". A later alleged extract in the summary had this: "Member: "so at what point did you become aware that you were dealing with Monwood Property Pty Ltd … if ever. [Purchaser] Today. (BUT) when I received the paperwork from [the appellant] I noticed that the return other things details [sic] said Monwood but I did not know what that meant (or words to this effect) Member: So when you had this arrangement in 2017 were any details of Monwood Property Pty Ltd given to you [Purchaser] No".
23. The recording of the primary hearing confirms the substance of what is recorded in the immediately preceding paragraph. Additionally, it made clear that the reference to receiving the papers was when the purchaser was served with the appellant's material for the primary hearing, in January 2019. It also made clear that the member pointed out to the appellant the use of her ABN on both documents recording the purchase (August and November 2017) and gave her an opportunity to explain any other matter that could show the awareness of the purchaser of the company at the time of sale in August 2017. This produced no further material to what has been reviewed except that the appellant said she had made a mistake in her hurry. It also confirmed that no further oral reasons were recorded on the disc.
24. We set out later in these reasons our assessment of the evidence we have recited.
25. A gentleman sought at the primary hearing to appear for the company and to add it as a further respondent. That was refused by the primary member on the basis that, on the material before him that we have mentioned above, the supplier was the appellant personally. The primary member also refused the gentleman leave to represent the appellant on the basis that each party was present and able to speak for herself, but permitted the gentleman to sit with and speak privately with the appellant. The purchaser had objected to the appellant being represented by the gentleman.
26. At the appeal hearing, the gentleman again appeared and applied to speak for the appellant and to complain about the refusal to allow him to speak for the company. We refused those requests for leave. We deal below with the refusal of the application at the primary hearing to join the company to the extent that was implicitly raised as an appeal ground. On the gentleman seeking leave to speak for the appellant, it seemed to us that to grant that leave, to a person who was seeking to make the case that the appellant escaped liability because the true liability was with a company previously represented by that gentleman, was procedurally unfair, when the case was not complex and the purchaser was unrepresented. In any event, the gentleman sat at the bar table with the appellant, who constantly referred to him for, and received, comment in private conversation which was immediately followed by what appeared to be repetition in substance of the private comment.

Grounds of appeal

1. The Notice of Appeal lodged, in time on 21 February 2019, said that it challenged the orders made by the primary member against the appellant personally.
2. The present Notice of Appeal appeared to have been drafted by someone with an understanding of what it was intended to set out. It did however combine material on grounds of appeal and argument in support of those grounds. Having regard to the approach taken in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 in a situation where there was no overt legal representation, we have sought to discern the substance of the grounds.
3. The grounds for that challenge were, in summary, as follows: 1. The appellant never agreed to be a respondent but was added after she told the Tribunal registry that "Tally Ho Floats", the name for the respondent put on the application by the purchaser, was no longer active and provided a business name search for "Tally Ho Horse Floats". This was an error of law in identifying the correct respondent which the appellant did not know until the primary hearing. 2. It was an error of law for the primary member to refuse to allow the gentleman who sought to speak for the company to speak directly to the Tribunal. 3. It was an error of law to find the appellant personally liable on the material before the Tribunal. 4. Alternatively, it was not fair and equitable for the appellant to be found personally liable when she had done everything she could to identify the correct supplier and, hence, the company as the correct respondent. The appellant did not know the position on her being shown as the respondent until the actual primary hearing. 5. Alternatively, refusal to allow the company to speak directly at the primary hearing was also not fair and equitable. 6. It was not fair and equitable, when the appellant was clearly unprepared for a personal defence at the primary hearing, not to allow an adjournment. This also reinforced the previous ground, since it was said that the gentleman wishing to speak for the company "was fully prepared". Such full preparation included being ready to present "an alternate set of explanations as to the extent and causation of the alleged paint defects". It also included presenting an alternate range of options for remedy at significantly less cost. 7. The identification of the appellant as the supplier was against the weight of evidence, in particular the business names registration for "Tally Ho Horse Floats". 8. In the course of the primary hearing the purchaser in response to the primary member's question said that her husband was not employed by the major quotation provider for the purchaser but was a business associate who transacted business with the provider: "The potential for a conflict of interest and impartiality rising [sic] from this close business connection between the applicant's husband and the quote provider is inequitable unfairness". 9. The member should have pressed the purchaser to determine the extent of the business association which the gentleman seeking to represent the company was intending to canvass. 10. There was new evidence being the website "boast" for the quote provider that it used a number of local businesses to "ensure your car is repaired back to its original state" which meant the repair did not reflect fair wear and tear.
4. It will be noted that the grounds of appeal did not directly dispute the substantive defects in their entirety, only the paint and the appropriate extent of remedy.
5. It will also be noted that the grounds of appeal did not seek to put into evidence the documents identified earlier as not before the primary member that allegedly supported a connection between the company and the horse trailer.
6. The reply to the notice of appeal, which was said to be prepared with legal assistance, opposed legal representation at the hearing of the stay application or the appeal and disputed the preceding matters.

Applicable legal principles

1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) states: "Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."
2. Clause 12 of Schedule 4 to CATA states: 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).
3. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
4. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179.
5. These categories are not exhaustive of errors of law that give rise to an appeal as of right. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as specifically included: 1. whether the Tribunal provided adequate reasons, which explain the Tribunal's findings of fact and how the Tribunal's ultimate conclusion is based on those findings of fact and relevant legal principle; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
6. The "no evidence" ground must identify that there is no, or substantially inadequate, evidence to support a "critical" or an "ultimate" fact in order to constitute a jurisdictional error (a form of error of law): AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348, [2016] NSWCA 229 at [81]; Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263, [2001] FCA 865 at [52]-[56].
7. A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). However, by s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
8. Legal unreasonableness can be concluded if the Panel comes to the view that no reasonable tribunal could have reached the primary decision on the material before it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 364 [68]). A failure properly to exercise a statutory discretion may be legally unreasonable if, upon the facts, the result is unreasonable or plainly unjust: Li (2013) 249 CLR 332 at 367 [76]). There is an analogy with the principle in House v The King (1936) 55 CLR 499 at 505 that an appellate court may infer that there has been a failure properly to exercise a discretion "if upon the facts [the result] is unreasonable or plainly unjust" and legal unreasonableness as a ground of judicial review: Li at 367 [76]. Further, there is some authority to the effect that unreasonableness as a ground of review may apply to factual findings, although this has not been finally resolved: see Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 at [153]; Wehi v Minister for Immigration and Border Protection [2018] FCA 1176 at [29]; Legal Profession Complaints Committee v Rayney [2017] WASCA 78 at [193].
9. The Appeal Panel has stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to look at the grounds of appeal generally, and to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations in favour of the respondent: Prendergast at [12].
10. Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]-[79] and [84(2)] as follows: 74 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. 75 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" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 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 - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … 78 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. 79 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 then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. 84 The general principles derived from these cases can be summarised as follows: … (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 and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
11. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37] -[39]: 37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.' 38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]: 'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'
12. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.
13. Even if the appellant establishes that he or she may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the NCAT Act, the Appeal Panel has a discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]) The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Panel's consideration of whether or not to exercise that discretion.
14. In dealing with errors of law and errors of fact, the Panel must be cognisant that the two can intermingle. The Panel must also be alert that, under Australian law, there is a different approach to matters between two situations. The first of these is where the particular decision has involved evaluation from findings of primary facts and the drawing of inferences therefrom on which reasonable minds may differ but which must be accepted as legally correct unless overturned or varied on appeal. The second situation arises where there has been an exercise by the primary decision-maker of a discretion or choice embodied in the statute or law being applied, including as to whether relief is to be granted or refused and the form of relief: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [18], [20], [26], [30]-[32], [43]-[45], [48]-[49], [55]-[56], [85]-[87], [127]-[128], [153]-[155].

Error of law

1. We consider that a finding about whether or not the respondent actually sued is the correct respondent is not an error of law. An applicant is entitled to sue whom the applicant wishes (subject to rules about vexatious proceedings and similar) and will either succeed, or fail, to establish that the person sued is liable, as a matter of fact and law, to the applicant for the matter of complaint. A defence that the wrong person has been sued raises issues of fact and law like any other defence.
2. This disposes of the grounds of appeal on error of law. There is no error of law in refusing to join a respondent when the respondent already joined can make the case to show that she is not liable because the contract was with someone else.
3. Although it was not advanced as an error of law, there was no denial of procedural fairness that could have constituted an error of law in respect of an adjournment not granted when it was not asked for.
4. There is however, in our view an error of law not raised by the appellant which leads us to the conclusion expressed below. That was the absence of reasons given, in the manner that reasons are required to be given on the authorities we have already discussed. The very brief reasons we have recorded in the first paragraph above are the only reasons that appear in the sound recording or that are published. They do not set out the findings of fact and application of legal principle that lead to the conclusion that justifies the relief granted. Similarly, when the primary member refused to allow the company to be joined as a respondent and to allow the gentleman to speak for the appellant, no reasons that set out the factual and legal basis for refusing those applications were given by the primary member.
5. We deal with the consequences of that error of law below.

Grant of leave to appeal on questions of fact

1. We consider there is no basis for a grant of leave on the foregoing authority concerning alleged errors of fact.
2. On the material before the primary member, that we have earlier described, there was no question that the appellant was able to be identified as the proper respondent at the primary hearing. The applicant-purchaser originally named, as the respondent, the business name on the handwritten invoice. A business name search showed that the owner of the then-current business name was the respondent-now-appellant. The real question, which was a question of fact and law discussed below, was whether that was the person with whom the purchaser contracted on 24 August 2017.
3. For reasons already considered under errors of law, there was no error of fact in refusing leave to the appellant to have someone else speak for her.
4. There was also no unfairness or inequity in refusing an adjournment even if it had been asked for, let alone suggesting one. If such an adjournment application had been made then its refusal was well within the range provided for in the decisions of the High Court such as Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175, [2009] HCA 27 and Rozenblit v Vainer [2018] HCA 23 and UBS AG v Tyne [2018] HCA 45.
5. In that respect, the gentleman who sought to speak for the company and for the appellant, according to the appellant's own material, was ready to present the case on the merits. That material was available, at the primary hearing, to the appellant as a director of the company for whom the gentleman sought to speak. As occurred in the appeal hearing, the gentleman was clearly available to assist the appellant in presenting that material; the recording confirms that the primary member said he could advise the appellant and he clearly did from time to time, from the pauses in what the appellant put to the primary member and then the continuation of what was in substance a well-presented set of evidence and submissions, with an equally well-presented set of evidence and submissions by the purchaser. If the opposing material, said to have been available to the gentleman, on nature of defects and appropriate scope of remediation had been sought to be put into evidence at the time of hearing, the purchaser's submissions made it plain that it would have been the subject of vigorous contest. That contest would have been about the qualification of the provider of the opinion and the adequacy of the quotation given the alleged limited range of defects on which it was based.
6. The primary member's decision had a clear basis in the material before him that we have described at the start of these reasons. The decision on that material was not against the weight of evidence or inequitable and unfair so as to be a substantial miscarriage of justice of the serious type required to justify grant of leave to appeal.
7. In relation to the alleged conflict of interest, there was no exploration in the material before the primary member as to circumstances or nature of the alleged conflict that allegedly arose from a business relationship which itself was not tied down in its nature, extent or character. There was no exploration of how any business relationship impacted, by inference grounded in evidence, on the quotation provided. When questioned by the primary member about the relationship, the purchaser said: a metal fabricator suggested that she have a paint specialist look at the paintwork but did not identify the entity to whom the purchaser went; the purchaser's husband was not employed by that entity; at some point the purchaser's husband in his own business had done work for the entity; there was no other association with the entity; she did not know the person at the entity who prepared the quotation.
8. The webpage, and any other of the material not put before the primary member, were reasonably available to the appellant or the gentleman seeking to represent the company; many of them were company documents and he was said to be fully prepared. The webpage was so unspecific that an inference could not be drawn of over-quoting. In any event, such material was equivocal in its association with the company and would not stand against the weight of other evidence supporting the primary member's conclusion.
9. Finally, even if the company had been demonstrated to own the trailer, that of itself would not relieve the appellant. The appellant would need to demonstrate that she was selling on behalf of the company. There was simply insufficient material so to demonstrate.

Appropriate relief on appeal

1. CATA s 81 provides that, in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal. The section sets out a list of available orders which is not exhaustive or mutually exclusive because the wording referring to them in s 81(1) is "including (but not limited) to orders that provide for any one or more of the following" listed examples of orders. The list includes: allowing the appeal under para (a), setting aside the primary decision and remitting the whole or any part of the case to the primary level of the Tribunal for reconsideration, either with or without further evidence and in accord with the Appeal Panel's directions under para (e), confirming, affirming or varying the decision under appeal under para (b), and under para (d) setting aside the decision under appeal and substituting another decision for it.
2. The error of law that we have identified necessitates reconsideration of the matter to expose the reasoning behind a conclusion on the evidence.
3. In our view it is appropriate for the Appeal Panel itself to undertake the re-consideration of that issue. The Appeal Panel has before it the material before the primary member on the factual matters underpinning determination of that issue that the parties have chosen to put before the Panel, together with other material not before the primary member but shown to the Appeal Panel (primarily the documents said to link the trailer with ownership by the company). There was no attempt to put forward the material on defects and appropriate relief which was said to have been prepared for the company but which was available to the appellant as a director of that company. It is consistent with the guiding principle in CATA ss 3(d) and 36, that proceedings be resolved justly, quickly, cheaply and with as little formality as possible, that it be brought to a conclusion: cf Lee v Commissioner of Police, NSW Police Force [2017] NSWSC 1849 at [47].

Reconsideration of the issues raised on appeal

1. The appeal accordingly succeeds on identifying an error of law. However, our reconsideration of the material supports, on a basis that exposes the reasoning, the same conclusion as that arrived at by the primary member.
2. The applicants were consumers and the respondent a supplier, the claim was a consumer claim for supply of services in NSW under a contract made in NSW and was brought within the 3 year time limit under Part 6A (ss 79D-79L) of the Fair Trading Act 1987 (NSW) (FTA). The claim is under the jurisdictional limit provided for in FTA s 79S of $40,000. FTA s 28 makes the Australian Consumer Law (ACL) part of the law of New South Wales.
3. The ACL provides, in respect of the supply of goods to a consumer, guarantees that the goods supplied are of acceptable quality (ACL s 54), are reasonably fit for any expressly or implicitly disclosed purpose or supplier-represented purpose (s 55), and correspond with the description by which the goods are supplied (s 56). Where these guarantees are not complied with, the consumer has rights pursuant to ACL ss 259-264 to remediation, to compensation for reasonably foreseeable loss or damage arising by reason of the non-compliance, and, in the case of a major failure, the right to reject the goods and obtain a refund, provided that such right to claim a refund is exercised within the "rejection period".
4. The ACL provides, in respect of the supply of services to a consumer, guarantees that the services were supplied with due care and skill (ACL s 60) and were reasonably fit for any expressly or implicitly disclosed purpose or result (s 61). Where these guarantees are not complied with, the consumer has rights pursuant to ACL ss 267-269 to remediation, to compensation for reasonably foreseeable loss or damage by reason of the non-compliance and, in the case of a major failure, or another failure which has not been remedied by the supplier as required, the right to obtain a refund, provided that such right to claim a refund is exercised within the "rejection period".
5. Section 64 of the ACL provides that the consumer guarantees cannot be excluded; however, s64A permits the contractual limitation of the remedies for breach of a consumer guarantee if the goods or services are of a kind not ordinarily acquired for personal, domestic or household use or consumption.
6. In Safi v Heartland Motors PL t/as Heartland Chrysler [2016] NSWCATAP 80 at [85]-[107] the Appeal Panel analysed the case law on what constituted a major failure under the consumer guarantee provisions of the ACL mentioned above, summarising its conclusions at [99]-[102]. The Panel rejected the view that any breach of the guarantee of acceptable quality is a major failure. Under s 260(a), the test is objective. A series of individual or specific defects taken as a whole may constitute a major failure. The cost of repairs relative to purchase price and the nature of the defect are factors. Of particular significance is whether the defects are "teething problems" or go beyond that in terms of extent, timing and frequency of repair: that is, whether or not the defects can be remedied easily and in a timely manner. Overall, the test is whether, faced with advance knowledge of the problems and what was needed in terms of time, costs and degree of difficulty to fix them, a reasonable consumer would have bought the goods or bought nothing or something else.
7. Under ACL s 260(a), the rejection period for goods that are subject to a major failure is the period from the supply of the goods within which it would be reasonable to expect the relevant failure to comply with a consumer guarantee to become apparent, having regard to the type and likely use, and length of time and amount of use before a failure would reasonably become apparent. For a major failure constituted by chronic or repetitive defects taken as a whole, such a period is likely to be longer than for a single catastrophic defect. If there is a major failure, the consumer's entitlement to a refund is not dependent on proof of loss: Ferraro v DBN Holdings Aust PL t/as Sports Auto Group [2015] FCA 1127.
8. Here the focus is on the consumer guarantees for supply of goods.
9. The FTA definition of consumer claim also includes a claim at general law in respect of the contract. No general law claim, such as substantial failure of consideration, was advanced before the primary member or us, and we express no conclusion on it.
10. Looking afresh at the material that we have set out earlier in these reasons, we have reached the decision that the primary member clearly came to the correct conclusion as to liability and appropriate remedy on the material before him together with the material not before him but shown to us. The evidence from the handwritten document at time of supply was clear in its identification of the appellant as the seller. The other matters identifying the sale with the appellant that we have described at the outset of these reasons supported that conclusion and the only indications to the contrary that we have also mentioned did not cast any significant doubt on that conclusion.
11. There was no expert or other evidence to support the allegations made by the appellant that the alleged defects were caused by wear and tear on rough roads with large horses (some unbroken) on their way to training. The purchaser denied the allegations about rough roads to her trainer rather than sealed roads and the size of her horses. In any event, the appellant agreed that there was no restriction on the types of horses that the float could take; as the primary member said, "it was a horse float" with which the appellant agreed. There was no competing evidence on the scope and cost of remediation to that provided by the purchaser in the form of photographs and description in a detailed quotation. The scope in that evidence clearly met the test set out above for a major failure entitling the purchaser to the relief of a refund that she sought.

Costs

1. No costs orders were made at the primary hearing. No costs orders were sought on appeal.

Orders

1. The orders we accordingly make are as follows: 1. Leave to Appeal is refused to the extent that leave is required. 2. Appeal is allowed for an error of law. 3. On a reconsideration of the matter by the Appeal Panel, confirm the orders of the primary member made on 8 February 2019 for the reasons given herein. 4. Note that no variation in the dates in those orders is required because no stay of those orders is in place.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 04 June 2019