QBC Holdings Pty Ltd t/as Colourful Canvas v Blunck

CEO of Customs v AMI Toyota Ltd [2000] FCA 1343; (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343

Collins v Urban [2014] NSWCATAP 17

Cominos v Di Rico [2016] NSWCATAP 5

Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109

Donohoe v Albulario [2025] NSWSC 9

Ferraro v DBN Holdings Aust PL t/as Sports Auto Group [2015] FCA 1127

FTB v Children's Guardian [2024] NSWCATAP 174

Jackson v Land and Housing Corporation [2014] NSWCATAP 22

Merck Sharp Dohme (Australia) PL v Peterson [2011] FCAFC 128, 196 FCR 145

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231

Orr v Cobar Management PL [2020] NSWCCA 202

Owen v Kim [2017] NSWCATAP 26

Owners SP 74232 v Tezel [2023] NSWCA 35

Pholi v Wearne [2014] NSWCATAP 78

Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39

Safi v Heartland Motors PL t/as Heartland Chrysler [2016] NSWCATAP 80

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62

QBC Holdings Pty Ltd t/as Colourful Canvas (Appellant)

1. We have decided, for the reasons below, to refuse leave to appeal and to dismiss the appeal.
2. Both parties appeared in person and neither sought leave for legal representation on the appeal. We accordingly make no order as to the costs of the appeal.

1. The respondent to this appeal, Ms Blunck (the consumer) contracted in August 2023 for the supply and installation by the appellant (the supplier) of café-style outdoor canvas awnings on the northern and western walls of the consumer's home in Sydney, NSW. The price was $10,000 including GST. The awning spanned three double doors on the northern side and a double door and window on the western side. Two of the northern door sets had transom windows above with a height of 30cm; the remaining door set and the western door and window sets did not.
2. The supplier requested a 50% deposit be paid in advance. The supplier issued a receipt dated 14 August 2023 for the consumer's payment of $5,125.
3. In the primary proceedings filed 15 February 2024 the consumer claimed a refund of $10,125 for alleged breach of the consumer guarantees of due care and skill and fitness for purpose under the Australian Consumer Law NSW described below. She alleged that the awnings had been only partly installed, were faulty and broken, obstructed door movement below them with the pivot arm attachment and were dangerous to use. She claimed an extra $864 for repairing and repainting holes in the walls related to installing the awnings.
4. The consumer's evidence was that she told the supplier's representative on 9 August 2023 what she wanted: the awnings would sit directly above all doors and windows and be horizontally level; the awning arm would slide up/down automatically with the crank handle; the doors would have full functionality opening to 180 degrees and be secured against the external wall. Hinges and attachments for opening and securing the doors in such position were provided.
5. The consumer paid the remaining $5,000 of the contract price on 16 October 2023. The awnings were installed on 18 October 2023.
6. During installation of the north wall awnings it was found that the awning was unable to be installed on the door header, the kitchen door without the transom window would open no more than 20cm when the awning was in use and the arm moved up and down but did not automatically adjust and the consumer had to stand on a chair or ladder manually to manipulate the awnings since the securing holes were at 2.4m in height. Further, the awning spring immediately broke and the powder coating/paint was chipped. The awnings were installed about 50-60cm higher, above the door headers, rather than on the door header, because the installation would not work at the original height, leaving holes at the originally-intended height. A similar issue was encountered with the west wall, where installation was not finished.
7. Discussions on an alternative awning between 20 and 27 October 2023 proved fruitless and on 31 October 2023 the consumer rejected the awnings and requested a refund.
8. There was a meeting on 9 November 2023 between the consumer and a friend of hers as a witness, and two representatives of the supplier. What occurred was controversial as reflected in competing emails of recollection on 14 November 2023. The consumer engaged a debt collector when the supplier refused a refund and complained to Fair Trading.
9. In addition to her own evidence the consumer relied upon a report from a builder who inspected the installed awnings on 18 December 2023. The report was detailed and comprehensive; its conclusions were substantively consistent with the consumer's contentions about the awnings. The report also said that the awning would need to be double the width of the opening to allow for the doors to fold back against the wall and this would impart too great a load on the wall.
10. The consumer also relied on a report from an inspection on 18 December 2023 by an awning competitor who did not supply this type of awning and who said that the supplier did not account for the unique door structure and that the awnings needed to be removed and replaced: "Unfortunately, we couldn't quote for the Florentine style as it's not within our stock range. ... With my 5 years in the awning and blinds industry, it's clear to me that the current awnings were not specified correctly. They obstruct full door functionality, which is a fundamental design misstep and are not fit for purpose".
11. A statement from a carpenter who was present, changing locks on the adjacent double doors, at the time of the supplier's final specification and check measure on 12 September 2023 corroborated, in substance, the consumer's evidence as to what was represented about the location and functionality of the awnings including the automatic operation of the arms, compared with what had been installed when he again visited in November 2023.
12. The northern door without the transom window was worst affected since it could open only 90 degrees whatever the awning height.
13. The consumer's evidence was substantively corroborated in relation to what occurred at the 9 November 2023 meeting by her friend who had attended. The friend's witness statement said that the following were agreed at the meeting: the height of the installed awnings exceeded the agreed location directly above the doorways; the double doors could not open to 180 degrees and be secured against the external wall; the arm mechanism failed to slide up/down automatically when raised or lowered with the crank handle; use of the ladder was required to raise the arm mechanism to a safe height to prevent someone from walking into it; without that protection the arm mechanism obstructed the pathway which was also a safety hazard; the arm mechanism had caused scratches on the powder coating which had also chipped; the wiring was broken on two awnings; there were holes in the wall where installation had been attempted at the agreed height; the awnings looked aesthetically unattractive; the measurer had overlooked the higher door where there was no transom window.
14. Ms De La Croix, who had been the supplier's lead representative at the 9 November 2023 meeting, denied that she at any time said that the awnings were not fit for purpose. Ms De La Croix appeared for the supplier at the primary hearing and on appeal and maintained that denial throughout.
15. Nonetheless, the supplier offered via Fair Trading and as a goodwill gesture, a refund of $5,000 (being 50% of the contract price) and installation of the remaining two awnings not yet installed without further charge to a height the consumer required, together with a changed arm. The consumer rejected that offer.
16. The witness statements relied upon by the supplier and its submissions were to the following effect: the awnings were supplied and installed customised to the consumer's specifications after clear explanation and provision of alternatives; the consumer had obtained two other quotations for the same product before choosing to contract with the supplier and negotiated a lower price with the supplier; the consumer "knew exactly what she was receiving"; the awnings had been installed for over a year and were customised; during installation the consumer could have stopped the process at any time during the day it took for installation but did not; all offers of alternatives were rejected including an offer to pay $5,800 less depreciation and to take down and away the installed awnings; unlike some consumer cases relied upon by the consumer, this was a case of "buyer's remorse"; the expert was the consumer's builder and not independent.
17. In response, the consumer said that the senior representative of the supplier at the 9 November meeting had not been involved in the initial consultations and specifications. The consumer said that she had not been warned about functionality difficulties, the awnings had not been installed in the agreed locations on the specification and did not allow for 180-degree door movement. The quotations by others had been for a different product, there was no signed contract and the consumer's representatives and the consumer were not present during installation, so could not have given instructions to cease work as claimed.
18. The primary hearing took place on 1 July 20024 and the primary decision with detailed reasons (the primary reasons (PR)) was issued on 11 December 2024 and received by the supplier on 12 December 2024. The orders made included that the supplier pay a refund and compensation of the consumer's entire claim, totalling $10,989, and the consumer return the awnings to the supplier on such payment.

1. The Australian Consumer Law is Sch 2 to the Competition and Consumer Act 2010 (Cth) and is made part of NSW law by s 28 of the Fair Trading Act 1987 (NSW) (FTA) under the title Australian Consumer Law NSW (ACL NSW).
2. There was no issue before either the primary member or us that the Tribunal has jurisdiction under FTA Pt 6A to deal with the matter as a "consumer claim". The appellant supplied goods and installation to the respondent as a consumer in NSW: FTA s 79D(a) "consumer", "supplier"; ss 79E-79K(1)(a). The claim was clearly made within three years after it "first accrued": s 79L(1). The amount claimed was under the current Tribunal jurisdictional limit of $100,000 and under the prior limit of $40,000: s 79S. The Tribunal can make a money order under s 79N(a) with s 79Q(1).
3. By operation of FTA s 32 the ACL NSW applies to persons carrying on business within NSW, entities incorporated or registered under NSW law and persons ordinarily resident in or otherwise connected with NSW and for such applications extends to conduct and other acts, matters and things occurring or existing outside or partly outside NSW (whether within or outside Australia). The ACL NSW clearly applies to the appellant.

1. As the primary member referred to in part, the ACL NSW 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).
2. In respect of the supply of services to a consumer, there are guarantees that the services were supplied with due care and skill (ACL NSW s 60) and were reasonably fit for any expressly or implicitly disclosed purpose or result (s 61).
3. Under ACL NSW s 64, such guarantees cannot be excluded. Under s 64A(2), a term of a contract for the supply of services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption is not void if the term limits a person's liability for failure to comply with a guarantee to the supplying of the services again or the payment of the cost of supplying the services again. Such a limit was not relevant in the present matter.

1. Where these guarantees are not complied with, the consumer has rights pursuant to ACL NSW ss 259-264 in respect of goods and ss 267-270 in respect of services.
2. Under ACL NSW s 259(2), if the failure is not major and can be remedied, the consumer may require remediation within a reasonable time or, if such request is not complied with, otherwise have the failure remedied and recover all reasonable costs of remediation from the supplier, or notify the supplier that the consumer rejects the goods on grounds specified in the notice (subject to the rejection period limit discussed below).
3. If the failure cannot be remedied or is major, the consumer may notify the supplier that the consumer rejects the goods on grounds specified in the notice (subject to the rejection period limit discussed below), or recover by action from the supplier any reduction in the value of the goods below the price paid or payable for the goods: s 259(3).
4. Additionally, under ACL NSW s 259(4) the consumer may recover by action from the supplier damages for any reasonably foreseeable loss or damage suffered by the consumer because of the failure, unless it is established that the failure to comply occurred only because of a cause independent of human control that occurred after the goods left the supplier's control.
5. Goods need not be in their original packaging to exercise rights under ACL NSW s 259.
6. A major failure occurs under ACL NSW s 260 if: the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or the goods depart in one or more significant respects from the supply description, sample or demonstration model; or the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such purpose; or the goods are unfit for a particular purpose made known to the supplier or person negotiating or arranging the supply and the goods cannot easily and within a reasonable time be remedied to make them fit for such purpose; or the goods are not of acceptable quality because they are unsafe.
7. 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 in respect of a supply of goods, summarising its conclusions at [99]-[102]. Under ACL NSW s 260(a), the test is objective and can be applied by analogy to services. 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 remedy them, a reasonable consumer would have acquired the goods or acquired nothing or something else. Thus, for a major failure constituted by chronic or repetitive defective supply taken as a whole, such a period is likely to be longer than for a single catastrophic defect.
8. 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.
9. Under ACL NSW s 261 a supplier can remedy a non-major failure by curing defective title or for other failures by repair, identical replacement, or refund.
10. Under ACL NSW s 262 a consumer is not entitled to notify rejection under s 259 if the "rejection period for the goods" has ended, the goods have been lost, destroyed or disposed of by the consumer, the goods were damaged after supply for unrelated reasons, or the goods cannot be detached from other property without damage to them. The "rejection period" for goods is from the time of supply to when it would be reasonable to expect the relevant failure to comply with a guarantee to become apparent having regard to the type, likely use, reasonably-expected life, and reasonably-expected usage before a failure becomes apparent.
11. ACL NSW ss 263 and 265 regulate refunds, return of goods and termination of and refunds under any connected services contract. ACL NSW s 264 gives the same guarantees and remedies for replacement goods.
12. In respect of services, under ACL NSW s 267(2), if the failure is not major and can be remedied, the consumer may require remediation within a reasonable time or, if such request is not complied with, otherwise have the failure remedied and recover all reasonable costs of remediation from the supplier, or terminate the contract.
13. If the failure cannot be remedied or is major, the consumer may terminate the contract or recover by action from the supplier any reduction in the value of the services below the price paid or payable for the services: ACL NSW s 267(3).
14. Additionally, under ACL NSW s 267(4) the consumer may recover by action from the supplier damages for any reasonably foreseeable loss or damage suffered by the consumer because of the failure.
15. A major failure occurs under ACL NSW s 268 if: the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or the services are substantially unfit for a purpose for which services of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such purpose; or the services and any product resulting from the services are unfit for a particular purpose made known to the supplier and the services and product cannot easily and within a reasonable time be remedied to make them fit for such purpose; or the services and any product are not of such a nature, quality, state or condition that they might reasonably be expected to achieve a result desired by the consumer made known to the supplier and the services and product cannot easily and within a reasonable time be remedied to achieve such a result.
16. ACL NSW ss 269 and 270 regulate refunds and termination of services contracts and return of goods and refunds under any connected services contract.
17. There is additional specific relief in ACL NSW ss 232-235 and a right of action for damages in s 236 that also apply to contraventions of the consumer guarantees since the guarantees are within ACL NSW Ch 3 to which these rights of relief apply (they also apply to Ch 2).
18. If a defect is established, a respondent has failed to remediate within a reasonable time and an applicant has obtained quotations for remediation by another supplier and seeks that amount as the reasonable cost of remediation, then that reasonable cost would also be the measure of loss in an action under ACL NSW s 267(4). In these circumstances, it would also be the reduction in the value of the services below the price paid or payable for the services in an action for major failure (s 267(3)).
19. The Tribunal jurisdiction under FTA s 79L(1), discussed earlier, is a distinct issue from the relevant ACL NSW limitation period, including because of the test of first accrual in s 79L(1). If the ACL NSW claim is outside the Tribunal's jurisdiction as a consumer claim, that claim would need to be pursued in a court. The wording of s 79L(1) makes clear that for this purpose the cause of action has two elements - contravention or other liability and trigger for right to relief. Otherwise there would be no need for the maximum limitation period in s 79L(1)(b) of 10 years from date of supply of the goods because no relevant limitation period for consumer claims could exceed 10 years if it ran from the time of defective supply alone. When a cause of action or other right to relief accrues or first accrues is a matter of fact to be determined in the circumstances of the case and having regard to the nature of the ingredients of the right to relief: Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 esp at 533-534. A cause of action that is continuous will have continual accrual but one first accrual of the actual claimed loss: Owners SP 74232 v Tezel [2023] NSWCA 35 esp at [45], [48] and [49].
20. The rights of recovery available to an applicant comprise two elements in order to accrue: the contravention of a consumer guarantee and the choice or other trigger for the form of relief. Even if the consumer guarantee was contravened by an inherent defect at the time of supply, the choice or other trigger for the form of relief is when the effect of the contravention emerges.
21. The right of action for damages under ACL NSW has a six-year time limit starting the day after the cause of action that relates to the conduct accrued. The reference to cause of action appears to include the rights of action for damages in ss 259(4) and 267(4) and the rights of action for reduction in value in s 259(3) and s 267(3). There are similar time limits on compensation orders under ss 237 and 239.
22. Here, the applicant's claim was clearly brought within the six-year time limit under the ACL NSW.

1. Turning to relevant matters in the conduct of the appeal, despite directions requiring the filing of transcript extracts on which a party relied, no transcript (or sound recording) was filed by either party.
2. Under the directions made to prepare the appeal for hearing, the parties are to file and serve the evidence from the primary hearing on which they intend to rely. Accordingly, commentary in the appeal papers that went beyond the existing evidence provided to us was not taken into account. To have relied on that commentary would have required a grant of leave (as described below in relation to the principles governing appeals). A grant of leave would have required the commentary to be on evidence not reasonably available at the time of the primary hearing. The nature of the commentary indicated abundantly that the evidence would have been reasonably available at the time of the primary hearing and, if it was in the evidence at the primary hearing, ought to have been provided to us to show that it was before the primary member.

1. At PR [33] the primary member accepted the denial by Ms De La Croix that she had at any time said the awnings were not fit for purpose, including at the 9 November 2023 meeting. This was consistent with her email on 14 November 2023.
2. However, even with that finding, at PR [32] the primary member found that "It is uncontroversial that the awnings provided are not functional and that the [supplier] had offered to rectify the awnings and provide compensation". At PR [34] the primary member further found that "the evidence that has been provided by the [consumer] supports the claim that the goods installed were not fit for purpose. The [supplier] having to rectify the product with alternative arms is supportive of this proposition". These findings were consistent with acceptance of the description at PR [23]:

"The awning arm does not slide up and down automatically with the crank handle. The tension wires were broken, and the white powder coating was chipped off the aluminium base. The double door without the window is the worst affected, as it can only open 90 degrees when the awning is in use at any height. The double door with windows above can open approximately 90% of the way when the pivot arm is raised to a height of 2300mm. A ladder is needed to adjust the arm height, so the projected arm doesn't block the pathway."

1. Having set out the consumer guarantee of acceptable quality for goods at PR [36], the primary member referred to the orthodox test of acceptable quality in Merck Sharp Dohme (Australia) PL v Peterson [2011] FCAFC 128, 196 FCR 145 and in APS Satellite PL v Ipstar Australia PL [2-17] NSWSC 1898 at [57], which we summarise.
2. The test is an objective one, from the perspective of a reasonable consumer fully acquainted with the state and condition of the goods including any hidden defects and any further relevant information known at time of hearing including after-acquired knowledge. The goods must have all the identified qualities enumerated in s 54(2) being fit for all purposes for which goods of that kind are commonly supplied, acceptable in appearance and finish, free from defects, safe and durable. The reasonable consumer would regard the goods as acceptable - the "acceptable standard" - having regard to the matters in s 54(3), being the nature and price of the goods, statements on labelling or packaging, any representation about the goods by supplier or manufacturer and any other relevant circumstances relating to supply of the goods.
3. Excluded under ACL NSW s 54(4) are matters specifically drawn to the consumer's attention before the consumer agreed to the supply which are the only reason or reasons that the goods are not of acceptable quality; under s 54(5) a transparent written notice displayed with the goods stating the reasons is sufficient to satisfy s 54(4).
4. Under ACL NSW s 54(6) goods do not fail to be of acceptable quality if "the consumer to whom they are supplied causes them to become of unacceptable quality,or fails to take reasonable steps to prevent them from becoming of unreasonable quality, and they are damaged by abnormal use" [emphasis added]. Under s 54(7) goods do not fail to be of acceptable quality if "the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods, and the examination ought reasonably to have revealed that the goods were not of acceptable quality".
5. In the appeal the supplier in particular challenged the findings set out in PR [39]-[41]. In those paragraphs the primary member found as follows:

(1) A reasonable consumer would not have entered into the contract if the consumer had known that the awnings would not function to provide shade and the doors would not open 180 degrees.

(2) The evidence from the consumer's building expert was accepted on the doors not opening to full swingback of 180 degrees, breakages of tension wires, chipped display, flaking powder coating and the ladder required to raise the pivot arm being a safety hazard.

(3) The consumer's building expert was accepted on the reasons for the full swing-back not being achieved: awning too narrow by half and doubling it would impart too great a load to the wall; pivot arm and running iron obstructed such opening; incorrect or omitted specification and measurements as observed in part by the carpenter, with resulting extra wall holes having to be drilled.

(4) The supplier's representative confirmed full swing-back functionality and that the awning arm would slide up and down automatically with the crank handle. Instead, the doors had to be operated manually from a chair and then the ladder.

1. At PR [42] an additional finding was made that the crankshaft to open the blinds was unable to lift the arms of the awnings up and down automatically, and that this facility with full swing-back for door opening was the contract purpose.
2. At PR [43]-[44] the primary member found that the consumer rejected the goods within the rejection period.
3. At PR [47], having substantially repeated at [44]-[46] the findings at [39]-[42], the primary member found that the defects constituted a major failure. The primary member pointed to the absence of expert evidence that the awnings could be remedied within a reasonable time as against the supplier's contention that the awnings could be easily and within a reasonable time be made fit for purpose.
4. Accordingly, at PR [48]-49] the primary member found the consumer entitled to her chosen remedy of a refund with compensation for removal of the awnings and remediation.

1. In Jackson v Land and Housing Corporation [2014] NSWCATAP 22, the Appeal Panel at [22] stated that the relevant considerations on exercise of discretion to grant an extension of time under s 41 of the NCAT Act were:

(1) balancing whether strict compliance would work an injustice on the claimant with the opponent's vested right to retain the position or decision after expiry of a relevant time period;

(2) the length of the delay;

(3) the reason for the delay;

(4) the claimant's prospects of success, that is, whether there was a fairly arguable case, and

(5) the extent of any prejudice suffered by the opponent.

1. If the explanation for delay is less than satisfactory or if the opponent is substantially prejudiced, it may be appropriate to investigate if the party seeking the extension can show greater merit than a fairly arguable case
2. The notice of appeal was filed four weeks after the time allowed for filing an appeal: r 32(3)(b of the Civil and Administrative Rules 2014 (NSW). The supplier sought an extension of time for filing the appeal and this was resisted by the consumer.
3. At the hearing of the appeal we were given a confusing explanation for the delay which involved a decision-maker being out of Australia from just before delivery of the decision (although a week earlier the Tribunal had notified imminent publication) and returning a few days after the notice of appeal was filed. That explanation did not assist; rather, it suggested that others were available to prepare the appeal and to communicate to obtain final instructions.
4. The consumer consented to a stay of the primary orders pending finalisation of the appeal and the stay was recorded on 19 February 2025 as granted on condition that the amount in the primary money order was paid into the consumer's solicitors' trust account. We presume from absence of complaint that such condition was performed.
5. Despite our conclusions below which could inform a low view of prospects of success on appeal, on balance we have granted an extension of time to file the appeal until its date of filing. It seems to us that the foregoing considerations tip the balance of justice slightly in favour of giving the opportunity to hear the appeal on its merits. The successful primary party is effectively provided for in terms of the fruits of the primary decision. There is a delay in enjoying those fruits but that is balanced by the assuredness that there is an identifiable fund to pay the primary order if upheld on appeal as opposed to the time and cost of enforcing a money order if it is not satisfied. There was no obvious prejudice in the delayed filing, beyond the usual disadvantage of having further to litigate the matter with risk of adverse outcome.
6. We note that the delay in filing the supplier's evidence relied on at the appeal and other documents for the appeal led to a compliance hearing. We have not taken that into account in the extension of time for filing the appeal itself.

Principles governing appeals from the Consumer and Commercial Division

1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states, in respect of Division decisions:

(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."

1. Clause 12 of Schedule 4 to the NCAT Act 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).

1. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
2. In summary, internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel.
3. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, more recently revisited in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]- [40] esp at [30]-[32], the Appeal Panel set out at [13] a non-exclusive list of questions of law:

(1) Whether there has been a failure to provide proper reasons where they are required;

(2) Whether the Tribunal identified the wrong issue or asked the wrong question;

(3) Whether a wrong principle of law had been applied;

(4) Whether there was a failure to afford procedural fairness;

(5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations;

(6) Whether the Tribunal took into account an irrelevant consideration;

(7) Whether there was no evidence to support a finding of fact; and

(8) Whether the decision is so unreasonable that no reasonable decision-maker would make it.

1. A question of mixed fact and law, such as an alleged error in applying legal principle to the facts, is not a question of law unless the relevant facts are jurisdictional in nature or do not require the appellate tribunal to resolve disputed facts relevant to the matter in dispute, or the question of law does not depend on facts not found: FTB v Children's Guardian [2024] NSWCATAP 174 at [8]; Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]; Orr v Cobar Management PL [2020] NSWCCA 202 at [48], [109]; Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 at [21]- [23]; Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109 at [43]. However, as noted by Basten AJ in Donohoe v Albulario [2025] NSWSC 9 at [33], this general requirement for purity does not stand in the way of an Appeal Panel making necessary findings of fact about the composition of the primary tribunal or conduct of the primary hearing when the question of law concerns a denial of procedural fairness.
2. Taking into account an irrelevant consideration or not taking into account a relevant consideration 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] FCA 1343; (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179.
3. Adequacy of reasons will vary according to the nature of the determination and of the determining body: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 esp at [77].
4. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited by para 12(1) of Sch 4 to the NCAT Act. In such cases, as already set out, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(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).

1. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] and [79] that a substantial miscarriage of justice for the purposes of cl 12(1) in Sch 4 to the NCAT Act may have been suffered where:

"[76] ...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. ...

[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]."

1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 to 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): Pholi v Wearne [2014] NSWCATAP 78 at [32]. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(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."

1. Turning to the specific grounds in cl 12(1)(a) and (b) of Sch 4 to the NCAT Act, in Collins the Appeal Panel said:

"[77] 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] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]."

1. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with under the ground in cl 12(1)(c) to the NCAT Act 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:

(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.'"

1. 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."

1. As the Appeal Panel explained in Cominos v Di Rico [2016] NSWCATAP 5 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. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]- [316]). Relevantly, s 38(2) provides that that Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice'."

1. Nevertheless, the appeal grounds must be reasonably discernible from the material before an Appeal Panel rather than the result of an artificial construct imposed on the material by the Panel: Damico at [45].
2. It is difficult to distil grounds and characterise them because the notice of appeal simply contained a series of statements that we have summarised earlier in these reasons. Doing the best we can on the material, the following emerge:
3. Error of law:

(1) The primary member acted on a wrong legal principle because the cases he cited had no relevance to the present case and "were not of a comparative nature".

(1) The primary member erred in putting weight on the expert report because it was not independent, being from the consumer's builder. The primary member similarly erred in putting weight on the views of a "competitor vying for the works". As a result, the decision was not fair and equitable.

(2) The primary member erred in not giving weight to the supplier's contentions that the consumer was fully informed, "had like for like alternative quotes", accepted the goods when they were installed and "knew exactly what she was receiving due to multiple quotes on the same product. She could have ceased installation at any time".

(3) The primary member erred in not giving weight to the contention that the goods were made to measure and had been installed for a year, so had a depreciated value.

(4) The primary member should not have accepted at PR [40] the hearsay evidence on which the findings in that paragraph were based.

(5) The primary member ought to have given weight to the emails which made clear that the consumer "wanted to cut corners in terms of costs and as such knew that it would be a manual operation. The goods were clearly explained and due to finances the client ordered as such".

1. Both parties appear to have fought the matter and the primary member determined it on the basis of the consumer guarantee of acceptable quality as it applied to a supply of goods, with the obvious purpose factoring into the test for acceptable quality. It is arguable that the relevant defects focused attention on the installation as much as if not more than the inherent quality of the awnings themselves (except for the arms) but the analysis and outcome on the merits as found would not have changed with such a different characterisation and our analysis also would not change.
2. The primary member cited two authorities on the same point, being the content of acceptable quality. This was the correct statement of principle. The supplier cited no authority to support the contention that a made-to-measure item was subject to a different legal principle or range of remedies. To say that it had no application to the present facts is an alleged error of fact. In that respect, the primary member did not find that the facts in the authority cited were applicable, only the statement of principle. The distilled statement of principle was orthodox and not fact-dependent. It was correctly applied to the present facts.
3. We were not provided with a transcript so cannot assess the degree to which (if any) the expert and the consumer's other witnesses were cross-examined or required for cross-examination. The evidence of the expert and of the competitor was reasoned, comprehensive and detailed.
4. Further and in any event, the evidence of the expert was not the subject of contrary expert evidence. In contrast, neither of the supplier's representatives who had been personally involved in the quotation and installation process gave detailed evidence on which a finding could have been made (the salesperson signed a statement of blanket denial with no detail of personal recollection).
5. There appeared from the expert evidence and the photographs, as the primary member found, that the awnings and their arms had the difficulties identified identified by the consumer and that this impacted the swingback of the doors dramatically. This strongly supported the primary member's factual findings and legal conclusions from those findings.
6. The nub of the defence appeared to be (as also appears in the grounds of appeal) that the consumer obtained alternative quotations for the same product, knew that she was choosing this particular product with its specific location and features and went ahead for reasons of economy.
7. This defence does not fit within either of the excuses in s 54(6) or (7) of the ACL NSW set out above. There was no proof that the consumer did anything to cause the goods to become of unacceptable quality, or failed to take reasonable steps to prevent that outcome, or that the goods were damaged by abnormal use. Even if the consumer examined the goods before agreeing to the supply, on which there was no evidence, there was no evidence that such examination ought reasonably to have revealed an absence of acceptable quality.
8. The fact that the awnings were not installed where agreed (as shown by the holes in the wall at that location) in itself infers that such agreed location, based on the supplier's specification and measurements, was inappropriate to achieve the required operation.
9. Further, even if a customer agrees to the quoted product and installation location, the customer is not the expert and the supplier is responsible for a product that works and meets the customer's requirements. If, as appears to be the case, there were errors in specification or measurement, that was the responsibility of the supplier. If the customer's requirements could not all have been achieved as the supplier submitted - because of a requirement that the awnings be at the same height even where a window did not have a transom - that was a matter to be raised with the customer and resolving instructions received, preferably in writing.
10. There was no evidentiary basis for the allegations that the consumer accepted the goods on installation or that the consumer delayed rejection. The consumer's evidence contained text messages showing that she was in Bowral on the day of installation. Rejection occurred on the documentary evidence shortly after the partial installation. Even if the consumer had been present during installation of the first three awnings, an instruction at that point to cease installation could well have been alleged by the supplier to be premature and repudiatory of the contract.
11. The fact that rejection of the goods shortly after installation rendered irrelevant the period in which the goods have remained installed.
12. The supplier's contention that there was a signed contract was not supported by the document being in evidence.
13. The primary member was entitled to accept the evidence of the carpenter who overheard the discussion when the supplier was measuring up. As already said, the absence of a transcript made it not possible to assess the nature of any challenge.
14. The allegation concerning the content of emails was not made out. In an email of 14 August 2023 at 5.25pm the supplier's representative said that the quoted item (Florentine style - sliding rails) was more expensive than the standard Florentine model that another supplier had quoted which explained why the competing quotation was "significantly cheaper", and that the more expensive product was quoted so that "you can open and walk out the door". This was contrary to the allegation that the consumer was cutting corners in accepting the supplier's quotation. It is also consistent with what the consumer stated in her email of 14 November 2023 at 2.58pm:

"I have reviewed the attached emails, specifically the communication from [the supplier's representative], where she notes that the awning style quoted by [a competing supplier] differs from the style she had initially quoted. Please see attached. This is why we chose [the supplier]. The responsibility lies with [the supplier] to leverage their professional expertise in both specifying and installing a product that aligns with the client's requirements. It is not my obligation to acquire the necessary skills for specifying your products. The measurements for all three doorways were taken by [supplier representatives], and it is the responsibility of your staff to recognize any discrepancies, such as differences in height in the doorways".

1. In an email 1 September 2023 at 11.14am the supplier's representative recorded the best price for the convertible style awning with the Florentine option cord/rope operated was $8,245 which, from the price, was clearly the option not chosen by the consumer. That same day at 3.23pm the consumer asked for photographs of the two types of Florentine arms which the supplier sent to her at 3.44pm. At 4.31pm on the same day the consumer asked to be reminded of the pricing for the "modernised pivot arm awning v's the convertible option". On 4 September 2023 at 5.55pm the consumer asked for the invoice for "the Florentine arm awnings in the traditional style". The supplier representative emailed at 9.04am on 5 September 2023 the "amended quote/invoice for the Convertible Awnings as requested". When reminded to provide pricing, the representative at 4.27pm provided a price of $10,000 including GST, which the consumer accepted. That price was the same as on the original quotation dated 14 August 2023 attached to the email quoted above which included "Pivot arm awnings x 3" and "Florentine stye - sliding rails" [emphasis added]. On 7 September 2023 at 8.12am the consumer accepted that quotation and asked for the invoice.
2. The primary member was entitled to, and did, make the relevant findings concerning the proposed goods to be provided and the basis on which the contract was formed from the contemporaneous documentary evidence.
3. For the foregoing reasons, we are not satisfied that leave to appeal should be granted.
4. Leave to appeal will be refused and the appeal dismissed.

(1) Extend the time for filing the appeal to 6 February 2025.

(2) Leave to appeal refused.

(3) Appeal dismissed.

(4) Make no order as to costs of the appeal.

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.