Sam Komadina t/as We Paint Pools v Kelleher

The Decision under Appeal

1. The evidence provided by Ms Kelleher in support of her claim included a copy of the contract; receipts; photographs; text messages; quotes for rectification work; correspondence with Fair Trading; and reports by Mr Terry Wilson, a licensed swimming pool builder trading as A Better Way Services, who carried out rectification work.
2. The quotation provided by Mr Komadina dated 14 January 2017 includes the following work: 1. Brace pool 2. Empty water 3. Pressure clean 4. Acid wash 5. Check interior for any cracks and repair same; 6. Rough up surface, so coating adheres to surface; 7. Apply two coats epoxy, in the colour of your choice.
3. The quotation was addressed to Mark Hodges, and acceptance signed by him on 16 January 2017. Ms Kelleher's evidence was that Mr Komadina tried to repair the pool, however when it was refilled there was a crack which split, the side of the pool was starting to cave in. Mr Komadina said that it was not necessary to brace the pool. Mr Komadina stopped responding to her and she contacted A Better Way Services who took over the job including bracing the pool. Fair Trading told her that Mr Komadina was licensed as a house painter and not a pool person and that he had renewed his licence by the time they went to see him. He stopped all contact and Fair Trading told them they could get somebody else to complete the job.
4. Mr Wilson gave oral evidence. The Tribunal Member clarified that Ms Kelleher is the owner of the property and Mr Hodges is her partner. The Member considered the quotes for work done by A Better Way Services and calculated the compensation payable as the additional costs of getting the repair work done.
5. The Member's order was in the following terms: $21890.00 compensation for the costs of rectifying incomplete and defective home building works (being the repair of an in-ground pool) being works contracted for and partially carried out before they were abandoned while the Respondent did not hold a licence entitling him to carry out this work.

The Appeal

1. The Notice of Appeal, which was prepared by Mr Dela Cruz, challenged the Member's finding that he was satisfied that notice of the hearing had been duly served, and the decision to order payment of $21,890.00. The ground of appeal was that the appellant was denied natural justice as the orders made on 2 August 2017 were made in the absence of the appellant and without notice to him.
2. Mr Komadina sought leave to appeal on the ground that there was a clear injustice in circumstances where orders were made which were adverse to the appellant in the absence of and without notice to him. The Notice of Appeal states that the appellant was not able to make an application under cl 9 of the Civil and Administrative Tribunal Regulation 2013 (the NCAT Regulation) as he did not receive notice of the orders until after the 7 days prescribed by cl 9(3) had elapsed. A further ground was that significant new evidence was available, being a witness statement of Mr Komadina which showed that at the time of making the orders he had not received notice of the hearing.
3. The Notice of Appeal included a witness statement by Mr Komadina dated 31 August 2017 in which he states: 1. He has resided at xx Harvey Street Parramatta since about 2014; 2. He previously resided at xx Pitt Street Parramatta; 3. He did not receive notice of the hearing on 2 August 2017; and 4. He did not carry out the works the subject of the application as it was another contractor who carried out the works, directly engaged by the respondent.
4. Mr Komadina provided an affidavit sworn 12 September 2017 in which he stated: 1. He received the respondent's text message of 19 June 2017 advising that she had left documents at the Pitt Street address, and he did not respond or attend to collect the documents; 2. He was evicted from xx Pitt Street in about 2012 and is not on speaking terms with his mother who has possession of that property; 3. He was not sure what NCAT was at the time of receiving the text message; and 4. After receiving the text message, Fair Trading advised him that they had concluded an investigation, and he thought the matters involving the Tribunal had been concluded.
5. Mr Komadina's written submissions repeat the factual statements in the two statements, and submit that the lack of opportunity to attend and provide evidence resulted in an unfair and inequitable decision, and he was denied procedural fairness and natural justice.

Reply to Appeal

1. The respondent supports the Tribunal decision, stating in the Reply to Appeal: 1. Mr Komadina's address was xx Pitt Street Parramatta when he renewed his licence in May 2017; 2. She dropped her evidence to him at the Pitt Street address and texted him to say she had left it on his front door step; and 3. Mr Komadina received text messages and emails as well as notification from the Tribunal.
2. The respondent provided a screen shot of a text message dated 19 June 2017 to Mr Komadina, with a photograph of a white envelope on the door step at xx Pitt Street Parramatta.
3. The respondent relied on an affidavit sworn on 16 October 2017, in which she states: 1. Mr Komadina was contracted to do the work on her pool on 16 January 2017; 2. The ASIC search dated 10 April 2017 provided to the Tribunal is consistent with an ASIC search dated 5 April 2017 which also shows Mr Komadina as holder of business name We Paint Pools, ABN 14 390 845 516, with the address for service of documents as xx Pitt Street Parramatta; 3. An ASIC search dated 6 October 2017 confirms that We Paint Pools is still registered with an address for service of documents at xx Pitt Street Parramatta; 4. She informed Mr Komadina of her intention to take the matter to Fair Trading in late February-early March 2017, by email on 6 March 2017, and by email on 26 March 2017 attaching quotes for work required to complete the pool; 5. She lodged the application with NCAT on 5 April 2017; 6. She received notice of conciliation and hearing on or about 12 May 2017, and notice was sent to We Paint Pools at xx Pitt Street Parramatta on 12 May 2017; 7. On 19 June 2017 she attended the premises at xx Pitt Street Parramatta, and left a copy of the bundle of documents she had prepared for the hearing and had filed at the Tribunal; and 8. She then sent a text message to Mr Komadina to say that she had dropped off the paperwork for the NCAT hearing.
4. In written submissions filed on 17 October 2017 the respondent submits that: 1. Mr Komadina was on notice of the proceedings in HB 17/15866, by the respondent's telephone calls and emails in February - March 2017; 2. The respondent was entitled to rely on the correctness of the information in the ASIC Business Names Register for the purpose of notifying Mr Komadina of the proceedings; 3. Section 35 of the Business Names Registration Act 2011 (Cth) requires entities to give and maintain the correctness of information recorded in the Business Names Register, and failure to provide correct information may lead to cancellation of the registration of the business name under s 48 of the Business Names Registration Act; 4. At all material times the appellant's registered address for service of documents for the purposes of rule 13 of the Civil and Administrative Tribunal Rules 2014 (the NCAT Rules) was, and remains, xx Pitt Street Parramatta; 5. All documentation relevant to the proceedings was correctly served on the appellant and he was on notice of the proceedings and of the hearing on 2 August 2017; 6. To condone the appellant's reliance on, at best, his own non-compliance with the Business Names Registration Act would ignore the existence and purpose of that Act; and 7. The transcript shows that all of the evidence was considered and the interest of the appellant were taken into account, in particular in the determination of compensation, and the decision involved no unfairness or inequity notwithstanding the appellant's failure to appear.

The Appeal Hearing

1. The parties were granted leave to be legally represented on the appeal.
2. Mr Komadina did not attend the appeal hearing. He was represented by Mr J Nathan, Counsel, who stated that there had been no express request for Mr Komadina to attend for cross-examination.
3. The respondent and her partner Mark Hodges attended the appeal hearing. The respondent was represented by Mr M Burns, solicitor. The respondent and Mr Hodges gave oral evidence and were cross-examined.
4. At the appeal hearing Mr Komadina's representative sought leave to amend the grounds of appeal to raise an additional ground that the orders were against the weight of the evidence as the contract for the subject works was not between Mr Komadina and the respondent but between Mr Komadina and Mark Hodges. That contention was based on the copy of the signed quotation dated 14 January 2017, listing the work to be done and the price of $5,500 including GST, which was signed by Mr Hodges on 16 January 2017. The application was opposed; however the respondent's representative stated that he could meet it. The Appeal Panel granted leave, it being apparent that the proposed amended ground potentially raised a question of law which the Appeal Panel should deal with; both the respondent and Mr Hodges were present and able to give oral evidence as to the circumstances of the formation of the contract; and that to the extent that their evidence may not be able to be rebutted by oral evidence from the appellant, there was no explanation as to why the appellant had chosen not to attend the appeal hearing.
5. The oral evidence of Ms Kelleher was: 1. She is the owner of the property, and she and Mr Hodges have been in a de facto relationship for 6 years; 2. The quote was in Mr Hodges' name because she had not long before had medical treatment and she asked him on her behalf to get somebody to fix the pool; 3. She was in the house and Mr Komadina came in with Mr Hodges to explain to her what was proposed; 4. Mr Hodges was the main contact, and he paid as she did not have the cash at the time; 5. She understood what was in the quote, and it did not matter to her if the quote was in Mr Hodges' name as he has half the responsibility for the house.
6. Mr Hodges' oral evidence was: 1. He arranged for Mr Komadina to come and give a quote; 2. Mr Komadina explained to him what he was proposing to do, then came upstairs into the house to explain to the respondent because she was the owner of the house, and he signed on her behalf.
7. In oral submissions the appellant's representative accepted that strictly speaking the notices of hearing were valid but on the facts the appellant did not receive them. The appellant maintains a business address where he does not live. He relies on his statement in the witness statement dated 31 August 2017 that the work was done by the fibreglasser engaged by the respondent. There was no indication on the quotation document that Mr Hodges was contracting on behalf of the respondent. The appellant was aware that the respondent was the owner of the house.
8. The respondent's representative submitted that while the fibreglasser was involved, the contract documentation required first that the pool be braced which was not done, which resulted in the need for the rectification work. The appellant's affidavit evidence was that he received the text message of 19 June 2017 about the paperwork for the NCAT hearing; and accordingly, he was on notice that there was something at the Tribunal, and that documents had been delivered to the Pitt Street address. The Tribunal Member at first instance did consider who were the contracting parties, and was satisfied that the respondent was the proper applicant in the proceedings.

Availability of appeal

1. This is an internal appeal pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). The appeal may be brought as of right on a question of law or, with the leave of the Appeal Panel, on other grounds. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act leave to appeal may only be granted under s 80(2)(b) 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).
2. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarised at [71] and [79] as follows: [71] …[I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred… [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 . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred.
3. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). As explained in Collins v Urban at [84], ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

Whether there was an error of law

1. The appellant's claim that he was denied procedural fairness by having orders made against him in his absence raises a question of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69; Italiano v Carbone [2005] NSWCA 177.
2. The Member was satisfied that notice of the hearing was duly served on Mr Komadina. Ultimately in the appeal Mr Komadina's representative did not contest that the notice had been validly sent to Mr Komadina at xx Pitt Street Parramatta, as confirmed by the copy of the hearing notice annexed to the respondent's affidavit. That was the address specified as the address for service in the ASIC searches conducted by the respondent on 4 April and 10 April 2017, both of which show Sam Komadina as the holder of business name We Paint Pools ABN 14 390 845 516. It is still, based on the ASIC extract of 6 October 2017, the appellant's address for service of documents.
3. The Appeal Panel accepts the submission of the respondent that service to that address of notice of the application, notice of the hearing, and the documents and evidence relied upon by Ms Kelleher in her application to the Tribunal, complies with rule 13 of the NCAT Rules. Under s 35 of the Business Names Registration Act, the appellant is obliged to give notice of any change to information recorded in the Business Names Register within 28 days. Whether or not it is correct that the appellant ceased to reside at the Pitt Street address in either 2012 or 2014, or the circumstances in which he no longer resides there, he has maintained that address as his address for service of documents. There is no indication in the documents provided to the Tribunal at first instance that he advised any alternative address. Based on his acceptance that he received the text message of 19 June 2017, the Appeal Panel is satisfied that the appellant was aware of the proceedings before the hearing, and the fact that documents relating to the proceedings had been served. His failure to take steps to retrieve either those documents or any of the notices including the notice dated 12 May 2017 from the Pitt Street address is not explained.
4. Procedural fairness requires that a party understand the case made against them, and have a reasonable opportunity to present their case. The appellant had that opportunity, and cannot complain that the hearing proceeded in his absence, in circumstances where he failed to ensure that he received documents sent to his correct address for service. There was no denial of procedural fairness in the hearing proceeding in the absence of Mr Komadina.
5. The second ground potentially raising a question of law is the amended ground of appeal that the contract was with Mr Hodges, and not Ms Kelleher. The test for determining the identity of contracting parties is an objective one, and requires determination of what a reasonable observer would conclude from the objective evidence of the communications that led to the entry into the contract, together with the background facts known to the parties: Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154. While the quotation dated 14 November 2017 is addressed to Mr Hodges, and signed by him, on the evidence from the respondent and Mr Hodges as to the circumstances in which Mr Hodges arranged for Mr Komadina to come and quote and the respondent's participation in discussion of the work proposed, it was open to the Member to find that Mr Hodges had signed the contract on behalf of his partner. The Appeal Panel is satisfied that there was no error in the Member's finding that the original contract was with Ms Kelleher and that she was accordingly the correct party to the proceedings.

Whether leave to appeal should be granted

1. There being no error of law established, the appellant requires leave to appeal.
2. The appellant submits that the decision was not fair and equitable as it was made in his absence, and that there is significant new evidence, being his witness statement that he had not received the notice of the hearing.
3. Neither submission provides any basis on which leave to appeal should be granted. There was no denial of procedural fairness. As discussed above, the appellant was on notice that there were Tribunal proceedings, and that documents had been served to his address for service. Given his failure to ensure that he received any documents sent to that address, including notice of the hearing, or to retrieve the documents that he knew were there, it cannot be said that there was a failure in the way the matter was conducted or decided that deprived him of a chance that was fairly open of achieving a better outcome than occurred such that there was a substantial miscarriage of justice.
4. The decision of Daley v Flynn [2014] NSWCATAP 79 on which the appellant relied does not assist him. That appeal was against the determination of an application under cl 9 of the Civil and Administrative Tribunal Regulation 2013 (the NCAT Regulation) to set aside earlier orders requiring a building contractor to pay money to a homeowner. The issue on which that appeal turned was whether the Member's finding that the builder's case was adequately put to the Tribunal was open to him, that being a requirement of cl 9(1)(b) of the NCAT Regulation, and not an issue in the present appeal.
5. The amended Notice of Appeal asserts that the decision was against the weight of evidence as the contract was not between the appellant and the respondent. As discussed above, that issue was considered by the Member, and there was no error in his conclusion based on the evidence before him that the respondent was the appropriate party to the Tribunal proceedings.
6. The appellant has not established that there was a failure in the way the matter was conducted or decided which deprived him of a chance that was fairly open of achieving a better outcome than occurred such that there may have been a substantial miscarriage of justice under any of the grounds in cl 12(1) of Sch 4 to the NCAT Act. That conclusion means that it is not necessary to consider whether, in the exercise of discretion, leave to appeal should be granted.

Conclusion

1. No error of law is established, and leave to appeal is refused. The appeal should be dismissed and the stay order made on 6 September 2017 lifted.
2. The appellant did not seek costs of the appeal. The respondent's representative was not ready to deal with any costs application. As discussed with the parties at the hearing, the Appeal Panel provides an opportunity for submissions to be made on costs.

Orders

1. The orders of the Appeal Panel are: 1. Leave to appeal refused. 2. Appeal dismissed. 3. The stay of the operation of order 2 made on 2 August 2017 in HB 17/15866 is lifted. 4. If either party seeks costs of the appeal, leave is granted to file and serve a short written submission on that issue within 14 days of the date of this decision. 5. Leave is granted for the other party to file and serve a short written submission in reply within a further 14 days. 6. Submissions should address the question of whether the Tribunal should dispense with a hearing on the issue of costs, pursuant to s 50 of the Civil and Administrative Tribunal Act 2013.

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. Principal 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: 03 January 2018