Scozza v JIH Building Design Pty Ltd

NCAT Appeal Panel|2023-06-19

The application before the Tribunal

It is appropriate to summarise the application before the Tribunal.
By application filed 4 January 2023, the appellant sought an order that the respondent pay her $14,030.00, being reimbursement in respect of:

the cost of the respondent's feasibility report, $1,925.00;
the cost of the respondent's concept drawings, $2,530.00;
the costs of an arborist report, $1,925.00;
the costs of a surveyor's report, $1,650; and
rental expenses, $6,000.00.

The appellant said that she was entitled to those orders for the following reasons: After having engaged JIH Building Design to do a feasibility study on the block on 19/11/2021 JIH was further engaged to draw concept stage drawings and explore the possibility of council approval for a granny flat with a garage underneath. The decision to further invest in drawings and reports was based on Jason Harbs professional opinion that the desired approval would be likely and within budget. Further to this the process taken was decided upon for its ability to deliver a very prompt indication of the parameters of the build after having discussed with Jason our needs. On 06/07/2022 $2530.00 was transferred to JIH after having been advised this cost in response to an email on 29/06/2022 requesting "as per my conversation with Jason of last week could we please organise a pre concept design for the purpose of a pre DA meeting. It is for the granny flat with garage underneath" As advised by JIH the preparation of this matter required the engagement of other professionals to prepare accompanying reports. In organising and requesting these reports it was reiterated on numerous occasions that there was an urgency and time cost (rental cost) associated with this matter and it was my understanding that the professionals selected were engaged giving consideration to that performance outcome among others. These reports were organised and paid for before having to pursue JIH for progress on getting the matter to a pre DA meeting as originally planned noting that it had already been considerably delayed by this point. After considerable follow up the matter was scheduled for a pre DA meeting in late August. In the lead up to this I had attempted to clarify the procedure, the expectations of me at the meeting and if I would be required to participate in any way beyond spectating. This continued right up until one hour before the scheduled meeting as I had not had response from Jason Harb. It was eventually confirmed by Emily form JIH that I would not be required to do anything however I would be welcomed to ask questions. Upon attending the meeting I believe there were three individuals from council also in attendance. After some awkward 10 minutes or so of waiting for Jason Harb to attend it was decided that my &quotprofessional would not likely be attending and the matter was discussed between ourselves with me blindly asking questions with limited understanding of the process, requirements or otherwise. By conclusion of the meeting it was my understanding that reports, details and elements for consideration were missing from the submission. I am somewhat confident that the plan was submitted without the required garage and that there were some driveway and or parking issues that meant that the garage would never likely be approved and a bushfire requirement that meant the secondary dwelling would never likely be approved. I do not believe that JIH building design provided a service with due care and skill within a reasonable timeframe. As a result of these actions and advice I have incurred costs of $12105.00 for an exercise was futile. A breakdown of the claim is as follows: … (Typographical and other errors as in original)

Primary Decision

It is appropriate to summarise the principal findings and conclusions of the Primary Decision.
As noted, the Tribunal dismissed the application. The Primary Decision commences with the Tribunal recording in a generic way that both parties had filed documents all of which were admitted into evidence subject to weight and relevance. The Tribunal states that each party was given the opportunity to question the other, and that each made oral submissions.
We pause to note that the appellant provided us with a copy of the sound recording of the Tribunal hearing and a transcript. We do not accept that it was ever explained to the parties by the Tribunal that they were entitled to cross-examine each other. That said, the parties did ask questions of each other, and were afforded the opportunity to and did make oral submissions. We note that the appellant has made criticisms of the way in which the hearing was conducted, and we will consider those criticisms below.
The Tribunal then summaries the claim before it: The application relates to consumer claim pursuant to ss.60-62 of the ACL. In essence, the applicant alleges that services provided by the respondent in trade or commerce were not provided with due care and skill; were not fit for purpose; and were not provided with a reasonable period of time. The applicant sought orders for the payment of $14,030.00 being a refund for the services provided together with payment for reports prepared by other consultants and consequential loss (rent expenses). The subject matter of the application concerns the applicant's wish to develop her property to have a granny flat and garage constructed on the property. On or around 19 November [sic - October?] 2021, the applicant engaged the services of the respondent for the purpose of preparing a feasibility study for the proposed development, and further work subject to the outcome of the study. This work was carried out and consideration was paid for the respondent's services.
The Tribunal then states: There was a written contract between the parties dated 20 October 2021. The contract between the parties was split into 3 stages: the first for the feasibility study; the second for design; and the third for planning. It was expressly stated in the contract that certain specialist reports may be required and would be at an additional cost to be paid direct by the applicant to those nominated consultants. The contract did not contain any terms in respect to whether the applicant's plans for the development would be feasible. The feasibility study prepared by the respondent made it clear that the proposal was subject to various reports being obtained by the applicant, such as for bushfire assessment, geotechnical stability, flood and biodiversity, and subject to any additional local council requirements. The applicant proceeded to engage the respondent for the second stage of the project, (which involved design), on or around 20 June 2022. The respondent prepared drawings and forwarded these to the applicant in preparation for a pre-lodgement meeting with local Council.
The Tribunal then refers to a "pre-lodgement assessment process" conducted by the relevant Local Council. The Tribunal records that: The pre-lodgement assessment process concluded on or around 21 September 2022. The applicant was advised by the local Council to obtained various reports, including for bushfire assessment of the site. It is noteworthy that the applicant had already obtained a bushfire report in May 2022 and did not provide this to the respondent for consideration when preparing the concept design.
The Tribunal then notes that subsequent to the pre-lodgement briefing, the applicant contacted NSW Fair Trading and made her application to NCAT, observing that the applicant did not terminate the contract in writing at any time prior to making her application or since, but finding that "it is clear that the contract between the parties is no longer on foot".
The Tribunal then notes that the appellant alleged that the respondent had breaches ss 60, 61 and 62 of the Australian Consumer Law (the ACL). The Tribunal stated: 1. s.60 - I do not find that there is sufficient evidence that the respondent did not carry out it's services with due care and skill. The onus is upon the applicant to prove, on the balance of probabilities, that the standard of services provided by the respondent are less than an equivalent professional or equivalent provider of services exercising reasonable care and skill would have provided. This involves an objective test. The applicant's subjective dissatisfaction with the standard of services provided is insufficient to prove breach of the consumer guarantee. The applicant has not provided sufficient evidence to establish breach. Such evidence may include an expert report to establish that a reasonable person exercising due care and skill would have provided services differently, and if so, a different outcome would have occurred. Ultimately, the evidence goes no higher than the applicant's subjective dissatisfaction with the standard of services and that the local Council pointed to further documents that needed to be obtained to improve the prospects that the local Council would approve a Development Application. 2. s.61 - I do not find that there was sufficient evidence that the services provided by the respondent were not reasonably fit for any purpose or result the consumer expressly or by implication made known to the respondent at or before the date of supply of services. The feasibility study was the first step in a series of steps required to be taken by the applicant in order to determine whether the proposed project could be approved by the local Council. That process involves the pre-lodgement meeting; the lodgement of a Development Application; and the approval of the Development Application. The approval of a Development Application by the local Council involves a number of discretionary considerations and is not a straightforward process. All the necessary information required for the pre-lodgement meeting was prepared by the respondent. The requirements placed on the applicant by council were not matters over which the respondent had control, and in fact were foreshadowed by the respondent as possible in the feasibility study; and 3. s.63 - The applicant has failed to establish on the balance of probabilities that the services the subject of the agreement between the parties were not provided by the respondent within a reasonable time. The services provided by the respondent were carried out within several weeks. Again, there was no expert evidence provided that a provider of equivalent services would have provided any specified services more quickly; or there was an unreasonably delay; or that the delay affected the outcome. While I accept that the applicant followed up with the respondent via phone and email, I accept the oral evidence of the respondent regarding ill health and find that the services were provided well within the time required for the pre-lodgement meeting. The test is not one of subjective dissatisfaction. (Typographical and other errors as in original).
Finally, the Tribunal states that "For the sake of completeness" it had also considered whether the appellant had established breach of any term (express or implied) of the contract, concluding that "[n]o such breach is established".

The Notice of Appeal

In summary, the appellant submits that the Decision was not fair and equitable and against the weight of the evidence. The principal basis for this submission is based on the Tribunal's finding that there was a written contract between the parties dated 20 October 2021.
In addition, she submits that she was denied procedural fairness by the member conducting the hearing.
In the Notice of Appeal, the appellant submits (for convenience we have added paragraph numbers): [1] The basis of the decision appears to have been arrived at based on a "contract" presented by the respondant. This document was an unsigned cost agreement that had never been agreed upon by the applicant. Verbal evidence was provided of such and within the (documents provided there was significant evidence indicating that the contract, relvant to the calim pursuant to ss.60-62 of the ACL, was in fact a verbal contract with a very different scope than the second stage of the unsigned cost agreement relied upon by the tribunal. It had been raised during the hearing that the matter being discussed was indeed not the contract" presented, or becoming relied upon, at which time the member jumped in with a question along the lines of "did you cancel it?" to which I responded no and attempted to again refute the agreement being assesed as the matter in discussion. I was not offered further opportunity for oral evidence or to direct the conversation to physical evidence, present in the documents provided, to demonstrate that the "contract" was now being misrepresented by the respondant. [2] Aside from the cost agreement that was now being relied upon there was a plethora of evidence presented demonstrating the true nature of the agrrement which was seemingly disregarded. [3] On the whole the decision was against the weight of the evidence and neither the decision nor the hearing was fair and equitable. [4] The respondants oral evidence was taken at face value yet, as the applicant, on each occasion I attemted to provide oral evidence or indeed even direct attention to written evidence provided, in accordance with the tribunals request, it was scrutinised or blatantly disregarded. [5] The proceeding were very rushed from the commencement and priorty of the member seemed to be adhering to a time frame rather than gathering better understanding or applying relevant legislation. [6] Second to the matter of the incorrectly identified contract it seems incorrect that a professional requested to specifically and exclusively prepare and present to council at a Council Prelodgement meeting could be deemed as having provided a service with due care and skill and services fit for purpose when he failed to identify and supply the required documents for review and further failed to attend that very meeting without notice given to the consumer or council. [7] A sound recording was requested from NCAT Wollongong more than seven days ago however had not yet been made available. Further reference can and will be made to the recoding as it becomes available. (Typographical and other errors as in original)
As to the respondent's evidence the appellant says: What evidence did the other party give? What documents did the other party show the Tribunal? The [respondent] provided evidence in a format and timeframe outside of the directions given by the tribunal. No evidence other than that provided in my file was relied apon by the respondant however their was one item of evidence that was present in both files yet misrepresented by the respondent. (Typographical and other errors as in original)
In response to the questions "What evidence (again, paragraph numbers added for ease of reference) should the Tribunal have given more weight to? Why?", the appellant states: [1] The extensive evidence in the file that indicated the matter in dispute was not subject to the rejected unsigned cost agreement that the respondant presented as a contract. The misreprested contract became the basis of the decison. [2] The numerous occurences of oral evidence and direction towards physical evidence that the point of contention became differing from the original application, as being guided and mislead by the respondent. This rushing through evidence and failing to identify primary issues has resulted in a decision being made against the weight of evidence an in turn resulting in a decision that was not fair and equitable. [3] The admission by the respondant that he indeed did not attend the Council meeting, failed to request, provide or both reports required by council along with the admission that he failed to notify any part of his illness other than retrospectively. This evidence demostrates that the respondant did fail to meet consumer guarantees as provided by ss.60-62of the ACL. [4] The admission by the respondant that he failed to meet each of the parameters of the verbal agreement, inclusive of presenting to council a garage, presenting any documentation resonably expected as required to ascertain what could be achieved on the block and was well outside of the quoted timeframes. These admissions were overcome by presenting terms and fine print of a misreprented "contract" that indeed even if applicable should not of given him rights to neglect his obligations under the ACL. This evidence demostrates that the respondant did fail to meet consumer guarantees as provided by ss.60-62 of the ACL. (Typographical and other errors as in original)

The appellant's written submissions

These matters were amplified somewhat in the appellant's written submission of 25 May 2023, in which additional issues were included. We summarise the concerns of the appellant as follows: 1. the Tribunal erred in its finding that there was a written contract between the parties dated 20 October 2021. The appellant says that: 1. there is considerable evidence within the original submission that can refute the "contract" of October 2021 was entered into and significant evidence of a verbal contract being entered into in June 2022 with financial consideration being paid in July 2022; 2. the respondent was not required to substantiate the claim that the unsigned document represented a contract that had been entered into and the applicant was not given the opportunity to present evidence to refute the claim. Presentation and refuting of the "contract" can be found in the sound recordings and transcript in numerous places, most notably: 1. from 45.36 minutes of the sound recording, the respondent can be found making the false claim that the cost agreement is the contract, applicant refutes, member fails to substantiate the respondents claim. 2. from 58.41 minutes of the sound recording, the member asks, "and is that part of stage 2?" seemingly referring to "the contract", respondent misleads, applicant refutes the notion of the works falling under the contract being referred to, member fails to allow applicant to present evidence held in original submission. 1. the appellant was denied procedural fairness in that: 1. the respondent was allowed to provide verbal claims and evidence with further substantiation required rarely if at all. This occurred despite the respondent's claims "regularly being false or contradictory to evidence, his own submissions and even his own claims". The Member can be heard noting this behaviour as early as 13.55 minutes into the sound recording yet continued to rely on the respondent's unsubstantiated submissions; 2. the appellant was not given a reasonable opportunity to question the respondent and when questioning the respondent the Member would often answer (incorrectly) on behalf of the respondent; 3. on more than 20 occasions the Member made statements or asked questions of the respondent that the appellant considered to be suggestive and or leading and at times incorrect. The respondent can then commonly be heard replying "exactly" and then crafting a false claim or response around each such opportunity; 4. the appellant was not given a fair opportunity to present her case as: 1. when she attempted to give her overview, (commencing at 8.24 of the sound recording transcription) she was interrupted within one minute to be questioned about an item claimed in costs; 2. this questioning and cost claim related discussion lasted for some 3 minutes, included 12 interruptions and culminated with the respondent being asked to comment, in circumstances where the appellant was never offered the opportunity to return to her case overview and can still be heard attempting to return to her overview nearly an hour later; 3. she was interrupted more than 80 times during the hearing by the Member despite rarely being given the opportunity to speak beyond 25 seconds. The appellant says that the treatment of the respondent varied greatly from this standard; 4. the appellant was "peppered" with questions so extensively that on more than 40 occasions she was asked questions that she was not given the opportunity to answer, again in stark contrast to the treatment of, and the opportunity provided for, the respondent. 1. in relation to the breaches of ss 60 to 62 of the ACL, the Member has given incorrect consideration to an incorrect scope of works and timeframes and has accepted false and misleading representations of the respondent.
The appellant amplified these matters in her oral submissions.

Reply to Appeal

In its Reply to Appeal the respondent states: The Appellant has applied for the appeal as a "second go" due to failing to substantiate her initial claims in GEN 23/00232. The appellant presents to the appeal application new contractual disputes not mentioned nor presented in the evidence of Hearing proceedings GEN 23/00232. JIH provided evidence that those terms were verbally accepted by the applicant and accordingly formed a part of the agreement between JIH and the applicant. JIH provided evidence that the appellant gave JIH instructions to proceed after receiving JIH's Fee Proposal. Notably, clause 2.1 of the terms indicates that the applicant can accept the terms if the applicant makes an order for JIH's services or accepts JIH's services. JIH provided evidence that the appellant read the Fee Proposal, pointing to the Fee Proposal which stipulates that a concept design will be completed within 14 working days after formulating a brief. this adds weight the appellant received and read the Fee Proposal. JIH provided evidence that the cost and scope to undertake service were particularised within the fee proposal.

Submissions

In its written submissions, the respondent submitted: Mrs Scozza has been granted leave on a question of law to enable her to establish grounds of appeal. We urge the Appeals court to dismiss the application 2023/00123862 due to breaches within guidelines for appeal. Breaches notably, 1. New evidence of a scope of works generated by phone call between JIH and Mrs Scozza. Mrs Scozza now argues a verbal contract was entered into with JIH. One that differs from the fee proposal provided by JIH. 2. Such particulars of this said verbal agreement have not been provided to me. I am therefore not given an opportunity to respond accordingly to such claims. 3. Mrs Scozza had not identified the particulars of this verbal agreement in her original evidence, nor has she established a time reference within the sound recording of her attempt to correct the tribunal member of the agreed scope. I am therefore not given an opportunity to respond accordingly to such claims. 4. Mrs Scozza has identified the matter of the unsigned fee proposal contained within my submitted evidence in GEN 23/00232 refer to Annexure A page 7 and on these findings built a frivolous appeal attempting a "second go". I reiterate item 1, c responses submitted by JIH within the original GEN23/00232 proceedings. (Annexure A page 7) In my GEN23/00232 evidence (annexure A), the matter of an unsigned fee proposal was included to satisfy the tribunal that the terms and conditions formed a formal agreement between JIH and Mrs Scozza. The itemised services contained within the fee proposal was formulated and included in the proposal as staged services to suit Mrs Scozza development timeline. Contrary to Mrs Scozza grounds for appeal that a different scope of works was agreed upon, I highlight in annexure C from page 20 the appellants GEN23/00232 application documents. Here lies the evidence that Mrs Scozza received the fee proposal and highlighted stage 1 scope of works. On the 21st October 2021 JIH received payment for stage 1 in the amount shown in the fee proposal. (Annexure C page 25) Furthermore, an amount of $2530 equivalent to stage 2 was later paid to JIH for granny flat concept design. This payment was received on the 6th July 2022. (Annexure C page 25)
Mr Harb, on behalf of the respondent, amplified these matters in oral submissions.

The appellant was denied procedural fairness

As noted, for the reasons set out above, the appellant submits that she was denied procedural fairness at the Tribunal hearing.
In Dubow v Liddell [2023] NSWCATAP 93 the Appeal Panel recently stated: 22. Occasionally tribunal members and judges excessively intervene in proceedings and do so to such a degree that procedural unfairness may arise or an application may be made to the member or judge to disqualify themselves on the ground of apprehended bias. In this case only the former has been alleged. 23. The most recent examination of this issue in civil cases was in Manly Fast Ferry Pty Ltd v Wehbe [2021] NSWCA 67. Simpson AJA summarised the central matters involved at [168] wherein her Honour said: "[168] Complaints of procedural unfairness caused by excessive judicial intervention are by no means a recent phenomenon. Frequently, but not always, the issue arises in relation to conviction after a criminal trial by jury. The principles stated in those cases are adaptable to civil, non-jury, trials. Analysis of the authorities suggests to me that the ground depends on establishing, as a matter of objective reality rather than subjective perception, that the judicial intervention had an actual impact on the trial. The means by which such an impact might be evidenced have been variously stated, but seem to me to be compendiously expressed as: ● the impediment or inhibition of the presentation of a party's case; ● interference with the ability of a witness or witnesses to give an account of the relevant events; ● (in relation to non-jury trials) deflection of the judge from making an objective assessment of the evidence, the issues, and/or the arguments presented by counsel." 39. Not all of those matters were put by Ms Dubow, but we do not agree with her submission that there was excessive intervention by the Member. 40. We have read the transcript of the hearing and the Member did not intervene in any way which impeded or inhibited the presentation of Ms Dubow's case, did not interfere with her ability to give an account of the relevant events and the Member's interventions did not deflect her from making an objective assessment of the evidence, the issues, and/or the arguments presented. 41. It must not be overlooked that: (1) Mr Terry Liddell was not legally represented; (2) the Tribunal is obliged to conduct itself in such a way as to facilitate the just, quick and cheap resolution of the real issues in the proceedings - s 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"); (3) the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings- s 36(4) of the NCAT Act; (4) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice - s 38(2) of the NCAT Act; and (5) the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms - s 38(4) of the NCAT Act; (6) is not expected to conduct its proceedings with the formality of a court of law - Moloney v Taylor [2016] NSWCA 199 per the Court at [30]; and (7) 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 - s 38(6) of the NCAT Act.
Here the appellant submits that her presentation of her case was interfered with, excessively, by the Member.
We disagree.
We note at the outset that the appellant did not file any witness statement with the Tribunal, despite directions to do so. Here we pause to note that the appellant told us at the appeal hearing that she had never been directed to file a statement or affidavit.
That is not correct. In the directions made on 24 January 2023, both parties were directed as follows: All evidence from a party's witness(es) in support of that party(ies) must be in the form of a statement, statutory declaration, affidavit or expert report as appropriate.
The appellant had however provided a summary form of her version of events in her application (set out above) and in a chronology. It is the practice of some members of the Tribunal to invite a party (having been sworn or affirmed) to adopt the contents of their application or their chronology as their version of events. On this occasion the Member did not do so, with the result that neither document was adopted by the appellant.
The point of this observation is the lack of a witness statement may partly explain the number of questions the Member made of the appellant during the course of the hearing.
The appellant was correct in submitting that she was interrupted by the Member of many occasions, but some of these interruptions were justified (such as when interrupted to administer an affirmation). And we accept that some criticism of the Member could be made about the manner in which the hearing was conducted, in that the hearing appeared to be somewhat disorganised, with the Member jumping from issue to issue.
In addition, the appellant was at times being confronted with both Mr Harb and the Member addressing her. Page 72 of the transcript records: Appellant … I gave you a call and Mr Harb Yes you did oh, God Appellant A bushfire consultant said I can't I can't do this [inaudible] Mr Harb It doesn't say that. Tribunal It doesn't say that. Mr Harb It doesn't say that. …
The appellant was also confronted with Mr Harb regularly laughing at her oral submissions.
While we accept that the hearing was not structured in an orderly way, and the Member permitted both the appellant and Mr Harb to talk over each other rather continuously, in our view it could not be said that the Member impeded or inhibited the appellant's presentation of her case, or interfered with the appellant's ability to presentation her case to such a degree that the appellant was denied procedural fairness. The appellant is articulate and we consider that she was able to present her views to the Tribunal.
This ground of appeal is dismissed.

The adequacy of the reasons

The principal basis for this submission is based on the Tribunal's finding that there was a written contract between the parties dated 20 October 2021.
We pause to note that the Tribunal does not state whether it is summarising the evidence, or making findings of fact. We have assumed the latter.
It is to be noted that the Tribunal does not set out, even in summary form, the evidence it accepted and relied on in reaching that conclusion, nor does the Tribunal set out any other relevant terms, such as the contract price, when the contract works were to commence and when they were to conclude. Nor does the Tribunal analyse how the contract was formed by reference to the principles of offer and acceptance, even though the Tribunal referred to those principles during the course of the hearing.
The Tribunal stated that "There was a written contract between the parties dated 20 October 2021".
That finding was incorrect. The evidence before the Tribunal was that a quotation was provided to the appellant by Mr Harb on that date (the Quotation). The Quotation relevantly stated: Design, Develop & Coordination of proposed granny flat located at [XX] Bulli. Stage 1 - Feasibility Report 1,750.00 Report includes 10.7 Planning Certificate & DBYD Stage 2 - Concept Design 2,300.00 Stage 3 - DA/CC Drawing and Documentation 2,400.00 DA Coordination 900.00 BASIX Report 200.00 BASIX Certificate 50.00 Subtotal 7,600.00 GST 760.00 TOTAL 8,355.00 Be informed due to the need to program our work we will commence the preliminary stage approximately 2 working days After the acceptance of the fee proposal. A concept design will be completed within 14 workings days after formulating a brief. Further to the accepted design a further 15 working days is required to finalise the DA plans & all third-party plans & reports. Additional works including request for information (RFI), further revisions or amendments to finalised plans will be at a cost of $95 + GST per hour, with a minimum of a 2hr charge, per day. We trust this fee proposal meets your expectations however should you wish to discuss or clarify any matters further, please do not hesitate to contact me on 0431 329 181. We look forward to your reply.
Attached to the Quotation was a document titled "ACCEPTANCE OF FEE PROPOSAL".
The "ACCEPTANCE OF FEE PROPOSAL" was not signed by the appellant.
Also attached to the Quotation was a document titled "JIH Building Design Pty Ltd - Terms and Conditions of Trade". Clause 2.1 states: 2. Acceptance 2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts, Services provided by JIH. 2.2 These terms and conditions may only be amended with JIH's consent in writing …
The Quotation did not state that any deposit was required. However, the unsigned acceptance page does say that "[d]ue to the nature of the project we kindly request a deposit which amounts to all services prior & inclusive of concept design". It is common ground that on 21 October 2022 the appellant paid the respondent $1,750.00.
We can see from the transcript that there was significant discussion between the Tribunal and both parties about the terms of the contract, and whether there was more than one contract.
Mr Harb told the Tribunal that there was "just one contract" (T at 51), but also indicated that "each stage is a separate contract" (T at 53). The appellant stated that she "discontinued that original contract", which "stopped … after the feasibility study (T at 63); that she did not "enter the whole contract" (T at 64) because that required a 50% deposit which was never paid (T at 65); but she did pay for Stages 1 and 2 (T at 66); and had a separate quote and an agreement with respect to Stage 2 (T at 66).
Further to this, the respondent states in its submissions to the Appeal Panel that it provided evidence to the Tribunal that contractual terms were verbally accepted by the appellant and formed a part of the contract between the parties.
And, as noted above, in the Notice of Appeal that appellant states that she gave evidence at the hearing that the actual contract (which we infer was partly written and partly oral) had a very different scope to that set out in the Quotation.
None of these matters are reflected in the Primary Decision.
The application before the Tribunal was a consumer claim. It is axiomatic that the terms of the contract between the parties are fundamental to any determination by the Tribunal of breaches of consumer guarantees provided for the Australian Consumer Law.
A similar issue was considered recently by the Appeal Panel in Hockley-Brown v Metford Road Pty Ltd t/as Morpeth Gardens Village [2023] NSWCATAP 151 where the Appeal Panel stated: 43. It is essential, where reasons are required or otherwise provided, to expose the reasons for resolving a point critical to the contest between the parties but the manner in which that obligation is discharged varies according to the nature of the jurisdiction being exercised, the court or tribunal exercising it and the subject matter being determined: Soulemezis v Dudley (Holdings) PL (1987) 10 NSWLR 247 (CA) at 259, 270-272, 280-281; Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 at [40]; Wainohu v NSW (2011) 243 CLR 181 at [58]; NSW Land and Housing Corp v Orr (2019) 100 NSWLR 578, [2019] NSWCA 231 at [65]-[77]; see also s 62(3) of the NCAT Act which sets out the content when reasons are requested. 44. A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to engage with the case put by a party. 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). 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 because the reasons are thereby rendered inadequate: 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]. 45. In NSW Land and Housing Corp v Orr (2019) 100 NSWLR 578, [2019] NSWCA 231 at [65]-[77], the Court of Appeal made it clear that, while the degree of complexity required for reasons (including reference to the evidence) differs according to the nature of the proceeding and the decision-maker, there is a "minimum acceptable standard" with "certain minimum characteristics" that requires the decision-maker to expose why it reached the decision it did, so that a losing party, in particular, has the basis to understand why it lost, if there is an avenue for challenge and to enable an appellate body to understand and assess whether the decision was correct…
As was stated by Chief Justice of NSW in NSW Land and Housing Corporation v Orr [2019] NSWCA 231 at [71]: 71. … even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made.
In our view, the Tribunal's reasons relating to its conclusion to its finding that there was a written contract between the parties dated 20 October 2021 are inadequate. This raises a question of law in respect of which the Tribunal has made an error.

Conclusion

Section 81 of the NCAT Act provides: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
In our view, the appropriate course is that the matter needs to be redetermined by the Tribunal, differently constituted.
While it will be a matter for the Tribunal whether or not further evidence is allowed at the new hearing, our view is that the parties ought to be limited to the evidence which was before the Tribunal at the hearing on 16 March 2023.

Orders

The Appeal Panel orders: 1. The appeal is allowed. 2. Order (1) made on 20 March 2023 in matter GEN 23/000232 is set aside. 3. Remit matter GEN 23/000232 to the Consumer and Commercial Division for hearing by a differently constituted Tribunal on such evidence as is permitted by the Tribunal.

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

Amendments 30 June 2023 - Typographical errors amended. 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: 30 June 2023

A question of law

In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing a question of law giving rise to an appeal as of right. These include, but are not limited to: 1. whether there has been a failure to provide proper reasons; 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 (that is, mandatory) considerations; 6. whether the Tribunal took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; 8. whether the decision is so unreasonable that no reasonable decision-maker would make it.
In Prendergast, the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).
As will be seen, we undertook that exercise, and explained to the parties at the appeal hearing that we thought that the appellant had raised two questions of law; namely that: 1. she was denied procedural fairness; and 2. the Tribunal's reasons for its finding that that there was a written contract between the parties dated 20 October 2021 were inadequate.
This second ground overlaps with the appellant's claim that the Primary Decision, in so far as the Tribunal found that there was a written contract between the parties dated 20 October 2021, was against the weight of the evidence.

Leave to appeal

Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The principles to be applied by an Appeal Panel in determining whether leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: 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.
Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

(2019) 100 NSWLR 578

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (19)