Shokrgozar v Abouloukme

Shokrgozar v Abouloukme - [2017] NSWCATAP 232 - NSWCATAP 2017 case summary — Zoe

[3]

The Tribunal's Reasons

A copy of the eBay advertisement was tendered in evidence. That advertisement, in two places, referred to "Premium Light Travertine tiles". It contained a photograph of a light brown tile.
The Gumtree advertisement was not tendered in evidence as it had been removed from the internet site. The Tribunal accepted the respondents' oral evidence that the Gumtree advertisement was substantially the same as the eBay advertisement. That is, the Tribunal accepted that the Gumtree advertisement advertised light brown premium tiles.
The Tribunal accepted the respondents' evidence that the sample tile they purchased from the appellant was of a light brown colour.
The Tribunal accepted the respondents' evidence that they ordered a quantity of the tiles advertised on Gumtree, namely, light brown premium tiles.
The Tribunal found that the tiles supplied in the last three of the six crates supplied did not correspond with the description provided in the eBay or Gumtree advertisements, and did not accord with the sample tile supplied by the appellant. That was because the tiles were either a darker colour, or of an inferior quality, to the advertised and sample tiles. The Tribunal found that the tiles in those three crates did not correspond with the tiles the respondents had ordered from the appellant.
The Tribunal found, on the basis of those facts, that the appellant had breached the consumer guarantees provided by ss 56(1) and 57(1) of the ACL.
Those provisions are in the following terms: 56 Guarantee relating to the supply of goods by description (1) If: (a) a person supplies, in trade or commerce, goods by description to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods correspond with the description. (2) A supply of goods is not prevented from being a supply by description only because, having been exposed for sale or hire, they are selected by the consumer. (3) If goods are supplied by description as well as by reference to a sample or demonstration model, the guarantees in this section and in section 57 both apply. 57 Guarantees relating to the supply of goods by sample or demonstration model (1) If: (a) a person supplies, in trade or commerce, goods to a consumer by reference to a sample or demonstration model; and (b) the supply does not occur by way of sale by auction; there is a guarantee that: (c) the goods correspond with the sample or demonstration model in quality, state or condition; and (d) if the goods are supplied by reference to a sample - the consumer will have a reasonable opportunity to compare the goods with the sample; and (e) the goods are free from any defect that: (i) would not be apparent on reasonable examination of the sample or demonstration model; and (ii) would cause the goods not to be of acceptable quality. (2) If goods are supplied by reference to a sample or demonstration model as well as by description, the guarantees in section 56 and in this section both apply.
The Tribunal rejected the appellant's defence that there was no breach of those provisions because of the terms and conditions of supply set out in the appellant's invoice or quote which the first respondent had signed (assuming they were terms and conditions of the contract [1] ).
Clause 2 of those terms and conditions said: "Marble, travertine, Limestone, Onyx, Granite are Natural Products and Variation in colour, Veining must be expected, (the appellant) shall not be liable for any of such variation that may occur." (sic)
The Tribunal held that clause 2, on its proper interpretation, concerned minor variations in colour and grain which would be expected to occur in natural stone. The Tribunal held that this term did not encompass the "vastly different" colour and quality of the incorrect tiles.
Against the event it was wrong in that regard, the Tribunal held that, if construed so as "to allow the respondent to supply tiles of an entirely different colour or quality to that ordered by a customer", clause 2 would be inconsistent with the consumer guarantees provided in ss 56 and 57 of the ACL and, accordingly, void pursuant to s 64 of the ACL.
Section 64 of the ACL provides: 64 Guarantees not to be excluded etc. by contract (1) A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying: (a) the application of all or any of the provisions of this Division; or (b) the exercise of a right conferred by such a provision; or (c) any liability of a person for a failure to comply with a guarantee that applies under this Division to a supply of goods or services. (2) A term of a contract is not taken, for the purposes of this section, to exclude, restrict or modify the application of a provision of this Division unless the term does so expressly or is inconsistent with the provision.
In those circumstances, the Tribunal further found that the appellant had refused to remedy the breach with the consequence, pursuant to s 259(2)(b) of the ACL, that the respondents were entitled to have the failure remedied and, by action against the appellant, to recover all reasonable costs incurred by the respondents in having the failure remedied.

[5]

An Adjournment Application

During the appellant's oral submissions, the Panel drew to his attention that some of his Grounds of Appeal raised questions other than questions of law. The raising of those grounds in the circumstances of this case had two consequences.
First, leave to appeal was required if the appellant wished to raise any ground of appeal which involved something other than a question of law. [2]
Second, the appellant would have needed to have lodged with the Tribunal, and provide to the respondent, before the hearing of his appeal, all the evidence provided to the Tribunal below on which he intended to rely, the sound recording of the hearing at first instance and a typed copy of the relevant parts of that sound recording (the "evidence below").
On 19 September 2017, the Tribunal had directed the appellant to lodge and serve the evidence below by 10 October 2017. He did not comply with that direction by that date or at all.
The appellant applied for an adjournment so that he could belatedly comply with that direction. The respondents opposed that adjournment application.
As mentioned earlier, the appellant said that he didn't appreciate that this was an appeal as distinct from being a second hearing. He said that he had probably read the NCAT Guideline 1: Internal Appeals (March 2016), published on the Tribunal's website.
That Guideline says, amongst other things: 3. On an internal appeal from a final decision, the Appeal Panel can consider whether the Tribunal which originally heard the proceedings made an error of law. The Appeal Panel may also consider, if it gives permission or 'leave', whether any other error was made in reaching the original decision. If there has been an error of law or the Appeal Panel gives leave and finds that there has been any other error, orders are made to correct the position. 4. Generally, an appeal is not an opportunity to have a second go at a hearing. 5. Parties to an appeal are not usually allowed to rely on evidence that was not given to the Tribunal at the original hearing.
The appellant initially said that he was unaware of the direction made for the lodging and service of the evidence below. This statement was not correct. The appellant had annexed a copy of the directions made on 19 September to his submissions, so it was clear that he had received them and understood they were relevant to his appeal. When this was raised with him the appellant then said that he had not understood the directions. He said that he had not asked anyone to explain them to him.
The respondents submitted that the appellant had had ample opportunity to prepare for his appeal, they had already suffered substantial cost, inconvenience and stress in relation to the proceedings, and the appellant had failed to appear at the tribunal on other occasions.
Section 36(1) of the NCAT Act provides that the guiding principle for the Act, and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
Section 36(3) provides that parties to proceedings have a statutory duty to cooperate with the Tribunal to give effect to that guiding principle and, for that purpose, to comply with the directions of the Tribunal.
Section 36(4) provides that 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 proportional to the importance and complexity of the subject matter of the proceedings.
The High Court discussed the exercise of discretions such as allowance of amendments to pleadings and adjournments in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175.
At [97] their Honours said: "The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost."
At [100] their Honours said: "The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted."
We rejected the adjournment application for the following reasons.
The appellant's prospects of successfully appealing the decision of the Tribunal below, or obtaining leave to appeal where it was needed, once the evidence below had been obtained, were very poor in the circumstances of this case. We shall expand on this where relevant when considering the grounds of appeal.
These proceedings involve the sum of $3,220. That is not a large sum when considering the cost to the parties and to the Tribunal in adjourning the hearing of this appeal and allocating a future date for hearing.
It seems to us that the cost to the parties and to the Tribunal of an adjournment, where that adjournment would be most unlikely to alter the outcome, is out of proportion to the importance and complexity of the subject matter of this appeal. To adjourn this appeal would not achieve the objective of the timely disposal of the proceedings at an affordable cost.
The appellant was aware of the directions made. We have some doubt whether he did not understand the directions as they are reasonably clear. We also recognise the strain the litigation has imposed on the respondents, a factor which the High Court held in AON may be taken into account.
In all of those circumstances, it seems to us that the justice of the case was in favour of rejecting the application.

[6]

Ground 1

Ground 1 says that the copy of the eBay advertisement tendered in evidence by the respondents was not proof of the respondents' claim.
The appellant explained this ground by saying that he had not received a copy of the eBay advertisement before the hearing and that the eBay advertisement was for a different product at a different price. The appellant argued, therefore, that the copy of the eBay advertisement tendered in evidence could not be considered as proof of the respondents' claim.
This ground alleges an error of fact and not law. Accordingly, the appellant would require leave to appeal in order to argue this ground of appeal.
Be that as it may, this ground would fail in any event because the Tribunal accepted the respondents' oral evidence that the Gumtree advertisement was substantially the same as the eBay advertisement. Although the Tribunal did not expressly identify which part of the two advertisements were substantially the same, it is clear that the Tribunal had in mind the description of the tiles as being light brown premium tiles.
Therefore, the eBay advertisement is proof, because the Tribunal accepted the respondents' oral evidence, that the Gumtree advertisement advertised light brown premium tiles.
Assuming this is correct, it does not matter whether the appellant received a copy of the eBay advertisement before the hearing. The appellant does not dispute that it was his advertisement, and it was admitted into evidence.
This ground would also fail because the Tribunal accepted the respondents' evidence that they had, during their conversation with him, confirmed with the appellant that they wished to purchase light brown premium tiles.
The Tribunal also found that there had been a supply of goods by reference to a sample, and the three crates of incorrect tiles subsequently supplied did not correspond with that sample.
Therefore, even if the eBay advertisement was put aside, the respondents would still have won their case against the appellant.
We refuse leave to appeal on Ground 1.

[7]

Ground 2

Ground 2 says that clause 2 of the terms and conditions excluded the respondents' claim in relation to two of the three crates of incorrect tiles.
This ground raises a question or questions of law which the appellant has a right to argue without the need to seek leave to do so.
In this case, the questions of law are, first, whether the Tribunal correctly construed clause 2 as not allowing the respondent to supply tiles of an entirely different colour or quality (construction of contracts is a question of law [3] ) and secondly, if clause 2 did allow the respondent to supply tiles of an entirely different colour or quality, whether the primary fact found (the terms of clause 2) were within or outside a statutory test, being s 64 of the ACL (the terms of which we have set out above). [4]
No submissions were made by the appellant in support of this ground.
The questions to be addressed are, whether the Tribunal's construction of clause 2 is correct and, if not, whether clause 2 purports to exclude, restrict or modify, or is inconsistent with, s 56 or s 57 of the ACL.
Section 56 of the ACL provided a guarantee that the tiles supplied would correspond with the description by which they were sold. The tiles were described as light brown premium tiles. Section 57 of the ACL provided a guarantee that the tiles supplied would correspond with the sample provided. The sample was a light brown premium tile.
The Tribunal found that the two of the three crates of incorrect tiles were of a "vastly different" colour, and so those tiles did not conform to the description in the advertisements, and did not correspond with the sample. In other words, the incorrect tiles were not "variations" of the tiles described or variations from the sample tile, but were wholly different.
The Tribunal held that clause 2 should not be interpreted so as to permit the supply of tiles of a "vastly different colour or quality to that ordered by the consumer". We agree with this construction of clause 2.
The ordinary meaning of the word "variation" is deviation, divergence, departure or fluctuation. A variation is a change or slight difference in condition, amount, or level, typically within certain limits. Put another way, a variation is a different or distinct form or version of something.
On this basis alone ground 2 must fail. Clause 2 is directed to such slight variations in colour as would be expected in natural stone. The supply of tiles including such slight variations in colour would not fall foul of the guarantees provided in ss 56 and 57.
Consequently, as the Tribunal held, clause 2 did not purport to exclude, restrict or modify the appellant's obligation to supply tiles that corresponded with the description by which they were sold and did not purport to exclude, restrict or modify the appellant's obligation to supply tiles that matched the sample which had been provided.
Clause 2 says that the appellant shall not be liable for any variation in colour that may occur. The appellant's contention is that even if goods were supplied by description (as described in the eBay and Gumtree advertisements), or supplied by reference to a sample, any variation in colour in the tiles supplied, no matter how significant, from what was described or the appearance of the sample, would be excused by reason of clause 2.
The appellant expressly argued that clause 2 excluded his liability for supplying tiles which did not fall within the description "light brown premium tiles", and which did not correspond with the light brown premium sample tile he had sold to them. In other words, the appellant's necessary position is that clause 2 excluded the guarantees provided by ss 56 and 57.
As noted above, the Tribunal, in our view correctly, rejected the appellant's construction of clause 2. However, were the appellant's construction of clause 2 to be accepted, it would follow that the clause does purport to exclude the guarantees provided by ss 56 and 57, or at the least would be inconsistent with those guarantees. As such, if clause 2 were to be construed in the manner suggested by the appellant, the clause would be rendered void by s 64 of the ACL.
In this case, we can see no error in the Tribunal's finding that clause 2, if construed so as to permit the appellant "to supply tiles of an entirely different colour or quality to that ordered by the customer", would have been inconsistent with the consumer guarantees and therefore rendered void pursuant to s 64 of the ACL.
We reject Ground 2.

[8]

Ground 3

Ground 3 says that the sample sold to the respondents consisted of seven tiles (and not just one tile), and some of those seven tiles were dark tiles.
This ground alleges an error of fact and not law. Accordingly, the appellant would require leave to appeal in order to argue this ground of appeal.
Presumably the appellant would argue that the finding that one tile was sold as a sample, and was a light brown tile, was against the weight of evidence. If so, the appellant would need to have lodged with the Tribunal and served on the respondent the evidence below. He had not done so. Therefore, the ground could not have succeeded because the evidence below had not been provided.
In any event, we were not persuaded there were any reasonable prospects of this ground succeeding even if an adjournment was allowed so that the evidence below could be lodged and served. That is for three reasons.
First, the Tribunal accepted the respondents' oral evidence that one tile was sold to them as a sample, and that it was a light brown colour. It is apparent that that acceptance was partly based on the respondents' demeanour whilst giving evidence. In those circumstances, the appellant would need to demonstrate that the finding by the Tribunal was glaringly improbable, or contrary to incontrovertible evidence, uncontested testimony or compelling inferences in the case, [5] all of which is a heavy burden.
Second, and perhaps alternatively, the appellant would need to demonstrate that he had been deprived of a significant possibility, or a chance which was fairly open, that the evidence, in its totality, preponderated so strongly against the conclusion found by the Tribunal that the conclusion was not one that a reasonable tribunal member could have reached. [6]
That would seem very doubtful in light of the acceptance by the Tribunal of the respondents' evidence, the copy of the eBay advertisement which only referred to light brown tiles, in both words and in a photograph, the respondents' immediate complaints on discovering the incorrect tiles, the rejection of the appellant's evidence, the lack of any corroborative evidence to support the appellant's assertion that seven tiles, some of which were dark, were included in the sample and the inherent unlikelihood that a purchaser of tiles would wish to lay both light and dark brown tiles in the same areas.
Third, as was held in Collins v Urban [2014] NSWCATAP 17 at [84], leave to appeal on grounds other than an error of law is only ordinarily granted in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 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.
This ground does not raise any issue of principle or question of public importance. In light of the matters we have adverted to earlier, there is no indication of any error that is plain and readily apparent, a factual error that was unreasonably arrived at and clearly mistaken, or that the Tribunal went about the fact finding process in an unorthodox manner.
We refuse leave to appeal on Ground 3.

[9]

Ground 4

Ground 4 says that the Tribunal erred in finding that two of the three crates of "incorrect tiles" contained dark tiles.
This ground alleges an error of fact and not law. Accordingly, the appellant would require leave to appeal in order to argue this ground of appeal. Further, when making submissions about this ground, the appellant spoke of what he says was the evidence before the Tribunal, the appellant, in substance, was saying that the finding was against the weight of evidence. As mentioned earlier, the appellant had not lodged and served the evidence below, material which was necessary to this ground as argued by the appellant.
In the absence of that material this ground must fail.
Be that as it may, we were not persuaded there were any reasonable prospects of this ground succeeding even if an adjournment was allowed so that the evidence below could be lodged and served.
The Tribunal accepted the respondents' oral evidence that the tiles in two of the three crates were of a dark colour.
That evidence was corroborated by a photograph showing the difference between the colour of the tiles from the first three crates to those in two of the last three crates, and a letter from the respondents' tiler noting the difference in colour when the tiler opened those two crates.
Such evidence as the appellant gave, if any, on that subject, was rejected. He was not present when the crates were opened. There is no indication there is any evidence the appellant was present when those crates were packed. He did not suggest other witnesses were available to give evidence that the two crates did not contain dark tiles (assuming such evidence was allowed to be given).
In all of those circumstances, it does not seem to us that there were any realistic prospects of the appellant demonstrating that the finding by the Tribunal was glaringly improbable, or contrary to incontrovertible evidence, uncontested testimony or compelling inferences in the case, or that he had been deprived of a significant possibility, or a chance which was fairly open, that the evidence, in its totality, preponderated so strongly against the conclusion found by the Tribunal that the conclusion was not one that a reasonable tribunal member could have reached.
We refuse leave to appeal on Ground 4.

[10]

Ground 5

Ground 5 says that the Tribunal erred by denying the appellant procedural fairness.
The appellant says that the respondents talked for about 20 - 30 minutes, he was put in a defensive situation and hardly got 5 - 10 minutes to tell all the facts. The appellant says that it looked like the Tribunal member had made up her mind before he could speak. He said that, being under pressure at the time, he could not tell all the facts and could not ask for production of the sample tile(s) or show the respondents' original messages. He said that if the respondents genuinely wanted light brown travertine tiles they would have asked for them in the text messages or contract. He said there was absolutely no evidence that he had committed to supply all the tiles in the light brown colour.
A denial of procedural fairness is an error of law and therefore the appellant does not require leave to argue this ground. [7]
The difficulty for the appellant in saying that he did not receive enough time to "tell all the facts" is that he has not provided the Panel with the sound recording of the hearing so that we would be able to objectively determine whether he is correct, and objectively determine how much opportunity he had to tell his side of the story.
Be that as it may, we are not persuaded that there are any reasonable prospects of this ground succeeding even if an adjournment was allowed to enable that sound recording to be placed before us.
It is irrelevant how long the respondents talked for. The relevant question is whether the appellant had sufficient time to "tell all the facts". On this appeal, and in relation to the significant factual findings made by the Tribunal and which he would need to overcome, the appellant did not identify any further fact or evidence which he would have liked to have given (but was allegedly prevented from giving), nor what defence would have arisen from those facts or evidence. None are apparent to us from the material available to us.
The Tribunal had a copy of the eBay advertisement, and accepted the respondents' evidence that the Gumtree advertisement was in similar terms. If the appellant gave evidence to the contrary, it was rejected. There being no other independent evidence to support him, it is most unlikely a reading of the evidence below would have persuaded us, to the extent required, that the finding that the Gumtree advertisement was the same as the eBay advertisement was incorrect.
The appellant did not tender a copy of the Gumtree advertisement at the hearing, nor attempt to do so on this appeal (assuming he had a copy), nor did he then, or now, call other witnesses to say the Gumtree advertisement was different to the eBay advertisement.
The appellant did not appeal from the finding that the respondents had confirmed with him, during their conversation, that they wished to order light brown premium tiles.
The appellant relied upon the terms of clause 2. That defence did not require any further evidence.
There was a dispute about what was in the three crates - incorrect or correct tiles. The respondents gave evidence as to the contents of those crates, as did an expert tiler, and there was a photograph of a tile from those crates. It is apparent that the Tribunal accepted the respondents and the tiler as being honest and accurate in their evidence.
The appellant came to the appeal prepared for a hearing (on the merits, as opposed to an appeal). He did not come with any other witnesses or documents to tender on any of the factual disputes, such as the contents of the three crates. He was not present when the crates were opened, and there is no indication he was present when the crates were packed. If he gave that evidence, it was not accepted.
The Tribunal had a number of contemporaneous documents before it such as a copy of the eBay advertisement and the appellant's invoice. The appellant has not identified any other relevant document which he says he was prevented from tendering other than the respondents original text messages.
The text messages were in evidence. Their only relevance seems to be that they did not mention "premium light brown tiles", but that fact does not assist the appellant. That is because the Tribunal accepted the respondents' evidence that they spoke to the appellant and during that conversation told him they wished to purchase light brown premium tiles, and they purchased a sample tile fitting that description. That evidence was consistent with the contents of the eBay advertisement, and the Tribunal accepted that the Gumtree advertisement (which was referenced by the respondents) was in similar terms. Therefore, we cannot see how the "original" text messages would have altered the findings of the Tribunal.
Therefore, there is no indication that the appellant was prevented from calling or tendering any evidence that was available to him at the time and that may have assisted his case. In other words, it does not appear to us that he did not have the opportunity to "tell all the (relevant) facts".
The appellant's perception that the Tribunal "looked like" she had made up her mind is not a denial of procedural fairness. There is nothing in the material before us to suggest that that perception was in any way warranted.
Neither is not having an opportunity to ask for production of the sample tile(s) a denial of procedural fairness. There is no suggestion that, some nine months after the tiling works were completed, the sample tile(s) were still in the respondents' possession or capable of identification among the tiles subsequently delivered and laid at the respondents' home. The Tribunal accepted the respondents' evidence that the sample was light brown in colour, and this was consistent with the terms of the eBay and Gumtree advertisements, and also consistent with the photograph of the tile included in the eBay advertisement. In those circumstances, it is inherently probable that the respondents would have ordered the tile as advertised.
The appellant finally said that there was absolutely no evidence that he had committed to supply all the tiles in the light brown colour. That is incorrect. Evidence was given by the respondents and accepted by the Tribunal that he, in a conversation with the respondents, had agreed to supply light brown tiles.
We reject Ground 5.

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