Shwan v Reachclad Pty Ltd trading as Ace Trailers

Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25

Bark N Purr Pets Pty Ltd v Moussad [2024] NSWCATAP 201

Collins v Urban [2014] NSWCATAP 17

Elley v Commissioner of Police, NSW Police Force [2023] NSWCATAP 237

Goode v Angland (2017) 96 NSWLR 503 [2017] NSWCA 311

GTK v NSW Treasury [2025] NSWCATAP 174

Higgins v Commissioner of Police, NSW Police Force [2025] NSWCATAP 31

Impala Kitchens Pty Ltd v O'Donoghue [2025] NSWCATAP 49

Maclean v Brylewski [2023] NSWCA 173

McNeill v Clarence Valley Council [2025] NSWCATAP 184

New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940

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

Starr v Johnson [2023] NSWCATAP 190

X-Build Construction Services Pty Ltd v O'Rourke [2020] NSWCATAP 181

Yuen v Thom [2016] NSWCATAP 243

Reachclad Pty Ltd trading as Ace Trailers (Respondent)

1. This is an internal appeal from the decision of the Tribunal made on 17 June 2025 (the 17 June 2025 decision) in proceedings between the appellant, Aswad Shwan (Mr Shwan), and the respondent, Reachclad Pty Ltd trading as Ace Trailers (Reachclad).
2. The two issues in the appeal are whether the Tribunal failed to provide adequate reasons for its decision and leave to appeal should be granted.
3. We are not satisfied that Mr Shwan has established that the Tribunal failed to provide adequate reasons for its decision and that leave to appeal should be granted on any of the grounds relied upon by him. Consequently, we have decided to dismiss the appeal, to refuse leave to appeal and to order that Mr Shwan should pay Reachclad's costs of the appeal on the ordinary basis as agreed or assessed.
4. Before considering the issues arising for determination, we have set out or made observations on the following matters:

(1) the background to the appeal;

(2) the history of the appeal; and

(3) the jurisdiction of the Appeal Panel.

1. The dispute between the parties arose out of the supply and fitting of an awning by Reachclad which carries on business under the name Ace Trailers to a Mercedes Sprinter van owned by Mr Shwan. On or about 3 October 2024, Reachclad supplied and fitted a second-hand awning to Mr Shwan's vehicle for which he paid $1,300. Mr Shwan was unhappy with the fit of the awning, and on or about 8 October 2024, Reachclad re-fitted the awning using different brackets. Mr Shwan claimed that the original fitting caused damage to his vehicle by the drilling of holes into its roof.
2. On 4 December 2024, Mr Shwan as the applicant commenced proceedings 2024/00452085 in the Consumer and Commercial Division of the Tribunal against Reachclad as the respondent by lodging a consumer claim application about goods and services in which he sought a money order for $11,300.00 for alleged damage caused to his vehicle (the Shwan application).
3. On 17 June 2025, the Tribunal constituted by General Member S Hunt, following a hearing on 13 June 2025, made the 17 June 2025 decision comprising an order dismissing the Shwan application (the 17 June 2025 order) and reasons for decision (the 17 June 2025 reasons) in which she relevantly:

(1) noted Mr Shwan's made two claims of a breach of relevant consumer guarantees under Australian Consumer Law (ACL), whether goods supplied (specifically the initial brackets) were fit for a disclosed purpose as required by s 55 of the ACL and whether the services provided in fitting the awning were performed with due care and skill as required by s 60 of the ACL. She also noted when making orders under s 79N of the Fair Trading Act 1987 (NSW) (FT Act), the Tribunal must comply with its obligations under s 79U(1) to ensure that those orders are fair and equitable to both parties to the claim. Further, in consumer claims, the burden of proof is on the applicant to establish their claim on the balance of probabilities ([7]-[9]);

(2) set out the positions of the parties by summarising the evidence of Mr Shwan and Peter Roberts (Mr Roberts), the director of Reachclad ([10]-[11]) including:

(a) Mr Shwan gave evidence that he relied upon the expertise of Reachclad to supply and fit the awning and brackets to his vehicle. He did not discuss what Mr Roberts was doing and left the whole job to him;

(b) Mr Roberts gave evidence that holes are routinely drilled into the roof of a vehicle to install an awning. It cannot be done without drilling holes to fix it in place;

(3) noted that Mr Shwan's primary complaint appeared to be that the incorrect brackets were fitted on the first occasion, and that if the other brackets had been used initially then no holes would have been drilled, and his vehicle would not have been damaged ([12]);

(4) as to Mr Shwan's claim that the first brackets installed were not fit for purpose:

(a) after noting that no independent or supporting evidence of the unsuitability of the first set of brackets had been provided by him ([14]), summarised the claim as being made on the following basis ([15]):

(i) they were not suited to his vehicle;

(ii) they required screws for installation or additional screws for installation;

(iii) after the first installation, he could not open the door to the vehicle without touching the awning;

(b) made the following findings:

(i) based on Mr Roberts' evidence that there were two types of brackets available to fit the particular type of awning to the particular vehicle. Neither set of available brackets was perfectly suitable for the vehicle because it was an unusual model, being an old ambulance, and had a curved roof. This led to the inability to fit the centre one of the three brackets and measures be taken to ensure that the awning was secure ([16]);

(ii) she accepted Mr Roberts' evidence that the drilling of holes is necessary to fix the brackets which hold an awning in place on the roof of a vehicle. While some vehicles are set up for roof racks to be installed on rails or pre-installed fitting, for awnings, they are variable and will always need holes drilled. The drilling of holes forms part of the installation instructions. She did not accept Mr Shwan's claim that no holes were required ([17]);

(iii) she accepted Mr Roberts' evidence that the first installation required the drilling and fixing of additional screws, where the second did not, because of the then position of a flood light fixed in the gutter, which Mr Shwan did not wish to move. She did not conclude that the first was evidently unsuitable on the basis that the second installation could be done without extra screws because for the second installation, which was done without additional screws, Mr Shwan agreed to moving the floodlight, which meant that the brackets could be repositioned ([18]);

(iv) after noting direct contradiction between the evidence of the parties as to whether the first installation interfered with the door mechanism which Mr Shwan had not raised before the hearing, she was not persuaded that the first installation interfered with the door ([19]-[21]);

(v) having considered and weighed the relevant evidence, she rejected Mr Shwan's claim that the first brackets installed were not fit for purpose ([22]);

(vi) if she was wrong, she noted that Mr Roberts installed alternative brackets on the vehicle, without charge, and so the remedied this issue to some extent ([23]);

(5) as to Mr Shwan's claim that the services were not provided with due care and skill:

(a) summarised the three complaints of Mr Shwan ([26]):

(i) Reachclad drilled unnecessary holes in the roof of the vehicle;

(ii) the holes in the roof left by the first installation were not adequately repaired;

(iii) the holes in the roof have led to water ingress into the vehicle;

(b) made the following findings:

(i) as to the first complaint, she accepted Mr Roberts' evidence that with the first installation, in light of the curve in the roof, and the interference of the flood light, he took a prudent step in installing additional screws to secure it. The additional screws were required to secure the awning. And in circumstances where she had not found liability for the choice of awning, she was not persuaded that the holes were unnecessary. In light of her finding that the first installation was adequate, and the brackets suitable, she concluded that the additional holes were necessary. Mr Roberts acted with due care and skill ([28]);

(ii) as to the second and third complaints, she was not persuaded on the evidence provided that there has been water ingress to the vehicle, nor that any internal damage has been done to the vehicle as a result of the way that Mr Roberts sealed the additional holes. It was Mr Roberts' uncontested evidence that Mr Shwan refused to show him the damage or allow him to examine the vehicle for a leak when he visited the workshop on 16 October 2024. The photos submitted by Mr Shwan of the interior of the vehicle include an apparently pristine ceiling ([30]);

(iii) Mr Shwan had not made out any negligence in relation to the first installation. Mr Roberts did secure the holes from the weather and tried to assist him to access alternative and neater solutions. Mr Shwan had not made out any claim that there has been water ingress in the vehicle as a result of the holes ([31]);

(c) in all the circumstances, she found that Mr Shwan had not established a breach of Reachclad's obligations to provide services with due care and skill ([32]);

(6) found that Mr Shwan was not entitled to any compensation and that the Shwan application should be dismissed ([33]-[35]).

1. On 10 July 2025, Mr Shwan as the appellant commenced these proceedings against Reachclad as the respondent by lodging a notice of appeal in which he appeals against the 17 June 2025 order and:

(1) in section 5B sets out his grounds of appeal;

"Ground 1 - Decision Against the Weight of Evidence

The Tribunal erred in reaching a finding contrary to the weight of evidence presented at hearing. In particular:

● The Applicant tendered photographic and written documentation demonstrating that the awning installation resulted in roof damage, misalignment of vehicle fittings, and functional obstruction of the rear door.

● The Respondent's assertion that drilling was necessary contradicted evidence that existing rails could have accommodated installation without roof penetration.

● The Tribunal failed to give sufficient weight to the Applicant's assertion that incorrect brackets were selected during the first installation, resulting in structural defects and obstruction.

● The Respondent conceded that the first installation involved flawed bracket selection and proceeded with a remedial installation, implicitly acknowledging the inadequacy of the initial work.

● Despite these admissions, and the Applicant's documentation of resulting roof damage and water ingress, the Tribunal accepted the Respondent's version without reconciling these factual inconsistencies.

Ground 2 - Failure to Provide Adequate Reasons

The Tribunal failed to provide sufficient reasons for preferring the Respondent's account over that of the Applicant, despite clear contradictions and admissions of fault:

● The reasons did not adequately explain why the Tribunal rejected the Applicant's evidence that drilling was not authorised and that damage resulted from avoidable errors.

● There was no substantive analysis of the Respondent's admission that the first installation was flawed and the implications for liability and workmanship.

● The Tribunal did not address why it accepted that the Respondent's repair actions absolved the original error despite offering only temporary or cosmetic fixes.

● The Tribunal did not evaluate whether the consent provided by the Applicant during intermittent presence constituted informed or explicit authorisation of drilling or bracket selection."

(2) in section 6B states that he is asking for leave to appeal on the basis that the 17 June 2025 decision was not fair and equitable and against the weight of evidence and that significant new evidence is available which was not reasonably available at the time of the hearing.

1. On 29 July 2025, Reachclad lodged a reply to appeal in which it disputed the grounds of appeal and opposed leave to appeal being granted.

1. Part 6 Division 2 (ss 80-81) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) contains provisions dealing with internal appeals. An appeal against an internally appealable decision may be made in the case of any kind of decision (including an ancillary decision) other than an interlocutory decision as of right "on any question of law", or with the leave of the Appeal Panel, on any other grounds: s 80(1) and (2)(b).
2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are where it is satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable, or the decision of the Tribunal under appeal was against the weight of evidence, or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with): cl 12(1)(a), (b) and (c) of Sch 4.
3. The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including, but not limited to, any one or more of orders specified in s 81(1). This includes an order that the appeal is to be dismissed: s 81(1)(a).

1. An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b) of the NCAT Act: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
2. Except where there is a new hearing under s 80(3) of the NCAT Act, an appeal is conducted as a rehearing on the materials before the Tribunal to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error: Yuen v Thom [2016] NSWCATAP 243 at [14]- [17].

1. Mr Shwan conceded that he is seeking leave to appeal on the basis of ground of appeal 1. In the light of this concession, we have decided to consider ground of appeal 2 before dealing with Mr Shwan's application for leave to appeal. We have then considered Reachclad's application for an order that Mr Shwan pay its costs of the appeal.

Ground of appeal 2: whether the Tribunal failed to provide adequate reasons

1. Ground of appeal 2 requires the consideration of the following questions:

(1) whether a failure of the Tribunal to provide adequate reasons raises a question of law;

(2) whether the 17 June 2025 reasons satisfy the requirements of s 62(3) of the NCAT Act.

Whether a failure of the Tribunal to provide adequate reasons raises a question of law

1. Mr Shwan submitted, but did not make any submissions as to the specific question raised or why, ground of appeal 2 raises a question of law.
2. Reachclad submitted, but did not make any submissions as to why, ground of appeal 2 does not raise a question of law.
3. Section 62 of the NCAT Act relevantly states:

62 Tribunal to give notice of decision and provide written reasons on request

...

(2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.

(3) A written statement of reasons for the purposes of this section must set out the following -

(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,

(c) the reasoning processes that lead the Tribunal to the conclusions it made.

(4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so. by a party.

1. In New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (Orr), two members of the New South Wales Court of Appeal raised but did not decide the question of whether there is any duty, statutory or otherwise, for the Tribunal to give reasons for a decision in the absence of a request from a party under s 62(2) of the NCAT Act:

"Section 62(3) of the CAT Act only applies, in terms, to "a written statement of reasons for the purposes of this section." Arguably, that confines its operation to reasons supplied pursuant to a request by a party for reasons after having been notified of a decision by the Tribunal. It is not unreasonable, however, to suppose that s 62(3) supplies important guidance as to what should be set out by the Tribunal in reasons which it chooses to give even without a request for reasons pursuant to s 62(2). ..."

(2) Ward JA, who concurred with Bell P, in making additional comments at [110]-[114] relevantly stated:

"[110] As his Honour has noted, the question before this Court was as to what constitutes adequacy of reasons of a tribunal such as the New South Wales Civil and Administrative Tribunal (NCAT). What was not explored in this Court (and appears not to have been explored in argument before the primary judge) was as to whether there was any duty (statutory or otherwise) on the part of the Tribunal (including when constituted as an Appeal Panel) to give reasons in the circumstances of the present case; and, if not, what flowed from that in terms of the adequacy of the reasons that were given but that, on that hypothesis, there was no duty to give. The issue is by no means a simple one but it was simply not explored, and hence it is inappropriate to reach any concluded view on it, in the present case.

[111] The issue arises because the statutory obligation on the part of the Tribunal to provide written reasons arises pursuant to s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) only when a party requests the provision of a written statement of reasons for the Tribunal's decision. Section 62(2) of the NCAT Act does not in terms contemplate that reasons will necessarily be given in the absence of such a request (and in the present case it is not possible on the material before this Court to determine whether any such request was made).

[112] In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel held (at [47]) that s 62 of the NCAT Act establishes a regime under which the Tribunal is not under an express statutory obligation to provide reasons for a decision unless a party makes a request for reasons under s 62(2) but noted that in many cases the Tribunal does prepare and give reasons for decision without a request so to do from the parties. The Appeal Panel went on to observe that a provision such as s 62 of the NCAT Act does not define exhaustively when there is a duty to give reasons or the extent of that duty. ...

...

[114] ... It should not be assumed that, in the absence of a request for the provision of reasons, there is an implied statutory obligation (let alone an obligation at common law) on the part of the Tribunal to do so. Nor should it be assumed that the content of reasons required to be provided under any such implied statutory obligation, or common law obligation, were such an obligation to be found, would mirror that required of a court. ..."

1. In Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 (Nu-Stone) at [58], Wright J held that the written statement of reasons of the Appeal Panel before making its dispositive orders, apparently without a request from any party, was "a written statement of reasons ... [which had] already been provided" within s 62(2) and, thus, constituted "a written statement of reasons for the purposes of this section" to which s 62(3) applied.
2. The question of whether a failure of the Tribunal to provide adequate reasons raises a question of law within s 80(2)(b) of the NCAT Act has recently been considered by differently constituted Appeal Panels in GTK v NSW Treasury [2025] NSWCATAP 174 (GTK) at [26]-[37] and McNeill v Clarence Valley Council [2025] NSWCATAP 184 (McNeill) at [135]-[138].
3. In GTK at [26]-[37] (as to which we note the word "or" in the last sentence of [37] is an obvious a typographical error for "of"), the Appeal Panel relevantly said:

"[26] As mentioned, the appeal is brought on the ground, amongst others, that the Tribunal failed to provide adequate reasons. Assuming there to be a duty to provide adequate reasons, a breach of the duty to do so, could raise a question of law: Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [29]; Commissioner of Police, NSW Police Force v DYD [2023] NSWCATAP 244 at [11]- [18].

...

[30] We proceed on the basis that compliance with s 62(3) of the NCAT Act would be tantamount to providing adequate reasons.

[31] There is no binding authority as to whether the Tribunal has a duty to give adequate reasons, or more particularly reasons that comply with s 62 of the NCAT Act, absent a written request. ...

...

[36] ... Where a written statement of reasons is voluntarily provided, we prefer the view, in light of s 62(4), that it too must comply with s 62(3) of the NCAT Act.

[37] However, it is ultimately not necessary to finally decide this last point. Notably, s 38(2) of the NCAT Act preserves the rules of natural justice. A failure to provide adequate reasons may represent a failure to consider key evidence and submissions and therefore constitute a denial of procedural fairness or it may reveal a constructive failure to exercise the jurisdiction: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 277; Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 at [129]; and, by implication, Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26 at [24]- [32] ("Dranichnikov"). Both of those questions raise a question or law: FLK v Transport for NSW [2023] NSWCATAP 140, at [22]-[27] (and the authorities there cited)."

1. In McNeill at [136]-[138], the Appeal Panel relevantly said:

"[136] The question might be whether the statutory duty under s 62 of the NCAT Act has been satisfied; or whether the reasons were "sufficient at law" (see Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 per Basten JA at [23]; Wollondilly at [32]). Noting that s 38(2) of the NCAT Act preserves the rules of natural justice, a failure to provide adequate reasons may represent a failure to consider key evidence and/or submissions and therefore constitute a denial of procedural fairness or it may reveal a constructive failure to exercise the jurisdiction: see GTK v NSW Treasury [2025] NSWCATAP 174 at [37] and cases therein referred to.

...

[138] Whether there is a duty to provide a written statement of reasons which meets the requirements of s 62(3) in other circumstances is not settled. Where no request is made under s 62(2) and written reasons are in any event provided, it is arguable that those written reasons must comply with s 62(3): see Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 at [57] where Wright J considered that if written reasons were voluntarily provided, they should comply with s 62(3); see also discussion in the recent Appeal Panel decision of GTK v NSW Treasury [2025] NSWCATAP 174 at [26]-[38]."

1. As recognised in GTK at [26], the foundational question in deciding whether a failure of the Tribunal to provide adequate reasons raises a question of law is whether the Tribunal has a duty to provide adequate reasons, or more particularly reasons that comply with s 62(3) of the NCAT Act. As noted in McNeill at [138], the question of whether there is a duty upon the Tribunal to provide a written statement of reasons which meets the requirements of s 62(3) of the NCAT Act when provided voluntarily is not settled. It is unnecessary to decide this question in deciding this issue. This is because, as set out below, on the assumption that the Tribunal was under a duty to provide a written statement of reasons which meets the requirements of s 62(3) of the NCAT Act, the 17 June 2025 reasons satisfy those requirements.

Whether the 17 June 2025 reasons satisfy the requirements of s 62(3) of the NCAT Act

1. In Orr, Bell P at [65]-[77] (with Ward JA concurring) relevantly made the following observations with respect to the applicable principles for determining the adequacy of reasons which are voluntarily provided:

"...

[66] In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard ...

...

[71] ... 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 ...

[72] Whilst s 62(3) provides a useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed.

...

[76] What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context.

[77] These principles include the following:

(1) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole";

(2) the court should not read passages from the reasons for decision in isolation from others to which they may be related;

(3) the reasons must be read fairly and as a whole;

(4) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error;

(5) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips." (citations omitted)

1. In Nu-Stone at [60]-[63], Wright J relevantly made the following observations with respect to the standard to be reached in complying with the requirements of s 62(3) of the NCAT Act:

"[60] When it comes to considering the related question of the standard to be reached in complying with the requirements of s 62(3), it is important to note that, in the context of appellate review of the adequacy of reasons, an appellate court is not required to determine the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard.

...

[62] ... it may be appropriate for the Appeal Panel to be held to a higher standard of adequacy in respect of its written statements of reasons than might apply to reasons of the Tribunal at first instance. ...

[63] Other relevant, more general principles concerning the adequacy of reasons for decisions include:

(1) One of the functions of reasons for decisions is to explain to the losing party why that party lost;

(2) Reasons should be read fairly and as a whole to determine whether they are adequate; and

(3) It is open to a decision maker to accept and incorporate by reference one party's submissions, as long as it is clear what is being accepted." (citations omitted)

1. Apart from repeating the four alleged inadequacies in the 17 June 2025 reasons comprising ground of appeal 2, Mr Shwan made no submissions in support of this ground. Reachclad made no submissions in opposition to this ground.
2. We are not satisfied that the Tribunal failed to adequately explain why it rejected Mr Shwan's evidence that drilling was not authorised and that damage resulted from avoidable errors. The Tribunal explained that the drilling and fixing of additional screws were required because of the then position of a flood light fixed in the gutter, which Mr Shwan did not wish to move.
3. We are not satisfied that the alleged inadequacy of the Tribunal failing to analyse Reachclad's admission that the first installation was flawed and the implications for liability and workmanship has any substance. There was no such admission. Rather, as set out by the Tribunal, when Mr Shwan complained about the first installation, saying Mr Roberts had used the wrong brackets, and wanted them changed, Mr Roberts complied with what Mr Shwan wanted, even though he believed the first installation was adequate.
4. We are not satisfied that the alleged inadequacy of the Tribunal not addressing why it accepted that Reachclad's repair actions absolved the original error despite offering only temporary or cosmetic fixes has any substance. There was no such error. Rather, as explained by the Tribunal, the drilling and fixing of additional screws were required because of the then position of a flood light fixed in the gutter, which Mr Shwan did not wish to move.
5. We are not satisfied that the alleged inadequacy of the Tribunal not evaluating whether the consent provided by Mr Shwan "during intermittent presence" constituted informed or explicit authorisation of drilling or bracket selection has any substance. There was no need for evaluation. Mr Shwan's evidence was that he relied upon the expertise of Reachclad to supply and fit the awning and brackets to his vehicle. The Tribunal accepted Mr Roberts' evidence that the drilling of holes is necessary to fix the brackets which hold an awning in place on the roof of a vehicle. Further, the Tribunal accepted Mr Roberts' evidence that the drilling and fixing of additional screws were required because of the then position of a flood light fixed in the gutter, which Mr Shwan did not wish to move.
6. It follows that we reject ground of appeal 2.

1. In asking for leave to appeal Mr Shwan in the notice of appeal:

"1. Grounds for Seeking Leave to Appeal

... The Appellant contends that the decision was not fair and equitable and that a substantial miscarriage of justice has occurred.

Leave is sought on the basis that:

● The Tribunal's findings were contrary to the weight of evidence;

● The Tribunal failed to provide adequate reasons for its conclusions;

● The decision did not satisfy the requirement under s 79U(1) of the Fair Trading Act to be fair and equitable to all parties.

2. Why the Decision Was Not Fair and Equitable

a. Mischaracterisation of Authorisation and Conduct

The Tribunal found that the Respondent acted with the Appellant's knowledge and authorisation during installation. However, this was not supported by the evidence:

● The Appellant expressly denied authorising drilling into the roof, noting that the vehicle had existing rails and fittings capable of supporting the awning.

● The Respondent's account acknowledged intermittent presence and evolving instructions, which does not amount to informed and explicit authorisation of structural alterations.

b. Insufficient Consideration of Technical Failings and Admissions

The Tribunal accepted that the Respondent's first installation was adequate, yet:

● The Respondent admitted to using the wrong brackets and subsequently replaced them at his own expense.

● The Appellant presented a repair quote of $10,037.72 from a third -party repairer, evidencing structural damage and water ingress - matters not adequately evaluated by the Tribunal.

● The second installation required reconfiguration, filling of visible holes with epoxy, and alternative bracket alignment due to a curved roof - undermining claims of proper workmanship.

c. Failure to Assess Disproportionate Risk and Impact

The Tribunal failed to balance the consequences of the defective installation:

● The damage was not superficial; it involved compromised roof integrity and operational interference with the rear door.

● The Respondent offered temporary fixes, which did not prevent ongoing leaking or future repair costs borne by the Appellant.

d. Lack of Adequate Reasons Under Common Law Principles

The Tribunal did not explain:

● Why the Respondent's version was preferred over the Appellant's, particularly in light of admissions, technical inconsistencies, and remedial actions taken.

● Why the Respondent's claim that drilling was necessary was accepted without critically evaluating alternative installation methods or industry standards."

(2) in contending that significant new evidence is available which was not reasonably available at the time of the hearing relevantly states:

"...

What evidence/documents do you now seek to produce to the Tribunal? ...

The respondent provided a second invoice by a repairer deemed not to be professional in the amount of $1 ,252.24. I wish to submit this new evidence in support of my case which is consistent with the overall repair cost.

Why was this evidence (including documents) not available at the time of the nearing?

It was deemed incomplete because it was not accompanied by photographs of the damage."

1. As Mr Shwan is seeking leave to appeal on the three grounds in cl 12(1) of Sch 4 of the NCAT Act we have considered each of them in turn. Before considering these grounds, we have summarised the principles applied in determining whether to grant leave to appeal.

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

"... there was a 'significant possibility' or a 'chance which was fairly open' that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." (emphasis in original)

1. In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that:

(1) if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act;

(2) the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach.

1. The test of whether evidence is reasonably available for the purpose of cl 12(1)(c) of Sch 4 of the NCAT Act is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23].
2. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act: Bark N Purr Pets Pty Ltd v Moussad [2024] NSWCATAP 201 at [25].
3. In Collins, the Appeal Panel at [84] set out the general principles which govern the granting of leave to appeal. These general principles were recently summarised by the New South Wales Court of Appeal in Maclean v Brylewski [2023] NSWCA 173 at [24] (Ward P and Simpson AJA):

"[24] It is not disputed that leave to appeal is necessary. In determining whether leave to appeal should be granted, something more must be demonstrated than that the primary judge's decision was arguably wrong. What is ordinarily required to be demonstrated is that the matter involves a question of principle or of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable. Moreover, where, as here, the decision the subject of the application for leave to appeal involves an exercise of discretion, what is required to be demonstrated is error in the House v The King sense." (citations omitted)

1. We note that Appeal Panels have taken a range of approaches that Appeal Panels to the interpretation and application of s 80(2)(b) and cl 12 of Sch 4 of the NCAT Act. In some cases, the reasons for leave to appeal within cl 12 were treated as the grounds, and in other cases, they were treated as hurdles for leave to appeal on the grounds already identified by the appellant in the notice of appeal: Impala Kitchens Pty Ltd v O'Donoghue [2025] NSWCATAP 49 at [67].

Whether Mr Shwan may have suffered a substantial miscarriage of justice because the 17 June 2025 decision was not fair and equitable

1. As the first two grounds relied on by Mr Shwan are properly understood as factors as to why he contends that the 17 June 2025 decision was against the weight of evidence, we have considered them in dealing with this issue.
2. The third ground relied on by Mr Shwan is without substance as it assumes the installation of the awning was defective. The Tribunal was not satisfied that the installation of the first awning was defective.
3. Differently constituted Appeal Panels have held that a ground of appeal alleging a failure to provide adequate reasons will mostly, or in certain circumstances, involve consideration of a question of mixed fact and law: Starr v Johnson [2023] NSWCATAP 190 at [47]; Elley v Commissioner of Police, NSW Police Force [2023] NSWCATAP 237 at [17]. Further, a failure to provide adequate reasons to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it is a sufficient basis for granting leave to appeal: Higgins v Commissioner of Police, NSW Police Force [2025] NSWCATAP 31 at [15].
4. To the extent Mr Shwan contends "(t)he Tribunal did not explain (w)hy the Respondent's version was preferred over the Appellant's, particularly in light of admissions, technical inconsistencies, and remedial actions taken" the fourth ground overlaps with ground of appeal 2 and is without substance for the reasons we have given. This ground is otherwise without merit. There was no error by the Tribunal in not "critically evaluating alternative installation methods or industry standards" because Mr Shwan who bore the onus of proof did not adduce any such evidence.
5. We infer, in circumstances where it referred to s 79U(1) of the FT Act in the 17 June 2025 decision, that the Tribunal in making the 17 June 2025 order was satisfied that the order would be fair and equitable to all the parties to the Shwan application. As Mr Shwan's solicitor made no submissions as to why the Tribunal was in error in being so satisfied, we reject this ground relied upon by Mr Shwan.
6. It follows that we are not satisfied that Mr Shwan may have suffered a substantial miscarriage of justice because the 17 June 2025 decision was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act.

Whether Mr Shwan may have suffered a substantial miscarriage of justice because the 17 June 2025 decision was against the weight of evidence

1. Mr Shwan relied on documents attached to the notice of appeal, documents lodged with his written submissions and a transcript of the hearing.
2. To establish an error for which leave to appeal should be granted, we would have expected identification of each finding in 17 June 2025 decision that was challenged, an articulation of the legal principles that were relevant to the finding and/or an analysis of the evidence that was relevant to the finding, the reasons why the finding was erroneous, and how any such erroneous finding was material to the making of the 17 June 2025 decision. Mr Shwan's solicitor in his written and oral submissions did not address these matters.
3. The listing of the matters in ground of appeal 1 and the first two grounds relied on by Mr Shwan for his contention that the 17 June 2025 decision was not fair and equitable do not establish that the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach.
4. It follows that we are not satisfied that Mr Shwan may have suffered a substantial miscarriage of justice because the 17 June 2025 decision was against the weight of evidence within cl 12(1)(b) of Sch 4 of the NCAT Act.

Whether Mr Shwan may have suffered a substantial miscarriage of justice because significant new evidence has arisen

1. Mr Shwan is seeking to rely on the following documents as constituting significant new evidence:

(1) a DVD lodged on 11 September 2025 (the DVD);

(2) an undated quotation of Peter Warren Automotive for the labour costs for fitting an "AC Unit" supplied by the customer (the undated Peter Warren quotation);

(3) an estimate dated 30 June 2025 of Hi Light Smash Repair (the 30 June 2025 Hi Light estimate);

(4) photographs and documents numbered 1 to 24 lodged on 11 September 2025 (the 11 September 2025 photographs and documents);

(5) his affidavit sworn on 28 August 2025 (the 28 August 2025 Shwan affidavit).

1. In considering whether Mr Shwan has established a basis for leave to appeal with respect to the 11 September 2025 photographs we have had regard to the principle that photographs can be deceptive, particularly in relation to perspective and distance. Great care must be taken in interpreting photographic evidence. This is particularly the case where there is no evidence as to the precise position of the camera when the photographs were taken: Goode v Angland (2017) 96 NSWLR 503 [2017] NSWCA 311 at [93]- [96] (Beazley P with Meagher JA at [179] and Leeming JA at [212] agreeing). These principles are applied in the Tribunal: X-Build Construction Services Pty Ltd v O'Rourke [2020] NSWCATAP 181 at [64].
2. We are not satisfied that any of these documents constitute significant new evidence that was not reasonably available at the time of the hearing for the following reasons:

(1) Mr Shwan has adduced no evidence as to why the DVD and the 11 September 2025 photographs and documents constitute significant new evidence and were not reasonably available at the time of the hearing. There is no evidence as to when the photographs were taken and in most cases what they depict and what inferences can be drawn from them are not self-evident;

(2) the undated Peter Warren quotation does not constitute significant new evidence because it deals with the fitting of an "AC Unit" to an unidentified vehicle of an unidentified customer;

(3) the 30 June 2025 Hi Light estimate does not constitute significant new evidence because it is not relevant in circumstances where Reachclad was not in breach of the consumer guarantees under ss 55 and 60 of the ACL;

(4) Mr Shwan in the 28 August 2025 Shwan affidavit in substance repeats his evidence adduced at the hearing. We have been unable to discern that it contains any significant new evidence.

1. It follows that we are not satisfied that Mr Shwan may have suffered a substantial miscarriage of justice because significant new evidence has arisen that was not reasonably available at the time of the hearing within cl 12(1)(c) of Sch 4 of the NCAT Act.

1. Since none of the criteria in cl 12(1) of Sch 4 of the NCAT Act has been satisfied, we have decided to refuse leave to appeal against the 17 June 2025 decision.
2. Even if we had been satisfied that Mr Shwan may have suffered a substantial miscarriage of justice, then having regard to the matters in Collins at [84(2)], we would not have exercised the discretion under cl 12(1) of Sch 4 of the NCAT Act to grant leave to appeal against the 17 June 2025 decision.

Reachclad's application for an order that Mr Shwan pay its costs of the appeal

1. Mr Shwan in his written submissions dated 28 August 2025 relevantly seeks the following orders:

"9. That judgment be entered in favour of the Appellant in the amount of $10,037.72, representing the quoted cost of repairs to the Appellant's vehicle arising from damage caused by the Respondent's defective installation.

10. That the Respondent be ordered to pay the Appellant the sum of $10,037.72 within 28 days of the Appeal Panel's decision.

11. That the Respondent be further ordered to pay the Appellant the amount of $25,300.03 for damage caused to the vehicle's air conditioning system, which arose as a direct consequence of the roof penetration and water ingress."

1. Reachclad's application for an order that Mr Shwan pay its costs of the appeal is based on r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) because the amount claimed by him in the appeal exceeds $30,000.00.
2. Rule 38 of the NCAT Rules deals with costs in the Consumer and Commercial Division of the Tribunal, and relevantly provides:

38 Costs in Consumer and Commercial Division of the Tribunal

(1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.

(2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if -

...

(b) the amount claimed or in dispute in the proceedings is more than $30,000.

1. Rule 38A of the NCAT Rules deals with costs in internal appeals, and relevantly provides:

38A Costs in internal appeals

...

(2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.

1. For the purpose of r 38A of the NCAT Rules the amount claimed or in dispute is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57].
2. The general principles concerning the awarding of costs under r 38 of the NCAT Rules were considered by the Appeal Panel in Vella v Mir (No 3) [2020] NSWCATAP 17 (Vella (No 3)) at [28]-[30]:

"[28] Clause 38 gives the Tribunal a wide discretion to make an order for costs. It does not specify the factors the Tribunal must take into account in exercising the discretion, although the discretion to make such an order must be exercised judicially: see, for example, Ruddock v Vadarlis [2001] FCA 1865 at [9].

[29] Where an application has been heard and determined on the merits and Clause 38 applies, the appropriate starting point for the exercise of the discretion is not that the parties are to pay their own costs. Rather, it is the well-established position at common law; that is, that the purpose of making a costs order is to provide compensation to the party in whose favour the order is made for the expense the party has been put to in prosecuting or defending legal proceedings. In general terms, this means that a party who is successful is entitled to an order for costs in its favour, subject to exceptions generally involving misconduct on the part of that party: Latoudis v Casey [1990] HCA 59; [1990] 170 CLR 534; Oshlak v Richmond River Council [1998] HCA 11.

[30] In BNT Constructions Pty Ltd v Allen [2017] NSWCATAP 186 the Appeal Panel, having set aside a costs order made in the Consumer and Commercial Division, decided to re-exercise the costs discretion. Clause 38 was the applicable costs provision in that case. At [67] the Appeal Panel noted the following principles relevant to the exercise of the discretion:

(1) the starting point is that a successful party should be entitled to an order for costs in his favour;

(2) an award of costs is by way of an indemnity and not as punishment;

(3) there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party;

(4) the factors to be considered are not to be confined as to do so would constrain the general discretion;

(5) the relative success of the parties on different issues and the time taken to determine them may be relevant;

(6) the nature of the proceedings is relevant;

(7) the proper exercise of the discretion requires a decision maker to do justice between the parties and to exercise the discretion having regard to relevant considerations and in a manner which is not arbitrary and capricious."

1. We are satisfied that r 38A(2) of the NCAT Rules is applicable to this appeal because the amount in dispute in the appeal is more than $30,000.00.
2. Having regard to the principles in Vella (No 3) at [28]-[30], we cannot see any reason why Mr Shwan should not pay the costs of the appeal of Reachclad as agreed or assessed, and have made this order.

(1) The appeal is dismissed.

(2) Leave to appeal is refused.

(3) The appellant is to pay the costs of the respondent of the appeal on the ordinary basis as agreed or assessed.

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.