Sky Above Roofing Pty Ltd v Lehmann-Monck

Submissions

1. In submissions filed 3 November 2023, the appellant states: Lehmann Monck called Sky Above Roofing on the 18/5/2022 for a roof repair quote. Monck accepted the quotation on the 27/5/2022. Sky Above Roofing arrived at xxx, Enmore on the 27/5/2022 to start the roof repair. Sky Above Roofing repaired the flashing going down the gable on both sides of the roof, Repointed ridge caps, Chimney repair, Skylight tile repair, Once the job was completed Monck was happy with the photos and work that was completed the payment of $3500 was made on 27/5/2022. Sky Above Roofing received a text message from Monck saying ' Hey Jackson my roof is leaking very badly. Can i get you out again please" that was on the 7/10/2022, I then called Monck on the 8/10/2022 she didn't answer the phone i then called her on the 10/10/2022 and same thing did not answer. A message was also sent on 11/10/2022. I waited until 20/10/2022 to call and it didn't ring. Monck blocked my mobile number (I have video evidence that she blocked my number). After failed calls I tried calling Monck from a different number and it rang and Monck answered straight away. I said it's Jackson from Sky Above Roofing, Monck said flashing was leaking and I've already had someone come out to fix the work. I told Monck I have been calling her to resolve the issue. I asked Monck why she blocked my number she said because i found another roofer to fix the flashing, And i will keep your number blocked if you keep calling me i will report you to the police for harassment.
2. Attached to the submissions are a series of photographs.

The Reply to Appeal

1. The respondent opposes the appeal and supports the Decision for the reasons stated.

Submissions

1. In response to the appellant's submissions, the respondent submits that the appellant has submitted "nothing new", and states: 1. May 2022 I relied in good faith on Mr Lawrence's word that he had done a good job before paying him out of contract. He described completed work in detail that I could not see and later I found to have not been completed. He did not show me photos of the faulty and incomplete work. I have a three-story house and could not access the roof to check the work and it did not occur to me that I needed an independent check from an expert. The ground-level-extension roof I could see, but was not aware that that work completed there was unnecessary and had not rectified the problem of water egress. I was relying on Mr Lawrence's word that this smaller work was required. 2. June 2022 I advise Mr Lawrence that I was aware of a defect in the flashing he had installed. I was giving him the opportunity to correct his work. He assured me that this was not an error but a required feature. I took his word in good faith. I have since found out that this work is defective, and needs replacing (although not the cause of the large leak in a separate part of the roof from damages caused). 3. October 2022 a new (what I believed unrelated) roof leak on a different part of the house made me reach out to Mr Lawrence. When he didn't reply I assumed he did not want the job, I knew this is common during heavy rains when roofers are inundated. I therefore called in a make-safe via my own insurance. I had no reason to block Mr Lawrence at this time and did not do so. 4. November 2022 After finding out the extent of the damage caused by Mr Lawrence that my insurance would not cover, including severe damage internally (ie not Sky Above Roofing scope), I had no choice but to start over. I approached Dept Fair Trading who contacted Mr Lawrence. Sometime after I receive a flurry of evening calls from Mr Lawrence's number and I feel intimidated. Mr Lawrence rings over and over, not leaving messages. I block his number late in the evening at which time a get a flurry of calls from an unknown number which I also have to block to stop. 5. Feb 2023 Jackson calls from a silent number after he receives my application from NCAT, and berates me for 8 minutes. In this call I calmly tell him I had blocked him after his previous harassment, and will do so again if needed. I ask him to stop calling me. I was not aware and not consenting that he record this or further calls. 6. The photos submitted clearly intentionally omit the faulty and uncompleted work, and damages unlike those taken by an independent roofer for me.

Nature of an appeal

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

A question of law

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], 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 the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
2. 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).
3. We have undertaken that exercise during the course of the appeal hearing. In our view, the appellant did identify a question of law, namely that it had been denied procedural fairness during the course of the Tribunal hearing on 31 August 2023.

Leave to appeal

1. 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).
2. The principles to be applied by an appeal panel in determining whether or not 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.
3. 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 NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

The Decision

1. The principal point in this appeal is that the appellant was denied procedural fairness in that he did not receive notice of the Tribunal hearing and the Tribunal proceeded in his absence.
2. It is appropriate to set out what why the Tribunal decided to proceed in his absence.
3. In the Decision, the Tribunal stated: 6. The respondent did not appear. A notice of hearing went to the respondent on 15 June 2023 to the registered office address of the respondent and to their email address. There was nothing on the file to indicate why they had not appeared. The respondent did serve documents that were received by the Tribunal on 5 May 2023. 7. The Registrar's standard practices in notifying parties of the date, time and place of hearing is set out in the statutory declaration of the Divisional Registrar of the Consumer and Commercial Division sworn the 29th day of July 2014. 8. Having pursued the Tribunal file, the Tribunal is satisfied that, in accordance with the Registrar's usual practices, notice of today's hearing was issued and has not been returned. 9. Further, the Tribunal considers that justice requires that the matter be dealt with in the absence of the respondent because the applicant would be disadvantaged if the matter did not proceed today. She has appeared and no explanation for the failure to appear has been given by the respondent. She would suffer financial disadvantage if the matter was not heard today as the damage occurred almost twelve months ago and she has been unable to afford the repair.

Denial of procedural fairness

1. We see no error in the approach taken by the Tribunal. Clearly enough, the Tribunal was satisfied that the appellant had notice of the Tribunal hearing.
2. He claims that he never received any notice.
3. We called for the relevant Tribunal file, and raised with the appellant the fact that, as found by the Tribunal, the copy of the notice of the hearing on that file supported the Tribunal's findings at [6] and [8] of the Decision. We have also had regard to r 13(2)(h) of the Civil and Administrative Tribunal Rules 2014 (NSW) which prescribe that in the case of service on a corporation, the service is the manner in which a notice may be served on that corporation which is prescribed in the Corporations Act 2001 (Cth) and that is by posting it to the registered address of the company: see s 109X. We also note that the file shows that the Decision was sent to the appellant at the same postal address. It is perhaps curious that the appellant received the Tribunal's order, but did not receive the notice of hearing, both documents being sent to the same postal address.
4. In conclusion, while the Tenants have raised a question of law, we see no error by the Tribunal.
5. We note that the appellant could have asked for the matter to be reinstated pursuant to cl 9 of the Civil and Administrative Tribunal Regulation 2022 (NSW) (NCAT Regulation). That clause provides that the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal: NCAT Regulation, cl 9(1)(b).
6. The appellant made no such application.

Leave to appeal

1. That means the appellant needs leave to appeal.
2. The first basis for a grant of leave was that the Decision was not fair and equitable. The matters relied on by the appellant in this respect are exactly the same relied on in relation to the denial of procedural fairness ground.
3. As we have already decided that the Tribunal made no error in respect of those matters, we would not grant leave to appeal.
4. The second basis for a grant of leave was that the Decision was against the weight of the evidence.
5. We would not grant leave on this ground either, as pars [24], [25], [26] and [34] of the Decision make it plain that the Tribunal did in fact take into account evidence filed by the appellant, despite its absence at the hearing.
6. In summary, in relation to each of these grounds, we are not satisfied that any matter involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
7. In these circumstances, we would not grant leave to appeal.

Conclusion

1. An appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. As the Appeal Panel stated in Temple v AMR Motors Pty Limited [2017] NSWCATAP 221: 38. … Any decision to grant leave to appeal must be undertaken in a legally principled manner and not simply because, if we were hearing the matter anew on the evidence led before the Member, we might reach a different conclusion when considering that evidence (although in the present case that would not be so). 39. It is fundamental that an appeal on a question of fact does not provide and is not intended to provide an opportunity for an applicant dissatisfied by the result of a hearing at first instance to re-run the same case before an Appeal Panel. Yet, that is, in effect, what the present Appellants seek to do by identifying what they contend are contestable findings of fact by the Member.
2. To put the matter another way, as indicated in the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website): … an appeal is not an opportunity to have a second go at a hearing.
3. For the above reasons, to the extent that the appeal raises a question of law, the appeal is dismissed. To the extent that the appeal raises other errors, we would not grant leave to appeal.

Orders

1. The Appeal Panel orders: 1. In so far as the appeal raises a question of law, the appeal is dismissed. 2. In so far as the appeal raises other errors, leave to appeal is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2023