Solar Naturally Pty Ltd v Tait

NCAT Appeal Panel|2023-08-24|Before: Dr J

Introduction

This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal (Tribunal) on 23 June 2023 in matter HB 22/51744.
The Tribunal made consent orders in the following terms: By consent, the Tribunal orders that the respondent(s): Solar Naturally Pty Ltd, xxx Road Forestdale WA 6112 is to carry out the following work on or before 30 June 2023 in a proper and workmanlike manner: Details of Work order: remove its solar system from the applicant's property. HUM BHPL Pty Ltd is joined as a respondent. 3. The Tribunal notes the following agreement has been entered into between the parties: a) second respondent's legal team to contact the first respondent. b) the applicant has paid out today the second respondent's contract in full, $5885. c) the first respondent is to inform the second respondent that the contract for the solar system has been cancelled. d) second respondent will issue a full refund to the applicant in the sum of $5885 in approximately three months.
A Notice of Appeal was filed on 29 June 2023, by Kieren Littlefair, a representative of the first appellant. The first appellant's principal ground of appeal is that it was denied procedural fairness as Mr Littlefair entered into settlement negotiations resulting in a settlement agreement but the appellant had not been served with the respondents' documents.
This raises a question of law. The first appellant does not require leave to appeal but can appeal as of right.
While we accept that the first appellant has raised a question of law, for the reasons that follow, we do not find that the Tribunal made an error in respect of that question of law.

Submissions

The first appellant filed no submissions and relied entirely on oral submissions and the documents filed by the respondent.
The respondent, Mr Tait, filed documents on 10 July and 15 August 2023 respectively.
In the respondent's submissions, the respondent states: 1. Although evidence may not have been received by Mr Littlefair in time for the second hearing, he did not raise this with Mr Tait or Ms Price and we could have been sent an email of the copy if requested. As had been done with the first hearing evidence as it was unknown if anyone would attend from Solar Naturally as they had never responded to contact from the applicant. Mr Littlefair acknowledged he held the first pack of evidence when asked in the hearing on 23 June 2023, his response being recorded when he was asked to refer to a particular page of the pack.

Nature of an appeal

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

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.
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).
We have undertaken that exercise during the course of the appeal hearing. In our view, the first appellant did identify a question of law, namely that he was denied procedural fairness during the course of the Tribunal hearing on 23 June 2023.

Leave to appeal

Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The principles to be applied by an appeal panel in determining whether 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.
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

The principal point in this appeal is that the first appellant submits that it was denied procedural fairness in that it was not served with the evidence by the respondent before the 23 June 2023 hearing. Whilst it is not in contention that the documents were not served on the first appellant, for the reasons that follow we are not of the view that the Tribunal erred as there was no hearing, and the parties proceeded to negotiate a settlement. In those circumstances we are not satisfied that the appellant was denied procedural fairness or that the orders were otherwise affected by an error of law.
It is important to set out the history of the application.
The application was filed on 21 November 2022. The applicant, who is now the respondent on this appeal, sought orders in the sum of $9410 being the full refund of the contract sum ($5885) plus any fees that the applicant incurred for extra electricity ($3420). The applicant sought orders for the removal of the solar panels. It was the applicant's contention that the respondent failed to comply with the consumer guarantees and that the product was not fit for its intended purpose.
The matter was listed for a group list and conciliation hearing on 20 December 2022. The matter did not resolve and the Member made directions for the exchange of documents. The applicant was to provide to the respondents and the Tribunal either in person or by post a copy of all documents by 9 January 2023. The respondent Mr Tait served 41 pages of documents on the first appellant's representative, Mr Littlefair. Mr Littlefair confirmed the receipt of the documents.
The first appellant did not serve any documents in response. The second appellant, a finance company, did not file and serve documents as it was only later joined to the proceedings.
The matter was listed for hearing on 24 March 2023 before Member Bliim. On that occasion Mr Tait tendered the bundle of documents and it was marked exhibit A. Transcript of part of these proceedings was provided by the respondent on page 15 of his documents. On that occasion the matter was not finalised and adjourned. The Member made further orders and directions for exchange of evidence. The respondent was ordered to file and serve all documents by 21 April 2023.
The matter was listed for a second time for final hearing on 23 June 2023 for 90 minutes before Senior Member Vrabac. Mr Littlefair appeared for the first appellant, Mr Tait was accompanied by Ms Shai Price and represented himself, and a representative of the second appellant was contacted by telephone. After a short discussion with the Senior Member, the parties entered into settlement discussions. Mr Littlefair remained in the hearing room after being told to move into a conciliation room, and the discussions are recorded. Mr Littlefair remained in the hearing room for part of the negotiation and moved outside for other discussions. It is however, apparent from the transcript that during the next 90 minutes Mr Littlefair spoke to persons from his own company as well as a representative of HUM BHPL Pty Ltd.
It is not in contention that the first appellant had not been served with a second bundle of documents. However, this seems of little consequence as there was no formal hearing and the parties almost immediately entered into settlement discussions with some assistance by the Senior Member.
After approximately 96 minutes of negotiations the following exchange took place and was recorded: Senior Member Vrabac: Okay so I have done it, I will record Mr Littlefair, the matter has resolved by agreement… second respondent legal team to contact first respondent. The applicant has paid the sum, has paid the contract which is $5885 and then the respondent one, that's you, to inform respondent two of the cancellation and respondent two will issue a full refund to the applicant and will put again the sum so they don't issue something less than the sum of $5885. I will put, approximately how long did you say? Mr Littlefair: Oh they told me it can take up to 3 months, but I didn't get an exact timeframe from it. Senior Member Vrabac: Okay approximately up to 3 months. Mr Littlefair: I think I will stop yes.
At approximately 99 minutes the respondent stated: Mr Tait: Okay so we are keeping their panels until they actually pay.
After the hearing Mr Littlefair requested written reasons for decision.
The Senior Member answered in the following terms on 28 June 2023: I refer to the correspondence of the first respondent dated 23 June 2023 requesting reasons for the decision made on the same date. There are no reasons available in this matter because an agreement was reached between the parties to settle the matter and orders were made by consent. Hence no formal reasons were given and none are available for the decision. Having perused the orders made it appears that order 3(d) may need amending. That is, the applicant paid out the second respondent (finance company) in full the sum of $5885 owed under the finance agreement. Therefore, the first respondent is to reimburse the applicant the monies it received from the second respondent. The first respondent's goods were not fit for purpose and the first respondent was to remove the goods from the applicant's roof and reimburse the applicant the monies paid for the goods, $5885. The applicant's Expert evidence (which was uncontradicted) was overwhelming to make the case, the first respondent's goods were not fit for purpose. That is, the applicant contracted to get Three phase solar system installed. The first respondent installed a Single phase. The applicant derived no benefit under the contract in having his power bills reduced by having the solar system installed on his roof. The applicant suffered a loss having paid for the solar system which did not perform as contracted for. It was in the interest of all parties to settle this matter to avoid further costs to the parties and the Tribunal.

Denial of procedural fairness

We see no error in the approach taken by the Tribunal. Clearly enough, the Tribunal was satisfied that the first appellant settled the proceedings by agreement after negotiation between the first appellant, Mr Tait and the second appellant finance company.
While the first appellant has raised a question of law, we see no error by the Tribunal.
As we understand Mr Littlefair's submission, he did not understand he was undertaking settlement discussions with Mr Tait and HUM BHPL Pty Ltd for the purpose of reaching a binding outcome. Further, he seems to suggest that that he was not aware that a final and binding agreement had been reached, or that the Tribunal entered final orders.
We cannot accept Mr Littlefair's submission in this regard. We have been provided with a transcript. The transcript was typed by Mr Tait after he obtained a sound recording of the proceedings. After the parties agreed to conduct a negotiation, the parties were advised by the Member that they should vacate the hearing room and sit in a conciliation room because anything discussed in the hearing room would be recorded. Mr Littlefair declined that offer, as parties often do, and proceeded to discuss with Mr Tait and a HUM BHPL Pty Ltd representative by phone how a settlement may be brokered. This observation is not designed to disclose anything that was discussed between the parties during settlement negotiations. The Appeal Panel merely observes, having received the transcript without objection, that the parties indeed negotiated for approximately 90 minutes before the Member re-entered the room and entered the agreement. There is nothing unorthodox in the conduct of the Tribunal.
During a hearing the Tribunal is to determine its own procedure in respect of any oral hearing: s 38(1) NCAT Act. The obligation of the Tribunal is to facilitate the "just, quick and cheap resolution of the real issues in proceedings" (guiding principle): s 36(1) NCAT Act. Section 38(4) requires the Tribunal "to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms".
Mr Littlefair contends that the settlement should not be binding because he did not understand the process he had embarked upon on behalf of the first appellant. He says that he did not understand that the negotiated outcome would replace or negate the need for a contested hearing, nor did he understand that a settlement was binding on the parties.
Alternatively Mr Littlefair appears to submit that he could not have been in a position to enter into binding orders because he had not received the evidence. Mr Littlefair accepted, at the hearing of the appeal, that he was aware of the respondent's evidence, which he had not received, and viewed it on a screen. That is, he knew that he was not in possession of the respondent's further evidence but nevertheless consented to the orders he now seeks to challenge.
It is difficult for the Appeal Panel to ascertain what exactly occurred at the conciliation on the limited transcript before it. Furthermore, it is, generally, undesirable for the Tribunal to examine what transpired during the course of a conciliation. However we cannot see that Mr Littlefair acted in any way as though he did not understand the process. He did not alert the Senior Member to any issue before being asked about the consent orders, indeed there was a discussion between the Member and Mr Littlefair about how long it may take to remove the panels so that the order may specify a time frame convenient to the appellant. It is hard to conceive that there could be a misunderstanding, having agreed to payment of $5885 and the removal of the solar panels, how this could not be conceived to be a binding order. From the transcript, it is clear that the Member read out and clarified the proposed consent orders to Mr Littlefair, Mr Tait and Ms Price. Mr Littlefair indicated he agreed to the proposed consent orders and in particular to a timeframe of three months to remove the panels from the respondent's premises. There was nothing else that occurred at the hearing to alert the Senior Member to Mr Littlefair's belief that the orders entered are not a binding on the company or did not finalise the proceedings.
Mr Littlefair states that he could not have consented to final orders because he did not receive the respondent's evidence. In order for the appellant to succeed in its appeal, Mr Littlefair must persuade the Appeal Panel there was no true agreement underlying the consent orders.
Rule 37 of the NCAT Rules requires the Tribunal, in deciding whether to give effect to a settlement, to take into account the interests of a "vulnerable person" as that term is defined, namely a person who is totally or partially incapable of representing themselves (or in this instance the appellant company) in proceedings before the Tribunal because of a disability. Mr Littlefair does not submit that he is such a person and there is no evidence to suggest that he suffers from a disability. He states that he could not have entered into binding orders because he did not have an opportunity to read the respondent's evidence.
The principles applicable to setting aside a consent order were outlined by the Appeal Panel in McDonald v McDonald [2016] NSWCATAP 252: 59. A review of the authorities dealing with when a consent order can be set aside can be found in the recent Appeal Panel cases of Prenc v Stojcevski [2016] NSWCATAP 244 at [43]-[45], [53]-[57] and Yuen v Thom [2016] NSWCATAP 243 at [36]-[54]. From those cases, the following principles can be discerned (omitting authorities): (1) At common law, a consent order may be set aside on the same basis as the underlying agreement may be set aside; (2) Whether the agreement constituting the compromise can be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence and the like; (3) In order to set aside a consent order on one of the above bases, it must be possible to point to some contumelious conduct on behalf of the respondent for instance: (a) with respect to duress, it must be shown that illegitimate pressure was placed on the appellant such that there was no reasonable alternative but for her to submit; (b) with respect to undue influence, not only must there be a source of power to deprive the other person of free and voluntary consent, but it must be shown that the agreement was the result of the actual influence; (4) With respect to mistake: (i) the misapprehension must arise in relation to a fact, law or circumstances that affects the substance of an obligation or the mistaken party's motives for entering into the contract; (ii) a common mistake arises when the mistaken belief is held by both parties; (iii) a unilateral mistake is where one party is mistaken but where there are no other vitiating circumstances, such as misleading or deceptive conduct, fraud or misrepresentation, a unilateral mistake will not generally constitute a basis for setting aside an agreement unless the mistake is a serious mistake in relation to a fundamental term of the agreement and the other party knew of, or contributed to, the mistake. (5) With respect to other doctrines which may be applicable, such as unconscionable dealing, it must be shown that one party to the transaction was at a special disadvantage in dealing with the other party because of illness, ignorance, inexperience, impaired faculties, financial need or other circumstances that affect their ability to conserve their own interests, and the other party takes unconscientious advantage of the opportunity. It must be emphasised that the disadvantage must be "special" to disavow any suggestion that the principle applies whenever there is some inequality of bargaining power between the parties. What must be present is some disabling condition or circumstance which seriously affects the ability of the innocent party to make a judgment in their own interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party. (6) There may be other factors which arise such as non est factum which defence would arise in very limited circumstances to persons who, through circumstances such as blindness or illiteracy, are unable to have any understanding of the meaning of the document evidencing the agreement and who signed it in the belief it was radically different to what was in fact signed.
We have had the benefit of reading a transcript. There is no evidence of pressure, threats, mistake or undue influence which led to Mr Littlefair's agreement as reflected in the consent orders.
Whilst there is no question that procedural fairness needed to be applied by the Tribunal we are of the view that no practical injustice has occurred by allowing the parties to negotiate or by entering an agreed consent order. The fact that Mr Littlefair did not receive a second bundle is irrelevant to the settled outcome as he had been for some months in possession of documents constituting exhibit A and the application form and could have been in little doubt as to the nature of the claim. This underlies the primary position that not only must procedural unfairness be shown, but an appellant also needs to demonstrate that the procedural unfairness caused some practical injustice. Mr Littlefair did not explain to us why he did not seek an adjournment or express an unease about entering into settlement negotiations without further time to peruse the documents.
There was no application for an adjournment. Although in the course of oral submissions, Mr Littlefair indicated that he had not received the respondent's documents, it was clear that he was able to negotiate and did not object when the orders were entered. In any event, even if an adjournment was sought, the circumstances in which a refusal to grant an adjournment will form the basis of a successful appeal will be limited. There was no reason for the Tribunal to suspect that the company, ably represented by Mr Littlefair, was not able to negotiate on commercial terms.
As it is not established that the first appellant or its representative is a "vulnerable" person or that Mr Littlefair was under duress when the settlement was entered, the ground of appeal must be dismissed. As the parties agreed the outcome it is not necessary for the Appeal Panel to determine any issue of fact on the merits. In light of the fact that the first appellant settled the proceedings, it is no longer necessary to make findings in respect of the other issues raised in the notice of appeal, being that of the tarp, the air conditioner or the inverter.
For these reasons we are of the view that the second ground of appeal, insofar it raises questions of fact, must be dismissed.

Conclusion

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.
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.
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

The Appeal Panel orders: 1. The appeal is dismissed.

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

At a glance

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Judgment (11 paragraphs)

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Legislation Cited (2)

Cases Cited (8)