Wong v Yousif Enterprises

Extension of Time

1. The appeal relates to orders and decisions made by the Tribunal in the March Decision and the April Decision. As the Notice of Appeal was filed on 10 May 2016, the appeal in relation to the April Decision was brought within the time required by r 25(4)(c) of the Civil and Administrative Tribunal Rules, 2014 (namely 28 days of the date of decision), but the appeal in respect of the March Decision was not. At the hearing, Mr Layoun, who appeared for the respondent, indicated that he did not object to the Appeal Panel granting an extension of time for the filing of the appeal in relation to the orders of the Decision. Accordingly, the Appeal Panel extended the time within which the appellant could bring that appeal to 10 May 2016.

Notice of Appeal

1. The Notice of Appeal states that the appellant wished to appeal from the April Decision. However, in the section of the Notice of Appeal titled "Orders Challenged on Appeal" the appellant states that she wishes to challenge orders 4, 15, 24 and 29 of the March Decision.
2. It is appropriate to make some comments about this. We note that the only orders made on 8 March 2016 were orders adjourning the hearing and providing for the filing and service of documents and other procedural matters. Order 4, referred to by the appellant, is an order that the respondent provide to the appellant, and the Tribunal, a copy of all documents on which he intends rely at the hearing by 1 April 2016.
3. The orders referred to as "15", "24" and "29" are in fact references to pars [15], [24] and [29] of the reasons for decision. Paragraph [15] sets out the effect of the second consent order made on 1 July 2015. Paragraph [24] summarises the submissions made at the hearing and includes a finding that the appellant's claims in relation to the skirting board was rejected. Paragraph [29] is a finding concerning the staircase tiling. It appears that the appellant is claiming that the Tribunal was wrong to reach those conclusions.
4. The Notice of Appeal indicates that the appellant was seeking leave to appeal from the decision of the Tribunal. The Notice of Appeal states that the decision was not fair and equitable, against the weight of the evidence, and that there is significant new evidence now available that was not reasonably available at the time of the hearing.
5. In relation to the decision not being fair and equitable, the appellant states that: "It is unfair and inequitable for the appellant to comply with Tribunal orders and the respondent continuance of non-compliance rectification and Tribunal orders throughout the whole Tribunal process and there has been no offence and penalties".
6. She also states that the Tribunal failed to identify the breaches and that only a minimal amount of compensation was ordered to be paid. She feels she has been mistreated by the Tribunal, and that the Tribunal was not enforcing the law. She believes that there should be disciplinary action against the respondent.
7. As to the decision of the Tribunal being against the weight of the evidence, the appellant states that she had submitted a "report, written statement and photos" to the hearing. She is unaware if the Tribunal read the written statement or not. She says the written statement explains some important details regarding the case. She submits that the Tribunal should have given more weight to that report and, in the absence of evidence from the respondent at the hearing, the Tribunal's findings were unjustified.
8. As to significant new evidence being available, the appellant stated that she would like to submit the respondent's Contract of Sale as evidence. She said that this evidence was significant and showed that the respondent breached its contract which states that the tiling would comply with Australian Standards and that the respondent warrants its work would be free from fault and failure.
9. The appellant sought orders that: 1. The respondent pay the appellant an amount of $1,411.00, being the expert fees she had incurred, in circumstances where the Tribunal had made an order for the filing of expert evidence and a Scott Schedule, and the respondent failed to do so. 2. The appellant be allowed to use video evidence in relation to defective hollow tiles. 3. The respondent bear the cost of rectifying damage to the wall behind the refrigerator area. 4. The respondent pay $1,450.00 in respect of defective grouting on the staircase, the original grouting to be replaced with epoxy grouting on the whole staircase.
10. The appellant also sought an order that the respondent pay her $11,425.50. This amount was in addition to the $1,560.00 ordered by the Tribunal, and was sought in respect of the replacement of eight tiles ($350.00), repair to a wall ($764.50), the regrouting of the staircase ($1,450.00), and $8,861.00 for expert and legal fees.

Reply to Appeal

1. The respondent filed a reply to the appeal on 27 May 2016. It accepts the orders as made by the Tribunal and wishes to see an end to the matter.
2. The respondent also asked for its costs, of both the proceedings below and the appeal. It seeks costs of $12,216.90.

Relevant principles to be applied in appeals

1. The Civil and Administrative Tribunal Act, 2013 (NCAT Act) sets out the basis upon which appeals from decisions of the Consumer and Commercial Division may be made under s 80 of the NCAT Act. 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).
2. Clause 12 of Sch 4 of the NCAT Act provides leave may only be granted if the appellant may have suffered a substantial miscarriage of justice. The principles applicable to the grant of leave are set out in the decision of Collins v Urban [2014] NSWCATAP 17.

Consideration

1. It is convenient to deal with each of the four orders sought by the appellant.

Order 1- cost of expert evidence

1. There was a dispute between the parties as to whether or not the appellant had originally sought an order that the respondent pay the expert fees claimed.
2. The Appeal Panel explained to the appellant that in proceedings where the amount claimed was less than $30,000.00, ordinarily each party had to bear their own costs. However, s 60 of the NCAT Act provides that costs may be awarded if there were "special circumstances": see s 60(2). The Appeal Panel referred the appellant to s 60(3), which sets out the matters the Tribunal may have regard to in determining whether or not there are special circumstances warranting an award of costs. These are: 1. Whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings (s 60(a)); 2. Whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings (s 60(b)); 3. The relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law (s 60(c)); 4. The nature and complexity of the proceedings (s 60(d)); 5. Whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance (s 60(e)); 6. Whether a party has refused or failed to comply with the duty imposed by section 36 (3) (s 60(f)); and 7. Any other matter that the Tribunal considers relevant (s 60(g)).
3. The appellant addressed many of these matters in oral submissions. She submitted in relation to s 60(a)), that the dispute had been going on for one and a half years, that the respondent had not rectified its work, that it had made no offer to settle her claim, that its expert had provided a false and misleading report prior to the consent orders of 1 July 2015, and that the respondent had filed no evidence. In relation to s 60(b) she submitted, again, that the proceedings had taken over one and a half years. In relation to s 60(c) she submitted that the respondent had not filed any evidence. In relation to s 60(d) she submitted that the respondent had made the proceedings more complex by failing to rectify the claimed defective works. In relation to (s 60(f)) she submitted that the respondent had failed to comply with s 36(3) of the NCAT Act.
4. The Appeal Panel notes that s 36(1) of the NCAT Act provides that the "guiding principle" for the NCAT Act and its 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)(a) provides that parties to proceedings is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal.
5. The Appeal Panel does not consider that any of these matters, either individually or cumulatively, establish special circumstances.
6. The features identified cannot be said to be out of the ordinary and therefore do not constitute special circumstances: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11] and following. Rather, the proceedings were renewal proceedings of building claim, following alleged non-compliance with consent work orders. The appellant was only partially successful in her claims and no basis exists to depart from the usual position that each party should pay their own costs: s 60(1) of the NCAT Act.
7. Accordingly, this ground of appeal fails.

Order 2- Video evidence

1. The appellant submitted that she had video evidence available at the hearing of 8 March 2016. Such video evidence was not referred to by the Tribunal in its reasons for decision. The appellant did not provide the Appeal Panel with a sound recording of the proceedings, so the Appeal Panel could not determine whether or not the appellant had raised this issue with the Tribunal. After a discussion with the Appeal Panel, the appellant indicated that she did not wish to press this ground of appeal.
2. Accordingly, this ground is dismissed.

Order 3- Cost of rectifying wall behind refrigerator

1. The Appeal Panel had a lengthy discussion with the appellant about this item. The appellant conceded that the damage that she claimed did not arise from any non-compliance by the respondent with the orders she had agreed to on 1 July 2015.
2. Rather, what was explained to the Appeal Panel was that the respondent had initially installed skirting tiles in the area of the premises where the refrigerator was to be located. It did so as the refrigerator the appellant intended to install would not fit within the space if other skirting boards were installed. The appellant had not wanted tiles and had not instructed the respondent to undertake this work. Consequently, the respondent was instructed to and did remove the skirting tiles and made good the wall.
3. The work order agreed between the parties required the appellant to install the skirting boards in the finish she desired, whereupon the respondent was required to repaint the surrounding walls, match existing colours and refinish.
4. The appellant has not yet installed her desired skirting boards, apparently because her refrigerator will not fit the space. Consequently, the time for the respondent to complete painting and finishing work has not yet arisen.
5. In these circumstances, the Tribunal was correct not to award the appellant any compensation in relation to this issue.

Order 4- Defective grouting to staircase

1. In the March Decision, the Tribunal made the following findings at [29] - [30]: 28. Order 5 concerns the grouting on the tiles applied on the timber staircase Pages 46 - 48 of the applicant's documents evidences the area of complaint. The order required the respondent to remove grout and install instead flexible grout or silicone. This was because, as the respondent's representative explained, the tiles were placed over timber and there is the potential for movement which would break up standard grout. 29. The applicant complained that she was present while some of the work was carried out and she is not satisfied that the original grout was removed and she thinks that the flexible grout may have been simply applied over the top of it. If that is the case and the grout lifts as a consequence, then she may have the benefit of the seven year guarantee referred to in order 7. However, I am not satisfied that the evidence establishes that the flexible grout was applied as the applicant fears and I do not so find. I do not find that this complaint establishes any non compliance. 30. However, the photographs at pages 46, 47 and 48 showing the tiles after the rectification works were performed does seem to me to show some areas where the standard grouting is not adequate workmanship. These areas are demonstrated on the photographs by a red circle. I find that these areas do constitute minor non compliances. 31. I have therefore found a number of minor non compliances with the orders of 1 July 2015 and I have attempted to specify them above with as much particularity as I can so that the precise unsatisfactory work can be identified. The purpose is to permit the parties to prepare quotes for remedying the identified work and that work only so that a money order can be made as the remedy and I will make such a money order when quotation evidence is placed before the Tribunal. 32. I indicated to the parties that directions will be made for the filing and serving of quotations sufficient to permit the Tribunal to quantify a money order. Those directions will be found with the orders herewith. The proceedings are to be adjourned to a date to be fixed by the Registrar part heard before me following upon the directions timetable so as to permit evidence to be adduced and argument to be presented limited to the issue of the quantum of the money order.
2. As is apparent, the Tribunal found at par [30] that photographs tendered by the appellant established that "some areas where the standard grouting [was] not adequate workmanship". However, in the April Decision the Tribunal did not order the respondent to pay any compensation for this defect.
3. Rather, in the April Decision, the Tribunal noted that at pars [28] and [29] of the March Decision it "expressly found that the complaint relating to the work relating to the staircase was not established" and accordingly made no award in respect to defective grouting of the tiles to the stairs.
4. It seems clear from the above that in fact the Tribunal found that there was inadequate workmanship in relation to the tiling on the staircase, but failed to make an award of compensation.
5. The appellant claims that she should have been awarded $1,450.00. The evidence she relied on at the appeal hearing was a quotation from Tile Tech Quotation dated 22 March 2016 (Volume 2, p 50 of the appellant's bundle). The quotation was prepared in consequence of the Tribunal's directions as contemplated by the Tribunal's comments at [32]. The quotation contained two items and was in the following terms: Regrout defective tiles (8) $350 Regrout Staircase due to cracking grout- epoxy grout required due to high traffic $1450

1. The quotation from Tile Tech was the only evidence of the cost to repair the stairs.
2. The respondent submitted that the other item in the Tile Tech quotation, $350 to regrout defective tiles, was in fact the cost of the work required to rectify the stairs. Alternatively, the respondent said the sum of $350.00 would cover the cost of rectifying all items of defective tiling identified by the Tribunal in its March Decision.
3. In our opinion these submissions should not be accepted. The appellant was entitled to be compensated for the defective tiling work in the living room area: see March Decision at [8] - [16]. Having regard to the extent of the defects in the living room area as identified by the Tribunal in its March Decision, and having regard to the fact that the work costing $350.00 was for eight tiles only, in our view it seems clear that this item did not include rectification work for the stairs. This view is supported by the fact that the stair tiling was separately dealt with in the quotation and that flexible grout (a matter agreed by the original consent orders was required in the stair area: see March Decision at [28]) was specifically provided for in this item of work.
4. Further, the respondent could not point to any evidence to support its submission nor was there other evidence provided by the respondent at the original hearing to support an alternative costing for this item of claim.
5. In these circumstances, particularly where the rules of evidence do not apply, the Tribunal was entitled to have regard to the evidence in fact provided: see eg Khan v Kang [2014] NSWCATAP 48 at [30] and following. If it had done so, and in the absence of other evidence, it should have concluded that the cost of rectifying defective grout in the stairs $1,450.00.
6. Accordingly, the respondent should be ordered to pay the appellant the additional sum of $1,450.00 and the orders originally made should be varied to include this amount. To the extent necessary, leave to appeal should be granted to correct the error made. This means that the original award of $1,560.00 should be increased by an amount of $1,450.00 to $3,010.00.

Orders

1. By its reply, the respondent sought its costs. As stated above, there are no special circumstances warranting an award of costs. Further, the respondent was partially unsuccessful. Accordingly no order should be made in its favour.
2. The Appeal Panel orders that: 1. By consent, the time for the filing of the Notice of Appeal in respect of the decision of the Tribunal of 8 March 2016 is extended to 10 May 2016. 2. Leave be granted to the appellant in respect of the failure of the Tribunal to award compensation in relation to the inadequate grouting on the staircase. 3. Order 1 made 20 April 2016 is varied to read as follows: "1 Yousif Enterprises (Aust) Pty Ltd t/as World of Tiles is to pay Trudy Wong the sum of $3,010.00 immediately." 1. The appeal is otherwise dismissed. 2. No order as to the costs of the appeal. 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: 19 October 2016