Xpert Joinery Pty Ltd v Jeong

Set aside application

1. As the orders were made in the absence of the appellant, the appellant asked that the matter be reinstated pursuant to cl 9(3) of the Civil and Administrative Tribunal Regulation 2013. Both parties were afforded the opportunity to provide submissions. In his application to set aside the decision, Mr Mesto on behalf of the appellant states that he is asking the decision to be set aside because the decision was made in his absence, which resulted in his case not being adequately put to the Tribunal. In answer to the question "Why were you absent when the Tribunal made the decision", Mr Mesto states: We install mirrors as she ask and I don't think I have to hald [sic] her fault and pay back if she change her mind.
2. When asked to describe in summary the evidence and arguments he would have put to the Tribunal Mr Mesto states: We agree to install mirrors to her and its frameless mirror we did what she ask.
3. Following receipt of the set aside application, both parties were directed to file submissions. The appellant did so on 3 November 2017 by filing two pages of submissions dated 15 August 2017. (That date is probably incorrect. For the reasons appearing below, the document was probably supposed to be dated 17 October 2017. It is inherently unlikely that it was dated prior to the commencement of the proceedings.) These submissions set out the appellant's version of events relating to the installation of the mirrors, but do not refer at all to any reason why Mr Mesto, or anybody else for that matter, did not attend the hearing on behalf of the appellant company. The document states: [1] In beginning she ask us for frameless mirrors and we told her but you can't move the mirrors should be fix all the time. [2] She agree with us to be the mirrors fix and leaning against the wall and we screws them to the wall and she isn't going to move them in future. [3] She ask in beginning to lean the mirrors for 300mm away from the wall from the bottom after couple of days she change her mind and she wants them 250mm from the wall. [4] After few days she call us and told us the mirrors had been broken because the electrician he move the mirror because there is power socket in back which we don't know this in beginning. [5] All the mirrors are attached with hard glue to the 16mm HMR board which is mean the mirrors are strong enough and there is support for them. [6] The mirrors not handle and move it in proper way and need two strong persons two move it or change the place. [7] Everyone knows that mirrors made by glass and they are very sensitive materials. [8] Every time changing her mind for the work inside her salon we had agree for some kind of works but we finish in something different with extra works but we didn't charge her for the extras. [9] We send Saad Couple of time for fixing lots of things at her salon and we didn't send her any invoice. [10] We install some corner protection for the mirrors but it come out I don't know why but I think by mistake her or one of her customers pull it out without noticing. [11] Everyone knows the silicone is very strong glue with glass. [12] We inform her after first mirror broken if you going to move the mirrors you should have frame for the mirrors and we told her the cost to change all the mirrors will be $1500 + GST. She refuse and she wants them frameless. [13] We always answer her call either by myself or my partner until one of her friends he call us and start yelling and shooting bad words on us and threating us and force us to change the mirrors for free from this time we decide not answer the phone call to avoiding the trouble with him. [14] We try to call her directly twice but she didn't pick up the phone.
4. The respondent provided submissions in response on 15 November 2017. Relevantly she states: 2. The Applicant knew that the matter had been listed for hearing because on 18 October 2017 I telephoned Mohamed Mesto, a director of the Applicant company, and l said: "Why haven't you showed at the Tribunal'?" and he said "l had to work, l can't stop work to go to there. Also, I got the mail only the Thursday before the Tribunal." The Thursday before the hearing was 12 October 2017. 3. The application to set aside does not state any reason as to why the Applicant did not attend the hearing. To my knowledge the Applicant did not take any steps to adjourn the proceedings. No-one from the Applicant company contacted me before the hearing to advise of any problems about attending. 4. The orders made on 17 October 2017 were made after a hearing of my application. In that hearing I was questioned by the Tribunal member as to the way in which the mirrors were ordered and installed. 5. I strongly oppose a rehearing of this matter and ask the Member to dismiss the applicant's application. 6. The applicant did not attend the tribunal hearing GEN 17141646 on 17 October 2017 or provide any evidence to the Tribunal prior to or during the Tribunal hearing.
5. The Tribunal considered these submissions and declined to reinstate the matter. In reasons of 21 November 2017, the Tribunal stated: The application is dismissed because: Although the orders were made in the absence of the applicant the Tribunal is satisfied that the absence resulted in their case not being adequately put to the Tribunal, in the exercise of discretion the Tribunal is not satisfied that there is a real likelihood that it would be unjust to let the decision stand because: The applicant has provided no reason why they did not attend. In paragraph 2 of its submissions, the respondent indicates they knew and chose not to attend because of work commitments. See paragraph 80 Hammonds vs Ozzy Cheapest Cars Pty Ltd 2015 NSW CAT p 65.
6. While it is correct that the appellant provided no reason why it did not attend the hearing, we consider that the Tribunal erred in finding it would be unjust to let the decision stand. This is because the Tribunal failed to consider the appellant's version of events relating to the installation of the mirrors.
7. Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 was a decision of the Appeal Panel dealing with, amongst other matters, the principles to be applied in determining whether or not to set aside a decision pursuant to cl 9(3). The Appeal Panel stated at [76] that the central question in exercising the discretion is whether there is a real likelihood that it would be unjust to let the decision sought to be set aside stand. If so, it should be set aside on such terms as will minimise the possibility of injustice to the party which had obtained the original decision in its favour. The Appeal Panel also stated: 77. Justice generally requires that parties against whom orders are made must be given a reasonable opportunity of appearing and presenting their case: Cameron v Cole (1944) 68 CLR 571 at 589. In the Tribunal, s 38(5)(c) of the Act provides: (5) The Tribunal is to take such measures as are reasonably practicable: … (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. 78. If a party has been given such an opportunity, however, and has deliberately not taken it, there may well be no relevant injustice if the decision is allowed to stand: see, for example, CMT [2014] NSWCATGD 11 at [68(a)]. In this regard, the issue of why the party was absent from the hearing may be very significant: see, for example, Homeark Constructions v Hillside Excavations [2014] NSWCATAP 77 at [37], [39] and [40].
8. Paragraph 80 of Hammond, referred to in the set aside decision, notes that "[s]etting aside a decision will naturally involve a degree of prejudice to the party which was initially successful".

Notice of Appeal

1. The Grounds of Appeal are stated as: We are joinery company and we did what the customer wants as to do but if they change their mind or she found what she ask not will be working with her in salon it isn't my fault.
2. In its Notice of Appeal, the appellant states that the Tribunal's decision was not fair and equitable because: It isn't fair i am doing the jobs like the customer wants to be done and at the ends i have to pay back after she change her mind and i make se[t] aside but the judge refuse it before I meet her and in beginning i call the NCAT and i explain to them my situation and the [Tribunal] told me to send letters to the tribunal and i don't have to be attended to hearing and that what i did in beginning and i surprise the judge take decision against us because i didn't attend to hearing can you told who is the fault when i call the bureau of NCAT and he ask me to send letters and this will be more than enough. (spelling as in original)
3. That is the basis of the appellant's appeal.

Reply to Appeal

1. The respondent supports the orders made by the Tribunal. She says that the appellant had ample time to attend the hearing but chose not to. She also states that the appellant's statement that she changed her mind was "incorrect and false". She says that she asked for mirrors with frames, but that the appellant (apparently a reference to the appellant's director Mr Ayoubi) insisted that frameless mirrors were better.
2. In written submissions accompanying the Reply, the respondent gives a lengthy response to appellant's document dated 15 August 2017. She states: Paragraph 1 is not true. I did not want frameless mirrors, they brought the mirrors as frameless mirrors and said it was safe, strong enough and it looks better. Paragraph 2 is not true. They attached things like hooks on the back of the mirrors to hang on the wall. He said "It can be easy to move but be careful." Paragraph 3 is not true. We designed mirrors 300mm away from wall and installed. However, when Saad (their employee) came to fix the mirrors he pushes the mirrors toward wall (around 200mm) so I wanted mirrors positioned to be 300mm from the wall but end up the mirrors are positioned 250mm from the wail because he cannot do it. Paragraph 4 is not true. They already knew the power points will be set behind the mirrors. Also Mouhamad Ayoubi, the guy who installed the mirrors, the electrician and I discussed the positions of the power points before installing the mirrors. Mouhamad Ayoubi draws the mirrors' positions on the wall for electrician's work. Paragraph 6 is controversial. The mirrors were installed by Mouhamad Ayoubi himself. Also Saad came alone to replace the mirror that cracked and fix other mirrors. Therefore, the statement that two men were needed to move the mirror is not correct. Paragraph 8 is not true, I did not change my mind but I have to pay $2200 extra even though it was their mistake. Paragraph 9 is not true. Saad came to fix the mirrors and door handles. It was under warranty. Paragraph 10 is not true. The first time the corner protection came out Mouhamad Ayoubi said "It because Saad did not put masking tape to fix." Then, next week Saad came to fix it again, he put masking tape the corner of the mirrors and said "Do not take it off two days." I leave it four days and as soon as I took off the masking tape the protection came with the tape. Paragraph 12 is not true. We never had this conversation as I have always asked for framed mirrors. Paragraph 13 is not true. My friend did not threat them. Since 23 September 2017 Mouhamed Ayoubi does not answered my phone and Mohamed Mesto answered "I do not know. You should call to Mouhamed Ayoubi to talk." All the time. My friend called Mouhamed Ayoubi and asked him to fix the mirrors as soon as possible but Mouhamed Ayoubi said "I'm not going to do anything for her shop and If you call me again I will call to police to talk about you threating me as kill me." Then hang up the phone. My friend does not know where he lives or work, how can he can kill him? Paragraph 14 is not true. They did not call me even though they promised me call me back.

The appeal

1. Both parties appeared at the appeal hearing in February. The appellant was represented by its owner Mr Mohammah Mesto. He admitted quite freely that he was aware of the Tribunal hearing, but was not able to attend, although he did not say why. He said that he had contacted the Registry before the hearing to seek an adjournment of the hearing. He says he was told that he should write to the Registry giving the reasons, that the adjournment would be granted and that he would not have to attend. He said that he did so, and provided a letter to the Registry two days before the hearing. He said that he had no copy of his letter, and the Registry did not confirm in writing that the hearing had been adjourned. However, he said that if we looked at the file for the Tribunal hearing, a copy of the letter should be there. The other important matter that the appellant raised at the hearing was that it had not been paid for its services.
2. The respondent told us that she had rung the Registry, and that she had been informed that no request for an adjournment had been made.
3. With the agreement of the parties, we inspected the Tribunal file. There was a copy of the document dated 15 August 2017 on the Tribunal file, stamped as having been received by the Registry on 17 October 2017. There is handwriting on this letter, presumably written by the Member who heard the Tribunal hearing, which states "Received at 2.45 after I had dealt with the matter".
4. However, this letter does not seek an adjournment, for any reason, or at all. What the letter does contain, is Mr Mesto's account of the transaction, the installation of the mirrors, and his discussions with the respondent. The letter is in fact a copy of the letter dated 17 August 2017 which is referred to above in the set aside application. This is consistent with what Mr Mesto told us at the April hearing, namely that if he filed his evidence it would be considered by the Tribunal.
5. It is to be noted that Mr Mesto's position as to whether he had sought an adjournment was slightly inconsistent between the two appeal hearings. However, we do not consider that he was dissembling in any way. We accept that he thought that he did not have to attend the Tribunal hearing. His confusion arose from a lack of familiarity with Tribunal processes and a lack of legal representation.

New hearing

1. Section 80 of the NCAT Act provides: (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
2. At the conclusion of the hearing in February, we reserved our decision. On reflection, we considered that one approach (consistent with the guiding principle that the Tribunal must facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36 of the Civil and Administrative Tribunal Act 2013 (NCAT Act)), was to deal with the internal appeal by way of a new hearing and to permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given: NCAT Act. The parties were notified of this and we made directions that: 1. the appellant was to file any further materials (including statements, photographs, invoices, quotations and submissions including but not limited to the reasons why it did not appear at the Tribunal hearing on 17 October 2017, the merits of the respondent's claim and the appellant's own claim as to outstanding monies) that it wished to rely on in the appeal on or before 12 March 2018; 2. the respondent was to file any further materials (including statements, photographs, invoices, quotations and submissions including but not limited to the reasons why the appellant did not appear at the Tribunal hearing on 17 October 2017, the merits of her claim and the appellant's own claim as to outstanding monies) in response on or before 2 April 2018; 3. the appellant was to file any materials in reply on or before 13 April 2018,
3. and listed the matter for further hearing on 16 April 2018.
4. Neither party filed any further evidence or submissions. However, they both attended the April hearing and produced some additional documents. One of these documents was a quotation dated 3 July 2017 provided by the appellant to the respondent. As the respondent was on notice of the appellant's version of events, and had responded to this in her Reply submissions, in an effort to do justice to the parties and to allow for the just, quick and cheap disposition of the real matters in dispute, we allowed each of Mr Mesto and Mr Ayoubi, and the respondent, to give brief oral evidence at the hearing.
5. In summary, it was Mr Ayoubi who had the critical conversations with Ms Jeong. He says that she specifically asked for frameless mirrors, and that was what the appellant installed. He says that the respondent accepted these mirrors. Ms Jeong denies this. She says that she had asked for framed mirrors. We note that the quotation of 3 July 2017, which Ms Jeong agrees she received and accepted, was silent as to whether or not the mirrors were framed or unframed.
6. As we have stated, the critical question is what form of mirror was to be supplied by the appellant; where they to be framed, or frameless? We have had the benefit of seeing and hearing from Mr Ayoubi and Ms Jeong. At one point the respondent told us that she had not realised that she had ordered mirrors at all, but given the terms of the quotation that she accepted, we do not accept that as a credible answer.
7. We are not satisfied, on the balance of probabilities that the appellant was asked to provide framed mirrors. We are satisfied that it was asked to provide frameless mirrors. In any event, if we are incorrect about either of these conclusions, we note that the respondent accepted the provision and installation of the unframed mirrors. According to the applicant's application to the Tribunal, the following day one of these mirrors was damaged by an electrician.
8. Having listened to the parties' oral evidence and examined their filed documents, we make the following relevant findings: 1. on or about 3 July 2017, following discussions, the appellant offered to provide a "shop fitting" to the respondent's hairdressing salon in Rosebery. The "shop fitting" consisted of the installation of a timber wall (including gyprock and painting), the installation of cabinets, the installation of laminated benchtops and the provision of mirrors; 2. the total amount for the labour and materials was $17,750, 10% GST, a total of $19,250.00; 3. the quotation provided for terms of payment of 40% on accepting the quotation, 30% on delivery and 30% upon completion of the works; 4. shortly after receiving the quotation, the respondent provided the 40% deposit; 5. on or about 3 August 2017, four frameless mirrors were installed at the respondent's premises; 6. on or about 4 August 2017, a mirror was cracked when the respondent and an electrician moved one of the mirrors. The appellant's Mr Ayoubi told the respondent that it was all her fault as she moved the mirrors, and the respondent said that the mirror was damaged because it did not have a frame. 7. the respondent paid the appellant $280 for a replacement mirror. She did not ask the appellant to replace the unframed mirrors with framed ones; 8. the replacement mirror was provided on 29 August 2017. The appellant installed "Perma Child Safety Corner Protectors" on this and the other mirrors; 9. the "Corner Protectors" came off, and were replaced again by the appellant on 8 September 2017.
9. It was not disputed at the hearing that: 1. the Tribunal had jurisdiction to hear and determine the application pursuant to s 79J of the Fair Trading Act (FTA); 2. the application was a consumer claim: FTA, s 79E; 3. the respondent was a consumer and the appellant a supplier within the meaning of s 79D of the FTA; 4. the Australian Consumer Law (ACL) text, as in force from time to time, applies as a law of New South Wales, FTA, s 28.
10. The Act provides for consumer guarantees when a consumer buys goods and services. In summary, the seller (here the appellant) guaranteed that: 1. the goods would be of acceptable quality; 2. the goods would be fit for a particular purpose; 3. the goods would match their description; 4. the goods will match the sample or demonstration model; 5. the supplier would honour any express warranties; 6. the consumer would have title to the goods; 7. the consumer would have undisturbed possession of the goods; 8. there are no undisclosed securities on the goods.
11. Save for the allegation that the appellant promised a 12 month warranty, the respondent did not refer to any ACL consumer guarantees in her application. It might be thought however that the relevant guarantees could be (1), (2) and (3) above. Guarantees (4) to (8) would not appear to have application on any view.
12. However, it is not necessary to descend into an examination of the minutiae of these consumer guarantees. The essence of the respondent's case was that she was not provided with what she bargained for, namely four framed mirrors. As we have found that it was a term of the contract between the parties that the appellant supply the respondent with unframed mirrors, and that unframed mirrors were in fact supplied, we see no breach of this term of the contract between the appellant supplier and the respondent consumer. Nor do we see any breach of any relevant ACL consumer guarantee. Accordingly, we see no reason why the appellant should have been ordered to pay to the respondent $1,512, or to return to her premises to remove the mirrors.
13. In our view, the orders of the Tribunal should be set aside and in lieu thereof we should order that the original application be dismissed.

Other

1. Finally, we note that the appeal was filed out of time. The Tribunal's orders were made on 17 October 2017, and the decision received by the appellant on 21 October. The appellant had 28 days to file an appeal, which should have been filed on 18 November. The Notice of Appeal was filed on 30 November. As the respondent did not raise this issue at the hearing and did not indicate in her Reply to Appeal that she objected to the appeal being lodged out of time, we extend the time for the filing of the Notice of Appeal to 30 November 2017.

Order

1. Accordingly, the orders of the Appeal Panel are as follows. 1. extend the time for the filing of the Notice of Appeal to 30 November 2017. 2. pursuant to s 80(3) of the Civil and Administrative Tribunal Act, the Tribunal decides to deal with the internal appeal by way of a new hearing. 3. set aside the orders of the Consumer and Commercial Division of the Tribunal of 17 October 2017 in application GEN 17/41646 and in lieu thereof order that the application be 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: 23 April 2018