Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Muscat v TS Spraypainting Pty Ltd [2020] NSWCATAP 285 Hearing dates: 15 December 2020 Date of orders: 23 December 2020 Decision date: 23 December 2020 Jurisdiction: Appeal Panel Before: S Westgarth Deputy President The Hon F Marks Principal Member Decision: (1) The appeal is allowed (2) The order of General Member Towney made 3 September 2020 is quashed. (3) The proceedings are referred to the Tribunal differently constituted for reconsideration having regard to such evidence including any additional evidence as the Tribunal may, in its discretion, allow. Catchwords: APPEAL- motor vehicle repair – failure to identify the contract between the parties- failures to give adequate reasons – appeal upheld – proceedings remitted for reconsideration before the Tribunal differently constituted Legislation Cited: Civil and Administrative Tribunal Act ss 80(2)(b), 81 Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: Shawn Muscat (Appellant) TS Spraypainting Pty Ltd (Respondent) Representation: S Giunta (Agent) (Appellant) T Sly (Director) (Respondent) File Number(s): AP 20/40593 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 3 September 2020 Before: G Towney General Member File Number(s): MV 20/15124 Reasons for decision Background 1. The appellant in these proceedings, Shawn Muscat, filed an Application in the Consumer and Commercial Division of this Tribunal seeking compensation against the respondent TS Spraypainting Pty Ltd, for unsatisfactory workmanship arising out of certain repair work carried out by the respondent on a 38 year old motor vehicle. The work consisted of carrying out some repairs to the existing bodywork to enable the vehicle to be spray-painted and applying spraypainting. The proceedings came on for hearing before a Member of this Tribunal on 3 September 2020. After conducting a hearing and having received a volume of documentation the Member dismissed the application. The basis for doing so was that the appellant had not satisfied the Tribunal to the requisite standard that the respondent had breached its contract with him in carrying out the work on the vehicle or that the respondent had breached applicable consumer law. 2. The appellant seeks leave to appeal from this decision on the basis that it was not fair and equitable and was against the weight of the evidence. 3. In broad terms the appellant alleged before the Member that the workmanship was of poor quality and standard. Mr T Sly, the principal of the respondent alleged that he had originally informed the appellant that the work that he wanted to be done would cost around $13,000, but the appellant said that he did not want to pay this amount and they negotiated a reduced price of $6490 but for a reduced amount of work. The appellant denied that he had agreed to a reduction in the standard of the work to be completed. He paid an initial deposit of $1000 and the balance after Mr Sly had told him the work had been completed but before the vehicle was picked up. 4. For completeness we note that both parties retained experts to give evidence. Each expert produced a written report which was in evidence before the Member. However, the Member indicated during the hearing that she did not require oral evidence, at least from the appellant's expert. In general terms both experts identified a number of defects in the work carried out by the respondent. In essence, he had attempted to spray paint a vehicle which had been spray-painted previously on many occasions, with associated filling and repairs, and in which there was evidence of corrosion which required repair. Both experts said that a proper repair would have cost something of the order of $13,000. In effect, the work carried out was, to use the words of the appellant's expert "a waste of time". 5. In her reasons for decision the Member highlighted a fundamental difficulty in considering the appellant's application, which was created by uncertainty as to the terms of the contract between the parties. The Member found that the only documentary proof consisted of a Tax Invoice issued by the respondent to the appellant dated 20 December 2019. It described 4 items of work to be carried out, and 1 item of parts to be supplied and fitted. The total cost was $6490 inclusive of GST. The Member found that there were two significant notations at the end of the document being 1. Repaired location are only spots with warranty due to painting over old paint 2. Painted locations have warranty unless cracking due to painting over old paint and experiencing a lot of bog work under old paint which created paint cracks and paint chipping off. 1. In her reasons for decision the Member referred specifically to these notations as having an impact on the nature and extent of the work that the respondent was required to carry out under the contract. The Member said, in part The Tribunal notes that the original quote/invoice notes that warranty is on repair locations only, due to painting over old paint, unless cracking due to painting over old paint and bog under old paint. 1. It is clear that the existence of these notations informed the decision of the Member and infected her reasoning. The terms of the contract between the parties 1. In his grounds of appeal the appellant said that the terms of the contract did not include the notations referred to by the Member, and that the Decision appealed from was based on the wrong contractual terms. 2. During the course of the hearing of these appeal proceedings conducted by telephone on 15 December 2020 we gave leave to the appellant to be represented by his wife Ms S Giunta. Mr T Sly the principal of the respondent who had been involved in all the discussions with the appellant represented the respondent at the hearing. We had access to voluminous documentation filed by each of the parties and information given to us by those representing them. 3. The material produced to us shows that the only written record of the contract between the parties was issued following discussions between the appellant and Mr Sly. It consists of a document on the letterhead of the respondent entitled "Quote 19" dated 20 December 2019 in the sum of $6490 inclusive of GST. Page 1 of that document contains details of work to be performed under 5 different items. The second page is blank. There is no reference on that document to any of the notations referred to by the Member in her decision, and which we have set out in [5] above. 4. The first occasion on which any documentation was issued by the respondent containing these notations is to be found in a Tax Invoice No 136 issued on the letterhead of the respondent said to be dated 20 December 2019 but containing the additional reference "Due 31/01/2020." The notations appear on the second page of the document under the heading "Notes" in the following terms Invoice generated from quote: 19 Added on after official quote Repaired locations are only spots with warranty due to painting over old paint Painted locations have warranty unless cracking due to painting over old paint and experiencing a lot of bog work under old paint witch (sic) created paint cracks and paint chipping off 1. Mr Sly informed us during the hearing that this document containing the above notations was first created by him in January 2020 "as I was getting into the work". Accordingly, these notations did not come into existence until after the respondent had issued the document entitled "Quote 19", after the appellant had paid a deposit of $1000, and after the respondent had commenced work on the vehicle. These notations were never part of the initial contractual terms between the parties. They were, on the evidence, never accepted by the appellant, and therefore they do not form any part of the contract which is at the heart of these proceedings. 2. It follows that the Member was in error in identifying the terms and conditions of the contract upon which the appellant was relying. As we have earlier pointed out, these terms informed and infected the reasoning of the Member and were fundamental to her decision. The error in identifying the terms and conditions of the contract is an error of law. Accordingly, the appellant is entitled to appeal as of right. (See section 80(2)(b) of the Civil and Administrative Tribunal Act). 3. This error was fundamental to the reasoning of the Member. The controversy between the parties must be resolved by reference to the actual terms of the contract between them. In that this has not occurred, it now becomes necessary for the application to be considered in light of the actual terms of the contract. The decision of the Member must be set aside, and the appeal allowed. 4. We shall discuss the later course of these proceedings shortly. Other matters relevant to the proceedings and the appeal 1. There were a number of other matters raised by the parties during the course of the original hearing, and before us on appeal. 2. The appellant said that he had specified that he wanted the same existing colour paints to be applied to the vehicle, and indeed this is referred to in the initial quotation. The description was white on the "top" and "bottom" and "marron middle." (We suspect that this is a reference to maroon colour, but nothing turns on this). The appellant said that he had provided the chosen coloured paint to the respondent. The respondent said that he was unable to match that paint, and no longer had access to the original colour once he had spray-painted all of the vehicle white. 3. In her reasons the Member dealt with this by stating the Tribunal acknowledges the applicant's claim that the respondent used the wrong paint colour, but in again referring to the invoice/quote it notes that only "white top marron middle and white bottom" are recorded. Therefore on the evidence before it, the Tribunal cannot make a payment for…… wrong paint colour 1. We do not understand how the above reasoning deals with this aspect of the appellant's claim. There is a clear reference to two different colours in the quotation. There is no explanation that links the terms of the quotation to the evidence to justify rejection of this element of the claim. 2. The appellant had alleged that a door handle had been broken whilst the vehicle was with the respondent being worked on and he wanted compensation to repair it. The respondent alleged that the appellant's employee had broken the handle when he picked the vehicle up. The Member dealt with this aspect of the claim as follows In relation to the door handle, the respondent denies that he damaged the door handle, and says that it was done by the applicant's employee on pickup. The Tribunal notes that this is denied by the employee. However, on the evidence before it theTribunal cannot be satisfied that the door handle was broken in the repair process, especially considering the age of the car and the mechanics. As such, no award is made for the door handle. 1. Absent any suggestion that the handle broke spontaneously because of an age related or mechanical problem, the resolution of this claim would need to be determined by referring to the available evidence concerning the attendance of the appellant's employee at the time that he picked the vehicle up. There is no such reference in the Member's reasons. 2. The appellant claimed that when the vehicle bonnet closed this caused paint to chip off. The member dealt with this aspect of the claim as follows In relation to the bonnet paint chipping, the respondent has submitted that the paint is chipped because there are so many layers of paint on the car, not due to poor workmanship. The respondent referred to his expert report…… (which recorded) film thickness readings all above the recommended level. On the evidence before it, the Tribunal cannot conclude that the bonnet paint is chipping due to poor workmanship, and finds it more likely that (sic) not it is due to thick paint on the car. 1. The expert reports note that there is chipping on the bonnet contributed by two causes, namely the thickness and bubbling of the paint and underlying corrosion. Neither expert report deals with whether paint has chipped off by reason of the bonnet closing. On one basis, this claim, in that it is based on a particular cause might be said to have failed because there is no evidence of the causal relationship. On the other hand, the state of the bonnet, in common with other features of the vehicle, highlight the possible inappropriateness of the respondent having quoted to perform the work that he did if it is correct that the work was a "waste of time". In any event the Member does not appear to have dealt with either of these bases in determining this aspect of the claim. 2. The Member referred in her reasons to a claim made by the appellant "that the roof lining should be paid for." In dealing with this claim the Member said In relation to the claim for reimbursement of roof lining, the Tribunal again refers to the invoice/contract. The document records "remove and refit necessary parts/panels…roof lining and pillar covers." From this document the removal of the roof lining appears to be part of the written agreement. Once again, on the evidence before it, and noting the burden of proof, the Tribunal cannot establish a finding in the applicant's favour. 1. It is impossible to comprehend the nature and extent of this part of the appellant's claim from the reasons of the Member, and therefore to comprehend the reasons of the Member in determining that the appellant should not succeed. It is important that where a claim is dealt with that the reasons should inform a reader about the nature of the claim and why it is rejected, even in the briefest of terms. 2. It is possible that other matters of contention between the parties will need to be determined dependent upon a final determination of the terms and conditions of the contract. For example, the respondent rejected one aspect of the appellant's claim of poor workmanship which was in an area adjacent to a trailer attached to the vehicle. In the hearing before us the appellant said that he had no objection to the trailer being removed from the vehicle; the respondent asserted to the contrary. This is a factual matter which may need to be resolved. There is no reference to this matter in the reasons of the Member, presumably on the basis that she had found that overall the appellant's claim should not succeed based on her erroneous understanding of the terms of the contract. The disposal of the appeal proceedings 1. We have previously found that the Member's reasons involve an error of law and that on this basis the appeal must be allowed. It follows that the order of the Member should be quashed. 2. We have also found that there were deficiencies in the reasoning of the Member concerning a number of discrete elements of the appellant's application. 3. The orders which are available to us in disposing of these appeal proceedings are set out in section 81 of the Civil and Administrative Tribunal Act 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following— (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance. 1. We have given consideration to whether in the interests of the just cheap and quick disposal of these proceedings we are in a position to determine them ourselves having regard to such evidentiary material as is before us. Unfortunately, we were not able during the conduct of the appeal proceedings to devote sufficient time to explore with the parties the details of a number of the specific claims brought by the appellant which we have outlined above in [17] and following. Furthermore, our finding concerning the written terms and conditions of the contract between the parties will require a more detailed examination of the available evidence, especially the experts' reports, and may arguably involve the parties in being given an opportunity to adduce additional evidence. In the circumstances we intend to refer the proceedings for reconsideration by the Tribunal and leave it to the discretion of the Tribunal whether and to what extent the parties might be permitted to adduce additional evidence. The Tribunal should be differently constituted for the purpose of any reconsideration to avoid any suggestion of bias. Orders 1. We make the following orders 1. The appeal is allowed 2. The order of General Member Towney made 3 September 2020 is quashed. 3. The proceedings are referred to the Tribunal differently constituted for reconsideration having regard to such evidence including any additional evidence as the Tribunal may, in its discretion, allow. ********** 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 December 2020