Civil and Administrative Tribunal New South Wales Medium Neutral Citation: JIH Building Design Pty Ltd & Anor v Raffie [2021] NSWCATAP 32 Hearing dates: 1 February 2021 Date of orders: 17 February 2021 Decision date: 17 February 2021 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President P H Molony, Senior Member Decision: (1) Appeal upheld (2) The order made on 1st October 2020 is set aside (3) The Appellant is to pay to the Respondent the sum of $3700 immediately. (4) The application of the Cross Appellant to extend time for lodgement of the Cross Appeal is refused. (5) The Cross appeal is dismissed. Catchwords: ADMINISTRATIVE LAW- Civil and Administrative Tribunal (NSW) - question of law – construing terms of agreement. Cl12 sch 4 leave grounds. Legislation Cited: Civil & Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 Fair Trading Act 1987 (NSW) Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: JIH Building Design Pty Ltd (First Appellant) Jason Harb (Second Appellant) Abiedah Raffie (Respondent) Representation: JIH Building Design Pty Ltd (Self-Represented) Jason Harb (Self-Represented) Abiedah Raffie (Self-Represented) File Number(s): AP20/45460 and AP 21/02500 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: Not applicable Date of Decision: 01 October 2020 Before: General Member D Ash File Number(s): GEN 20/17827 REASONS FOR DECISION Background 1. These two appeals arise out of a decision published on 1st October 2020 and made in the Consumer & Commercial Division of the Tribunal by which the Tribunal ordered that JIH Building Design Pty Ltd (the second respondent in those proceedings) pay to Abiedah Raffie (the Applicant in those proceedings) the sum of $6780. 2. On 29 October 2020 JIH Building Design Pty Ltd (the Appellant) lodged a Notice of Appeal (which we will refer to as the Appeal) and on 15 January 2021, Abiedah Raffie (who we shall refer to as the Respondent) lodged a cross-appeal. 3. As Jason Harb was a party to the first instance proceedings in the Consumer & Commercial Division he is a party to both the Appeal and the Cross-appeal. 4. The purpose of the appeal brought by the Appellant is to seek to have the order for the payment of $6780 set aside. 5. The cross-appeal was filed out of time and for the reasons that we will set out later, that appeal is dismissed because we are of the opinion that time for lodgment of that appeal should not be extended. The Decision at First Instance 1. The decision at first instance (the Decision) insofar as it is relevant to the appeal may be summarised as follows: 1. The application before the Tribunal concerned a claim by the Respondent alleging failures by the Appellant in relation to a contract where the Appellant was to provide design services to the Respondent. The Tribunal stated that it was satisfied that it had jurisdiction to determine the claim as a consumer claim under Part 6A of the Fair Trading Act (NSW) [1]. 2. The Appellant agreed to provide certain services to the Respondent as recorded in a letter dated 5 September 2019 issued by the Appellant and given to the Respondent. On the same day the Respondent accepted the proposal contained in the letter. The Decision identifies the documents constituting the agreement between the parties: see paragraphs 8 to 11 of the Decision. 3. The Decision records that the parties' agreement continued until February 2020 but "did not reach fruition" [14]. 4. The Decision records that the Respondent made a number of claims against the Appellant. Some of those claims were rejected but three were accepted, resulting in the order against the Appellant recorded above. 5. The first order, which is the subject of this appeal, concerns a claim for the return of $550 paid by the Respondent to the Appellant for the preparation of a strata plan. The Tribunal held that this charge was not "an additional requirement from Council" and that the Appellant had to prove that the parties had agreed to vary their arrangement such that the plan would be prepared upon payment of $550. The Decision records that the Appellant was unable to prove such a variation [30(2)] and as a consequence held that the Respondents' claim is allowed. 6. The second claim brought by the Respondent was for the return of $2530 for "sewer feasibility". The Tribunal held at [30(3)(c)] that the Respondent alleged that she had made a payment to a third party called "Sydney Water and Sewer". The Tribunal held at [30(3)(e)] that the Appellant was unable to establish that this payment was made for additional work required by Council and found that the Respondent was entitled to an order that the Appellant pay that sum to the Respondent. The Tribunal appears to have accepted the contention of the Respondent that her agreement with the Appellant involved services being provided for a fixed fee and that the Appellant was only entitled to charge for additional work if it was necessary to satisfy a requirement by Council. This finding was based upon the fact that the Respondent had written on the acceptance of the Appellant's fee proposal the words "Accepted as a fixed price of $24,720, subject to any additional requirements from Council." 7. The third claim, the subject of this appeal, concerns the finding (at [31]) of the Decision that the Respondent had paid $3700 to the Appellant in respect of the Council's application fee on entering into the agreement with the Appellant. Later, when the relationship between the parties broke down, the application with Council was withdrawn and a refund was paid by the Council to the Appellant. The Appellant submitted that it was entitled to keep a portion of the sum of $3700 to pay for an invoice it had issued dated 19 June 2020 for $2200 plus GST for "additional design variations". The Tribunal noted that the invoice had been issued after the relationship had broken down and after the Respondent had commenced proceedings in the Tribunal by lodgement of her application. The Tribunal found that the Appellant had not shown that the invoice arose from a Council requirement and that accordingly, the Appellant was not justified in withholding a portion of the sum of $3700 [37]. 8. In the result the Tribunal ordered that the Appellant pay the Respondent $6780, comprising $550 plus $2530 plus $3700. Notice of Appeal 1. The grounds set out in the Notice of Appeal may be summarised as follows: 1. The strata plan claim for $550: the Tribunal erred by not finding that a separate and subsequent agreement was entered into between the parties. 2. The sewer feasibility claim for $2530: the Tribunal erred in ordering restitution against the Appellant in circumstances where the money was not paid by the Respondent to the Appellant but was paid by the Respondent to a third party. The Appellant had never been in possession of that money. 3. The claim for $3700 being the Council refund: the Tribunal erred in not recognising that the Appellant was entitled to exercise a lien to those monies for the payment of its invoice dated 19 June 2020 for additional work and for payment of a third party invoice pursuant to a separate agreement between the Appellant and Respondent. The Tribunal also erred in not taking into account that the amount of $1401.50 had already been refunded by the Appellant to the Respondent. Reply to Appeal 1. The Respondents' Reply to Appeal may be summarised as follows: 1. The strata plan was part of the original scope of works and should have been supplied as part of the fixed price contract. 2. The need for a sewer feasibility study was part of the original scope of works. The Respondent had already engaged KFW Infrastructure Professionals (KFW) and had paid them $2530. The Respondent claims that the Appellant was obliged to reimburse her for the cost of $2530. 3. The invoice for $2200 ($2420, inclusive of GST) is disputed. It was created after the relationship had broken down and was never sent to the Respondent. The Respondent acknowledged that she had received $1401.50 being part of the Council refund that should have been returned in full. The Appeal and the Appeal Hearing 1. At a call-over on 13 November 2020 the Appeal Panel made directions for the parties to exchange evidence and submissions in support of and in opposition to the Appeal by the dates specified in those directions. The parties subsequently filed and served emails in support of and in opposition to the Appeal in a rather haphazard way and not entirely in conformity with the directions. Nevertheless, at the hearing of the appeal we were taken to the particular documents the parties relied upon and neither party objected to the provision by the other party of material filed outside the time required by the Appeal Panel directions. The Parties' Submissions Strata plan fee $550 1. Mr Harb, representing the Appellant, submitted that the strata plan was never part of the original scope of works and that he had made that clear in correspondence when the request for the strata plan was made in October 2019. He referred to his email of 23 October 2019 in which he stated that the DA application did not include the strata subdivision and that he could "generate a concept plan for round the $550". That email came after an email from the Respondent also dated 23 October 2019 in which the Respondent stated that her solicitors had requested a "draft strata plan of subdivision". 2. The Respondent submitted that the provision of a strata plan was part of the original fixed price scope of works. She said that she had paid the money to the Respondent because she felt she was "held at ransom". Sewer Feasibility 1. Mr Harb submitted that the Decision contained an error in making the finding at paragraph 30(3)(c) that there had been a payment made to Sydney Water and Sewer by the Respondent. The Respondent confirmed during the hearing of the appeal the acknowledgement made in her Reply that there had been an error made in her "financial dashboard" in suggesting that Sydney Water and Sewer had been paid. In fact, she had not paid that company any money. Rather she had previously obtained a quote from KFW and had paid them. Refund of $3700 from Council 1. During the hearing of the appeal Mr Harb confirmed that the money received from Council is refundable to the Respondent, subject to his claim for outstanding amounts as recorded in his invoice for $2240. He submitted that the basis for that invoice was that he was entitled to charge for "additional design variations" in circumstances where the number of design variations exceeded the number contemplated by the fixed price agreement. The fixed price agreement (referred to earlier dated 5 September 2019) included a charge for "design concept" and stated "Max three design variations". Mr Harb submitted that the charge made was for design variations in excess of the three contemplated by the agreement. 2. The Respondent submitted that in fact the Appellant had completed only one design plus one variation and submitted that evidence to that effect had been before the Tribunal at first instance (see the affidavit of Allan David Tinker dated 21 April 2020 – para 30). 3. In his submissions and oral submissions in reply, Mr Harb stated that he had in fact received $4041.50 from the Council, had remitted $1401.50 to the Respondent and therefore still held $2640. The Respondent disputed those figures and claimed that she had paid not only $3700 but also a further sum of $2100. The Cross-Claim 1. At the hearing of the appeal we only considered whether the cross appeal should be refused on the basis that it had been filed out of time, or accepted upon the basis that we should extend time for filing that Notice of Appeal. We indicated to the parties that if we were of the view that time should be extended, then there would need to be further directions and a further hearing concerning the merits of the cross-appeal. In support of her contention that time should be extended the Respondent (i.e. Cross-Appellant) said that she initially thought that the orders were binding and that she had no further redress. She was not able, in our view, to adequately explain why on receipt of the Appellant's Notice of Appeal on or shortly after 29 October 2020 she did not then file a Notice of Appeal. During the hearing she said that she made some enquiries on the Tribunal's website and found the issue too complicated. 2. A review of the Notice of Cross-Appeal reveals that it includes claims which were not the subject of the proceedings at first instance. For example, it includes claims for the cost of post-hearing enforcement proceedings in the Local Court We have decided not to extend time for the lodgement of the cross appeal and to dismiss it. Our reasons are set out in [29] below Consideration 1. For a party to be successful in an appeal from a decision made in the Consumer & Commercial Division of the Tribunal the party must be able to establish that the Decision contains an error of law or that a substantial miscarriage of justice has occurred. Appeals from that Division are regulated by s 80 of the Civil & Administrative Tribunal Act 2013 NSW (the NCAT Act) and by cl 12 sch 4 the NCAT Act. The Claim for the Strata Plan 1. The Appellant's contention was that there was a separate agreement between the parties for the preparation of a strata plan for the sum of $550. The Respondents' contention was that the agreement between the parties of 5 September 2019 included the requirement to provide a strata plan. The Tribunal did not make an express finding as to whether the agreement of 5 September 2019 included the requirement to produce a strata plan . The Tribunal stated that the "fee not appearing to be upon an additional requirement from Council, the Respondents have to prove on the balance of probabilities, and by reference to evidence, that the parties agreed to vary their arrangement so that the Applicant agreed to pay an additional $550 for a fee that she was not otherwise required to pay." 2. In our view, the Tribunal has misconstrued the terms of the agreement and as a consequence there has been an error of law. The agreement set out in brief terms the work to be undertaken and the fee to be allowed for such work. The agreement included the statement written on it by the Respondent that the proposal was "Accepted as a Fixed Price of $24,720 subject to any additional requirements from Council." The Tribunal appears to have interpreted the agreement to mean that there could not be any increase in the fixed price unless there was an "additional requirement from Council". However, clause 5.2 of the terms and conditions accompanying the Appellants letter states that the Appellant reserves the right to change the fee if a variation to the services is requested. We take this to mean that if the parties were to agree to additional services being provided (i.e. additional to those services contemplated by the agreement of 5 September 2019) then, as part of that agreement for additional services the parties could agree to an additional fee. 3. Here, the Tribunal did not assess the evidence submitted by the Appellant concerning the request for the strata plan made in October 2019, the Appellant's assertion in the correspondence that it was an additional item and that the Appellant would charge $550, nor the circumstances of the payment by the Respondent of that sum. 4. Under the NCAT Act we have power to make findings that the Tribunal at first instance would have made had the Tribunal considered the matters which were not appropriately considered at first instance: see s 81(2). In this case we are of the opinion that the evidence referred to earlier establishes that: 1. The scope of works in the agreement of 5 September 2019 did not include provision of a strata plan. 2. The Respondent requested a strata plan. 3. The Appellant said that it would provide a plan for $550. 4. The Respondent paid that sum and the plan was provided. 1. In the circumstances, we are of the opinion that the parties agreed that the plan would be provided for the sum of $550 and that the Tribunal was in error in stating that there was no evidence that the parties had agreed to vary their arrangement. There is no evidence to support the contention of the Respondent that she paid because she was held to ransom. The Sewer Feasibility Study 1. The Appellant contends and the Respondent concedes that the Decision contains an error in stating that the Respondent paid Sydney Water and Sewer whereas in fact no such payment was made. Accordingly, the Tribunal was in error to order the refund of money thought to be paid to Sydney Water and Sewer when in fact it had not been paid. The Respondent also made a claim for refund of the same amount paid to KFW. That claim was rejected : see[30(3)(c)]. The reason the Tribunal gave was that the Respondent had engaged KFW prior to the agreement with the Appellant, and that KFW had not been engaged pursuant to the agreement between the Appellant and the Respondent. This claim does not arise in this appeal. The Council refund of $3700 1. The parties put to us conflicting evidence as to what had been paid and received. The Respondent said that she had paid $5800 to the Appellant. Mr Harb said that the Appellant had held $4041.50 ( being money returned from the Council and the Department of Planning) until he had paid the Respondent $1401.50, and that therefore he could potentially only be liable for $2640. He also claimed that he was fully entitled to payment of the invoice for $2420. 2. The Appellant has not satisfied us that the Tribunal made an error of law in its decision to order the return of $3700 to the Respondent, nor has the Appellant demonstrated that a substantial miscarriage of justice has occurred as required by cl12 Sch 4 of the NCAT Act. Both parties sought to reargue through the submission of conflicting evidence that a different amount was owing without demonstrating that an error of law or a substantial miscarriage of justice has occurred. The Decision records at [36] that there was insufficient evidence to establish that the Respondent accepted a separate agreement for the Appellant to undertake further design variations. We are not satisfied that the Tribunal was in error in coming to that conclusion. In our view this aspect of the appeal must be dismissed. 3. The result of our findings is that the orders of the Tribunal at first instance should be set aside and in its place, there should be an order for the sum of $3700 to be paid by the Appellant to the Respondent. For the reasons set out in the final paragraph the cross appeal will be dismissed. 4. Accordingly, the orders of the Tribunal are 1. Appeal upheld 2. The order made on 1st October 2020 is set aside 3. The Appellant is to pay to the Respondent the sum of $3700 immediately. 4. The application of the Cross Appellant to extend time for lodgement of the Cross Appeal is refused. 5. The Cross appeal is dismissed. Cross-Appeal 1. We are of the opinion that the cross-appeal should be dismissed on the basis that it has been filed out of time. In coming to this view, we have had regard to the length of the delay ( about 6 weeks) which is excessive having regard to the requirement to lodge an appeal within 28 day from receipt of the Decision: see cl25 of the Civil and Administrative Tribunal Rules 2014 NSW. We have had regard to the reason for the delay, which was largely due to the Respondent not making adequate enquiries as to what she needed to do. A further factor we have taken into account is that the Cross Appeal includes claims which have arisen since the first hearing and do not relate to the merits of the Decision itself. Finally it is not apparent that an injustice will arise by refusing to extend time. ********** 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: 17 February 2021