Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sly Boogie Customs Pty Ltd v Duggan [2021] NSWCATAP 72 Hearing dates: 9 March 2021 Date of orders: 24 March 2021 Decision date: 24 March 2021 Jurisdiction: Appeal Panel Before: K Ransome, Senior Member R Titterton, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. Catchwords: APPEAL – consumer claim – decision said to be not fair and equitable and against the weight of the evidence – proper respondent to Tribunal proceedings – quantum of damages - no substantial miscarriage of justice – leave to appeal refused Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23 Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: Sly Boogie Customs Pty Ltd (Appellant) Brett Duggan (Respondent) Representation: T Low (Appellant) Respondent (Self Represented) File Number(s): 2020/00371210 (AP 20/50561) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 25 November 2020 Before: J Drennan, Member File Number(s): MV 20/29486 REASONS FOR DECISION 1. This is an internal appeal by Sly Boogie Customs Pty Ltd (the company) from a decision of the Tribunal's Consumer and Commercial Division which awarded the applicant in the original proceedings, Brett Duggan, a sum of $17,000 for defective work carried out on Mr Duggan's motor vehicle. The order was made against Tristan Low trading as Sly Boogie Customs. The company argues that the Tribunal made an error as the proper respondent was the company, not Mr Low, and the amount awarded was too high. The company states the decision was not fair and equitable and was against the weight of the evidence. Background 1. On about 3 October 2017 Mr Duggan took his 1964 EH Holden to Sly Boogie Customs to undertake repairs to various panels on the car and to respray the paintwork. Mr Duggan was to provide various items including a second hand bonnet, door skins and two rear quarter panel sections himself. He also undertook to strip some paintwork prior to having the work done. Mr Duggan spoke to Mr Tristan Low who provided him with a written quote for $23,000 to do the work as itemised in the quote. After some negotiation, an agreed price of $15,000 was settled upon. 2. The car was delivered to the Sly Boogie Customs workshop on 3 April 2018. According to Mr Duggan, work progressed slowly as Mr Low said he was having trouble getting a panel beater. During the work Mr Duggan agreed to pay a further $1,000 to have the dash painted. The total price of $16,000 was paid in three instalments - $5,000 on 3 May 2018, $5,000 on 17 August 2018 and $6,000 on 30 April 2019. Mr Duggan states he made the final payment before the work was finished. 3. Mr Duggan also alleges, and Mr Low does not deny, that a number of problems, particularly with the paintwork, were encountered along the way. Paint blistered and required sanding and respraying. Mr Duggan collected his car on 16 September 2019 and states that the paint work was rippled and peeling. Mr Duggan made a complaint to NSW Fair Trading and an automotive inspector found that the work was not done in a tradesman like manner and that application of the paint was below trade standard. It seems that a rectification order was made but not complied with. 4. Mr Duggan obtained two quotes to have repairs undertaken. The quote for sandblasting, repairs to panels and painting from Harris & Adams Prestige Auto Body Repairs was for a total of $30,0784.60. Another quote from Does Sweet Body Works Pty Ltd was for $31,998. The Tribunal's decision 1. Neither party provided a copy of the recording of the Tribunal or a transcript. We therefore have no record of what exactly occurred at the hearing. There does not appear, however, to be any dispute about the conduct of the hearing. 2. The matter came before the Tribunal for hearing on 5 November 2020 at which time the Member advised the parties that she would be making an order for payment to Mr Duggan of $17,000, which represented a refund of the amount paid for the work which was defective and an additional $1,000 to have the painted surfaces stripped back for new painting. The Member also gave the parties time to make further submissions in relation to the correct entity of the respondent. The Member noted that Mr Duggan alleged that the correct respondent was Mr Low as an individual trading as Sly Boogie Customs, while Mr Low stated that it was the company. 3. The matter came back before the Tribunal on 25 November 2020 at which time the Member determined that the correct respondent was Mr Low trading as Sly Boogie Customs and ordered him to pay Mr Duggan $17,000 immediately. The Member gave brief reasons for her finding: 1. the written quote for the work was issued on 21 June 2017 by Sly Boogie Customs ABN 63 208 731 454; 2. Tristen Low traded as a sole trader under ABN 63 208 731 454; 3. the ABN for Sly Boogie Customs Pty Ltd is 25 610 702 175; 4. according to the information from the respondent's accountant the sole trader ABN was cancelled on 30 June 2019, a matter which is not relevant to the question as to who Mr Duggan contracted with; 5. ABN 63 208 731 454 was current when the works were undertaken; and 6. the evidence of Mr Duggan that he believed the respondent was a sole trader was accepted because it was supported by the lack of any mention of any company in the documentation. The Appeal 1. In its appeal the company stated that the decision made by the Tribunal was not fair and equitable and was against the weight of the evidence. 2. The company stated that it was the correct entity that contracted with Mr Duggan as was confirmed by the documentation provided to the Tribunal by it, its accountant and also Mr Duggan. The company also stated that the amount refunded to Mr Duggan ($17,000) was above and beyond what was necessary to repair the paintwork. In particular, the company states that the works carried out to the vehicle included extensive repairs to the vehicle as well as painting. The painting component contained in the original quote for $23,375 was $9250. The remainder of the quote was for other repair work to the vehicle. The company argues that Mr Duggan in fact only paid in total 68.44% of the original quote and therefore the maximum amount he should be refunded for the painting is 68.44% of $9250 being $6330.70. 3. The company also states that it is no longer in business. 4. In his reply to the appeal, Mr Duncan states that, as set out in his original application to the Tribunal, many of the repairs carried out to his vehicle, in addition to the paint, require rectification, including the welding and redrilling of mould holes which were drilled in the wrong place by Mr Low. Applicable legal principles – internal appeals 1. Section 80(2)(b) of the NCAT Act states: Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. 1. Clause 12 of Schedule 4 to the NCAT Act states with respect to decisions made in the Consumer and Commercial Division that: An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In the present appeal the company states it seeks leave to appeal on the grounds set out in clause12 and has not raised any questions of law. 2. Obtaining leave to appeal is a two-stage process. At the first stage the company must persuade us that it may have suffered a substantial miscarriage of justice under clause 2 of Schedule 4, because of one or more of the matters referred to in its grounds of appeal. Should it persuade us that it may have suffered a substantial miscarriage of justice it must then, at the second stage, persuade us that we should exercise our discretion to grant leave to appeal on one or more of those grounds. The principles applicable to the granting of leave were set out in Collins v Urban [2014] NSWCATAP 17 at [65] – [84]. 3. For the reasons which appear below we are not persuaded that the company has suffered a substantial miscarriage of justice. Consideration 1. In Collins v Urban at [76] it was said that a substantial miscarriage of justice may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. The expression "against the weight of evidence" in the Tribunal means that the evidence in its totality preponderates so strongly against the conclusion favoured by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach: Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23 at [153], followed in Collins v Urban at [77]. 2. In our view, the decision, on the state of the evidence the Member had before her, was both fair and equitable. It also was not against the weight of evidence. 3. In relation to the identity of the entity with which Mr Duggan contracted to undertake the repairs to and repainting of his vehicle, the evidence which the Member had before her was: * the typed quote for $23,375 from "Sly Boogie Customs" bearing the ABN 63 308 731 454; * three handwritten receipts signed by Tristen Low, two of which stated that "I Tristen Low received" a particular amount and the third which was headed Sly Boogie Customs; * a letter dated 6 November 2020 from Sorenson Accountants which stated that the firm had acted as accountant for Mr Low since 2016; that the sole trader entity had not actively traded since 2016 and the ABN was cancelled on 30 June 2019 and that all business goes through the company; * an ASIC extract for the company; and * a document sent by Mr Duggan to the Tribunal on 16 November 2020 which appears to set out details of the company and a motor vehicle repairers licence. 1. At the appeal hearing Mr Low told us that the quote had been filled out on an old pro forma on the computer and the handwritten receipts were the only receipts supplied to Mr Duggan and the Tribunal. He stated that there were formal receipts from the company on file but these had not been given to Mr Duggan or to the Tribunal. These documents have also not been supplied to the Appeal Panel. Mr Low confirmed to us that at no point has he provided any bank or other business records indicating that the company received payment for the works. Nor has he issued or provided any tax invoices for the work in the name of the company. We also note that the letter from the accountant is generalised and makes no reference to the particular contract the subject these proceedings. It is therefore of little probative value in determining which entity entered into the contract with Mr Duggan. 2. We are not satisfied that any error has been established in the manner in which the Member considered the evidence. The records provided point to a conclusion that Mr Low himself contracted to do the work. Nothing can be read into the document provided by Mr Duggan who, as we understand it, was in fact arguing that it was Mr Low and not the company contracted to do the work, other than it sets out information about the company. In our view the finding made by the Member that Mr Duggan contracted with Mr Low in his capacity as a sole trader was reasonably available on the evidence put forward by both parties at the hearing. 3. In relation to the quantum awarded to Mr Duggan, Mr Low seems to accept that the paintwork is defective but takes issue with the fact that Mr Duggan was awarded the full contract price plus an additional $1,000 for stripping the car in preparation for repainting. He states that the amount paid was inclusive of extensive repairs to the vehicle, the benefit of which are retained by Mr Duggan. Mr Lowe also disputes that the vehicle needs to be taken back to bare metal for the paintwork to be rectified. He refers to a document from BASF Coatings Solutions which stated that the topcoat layers appear to have been applied outside recommendations. The letter also stated that the underlying primer type substrate appears to be sound. 4. It is clear from all the documents presented that Mr Duggan's case was never confined solely to the paintwork. He set out in substantial detail in his application to the Tribunal his concerns about the repair work carried out by Mr Low in addition to the issues with the paintwork. The two quotes provided by Mr Duggan referred to rectification work for the repairs as well as for the paintwork. Both quotes recommend sandblasting to take the vehicle back to bare metal to ensure that the defective paintwork is removed prior to applying new coatings. Mr Low confirmed at the appeal hearing that he did not provide any alternative quotes to carry out any repairs to the defective work, nor did he seek access to the vehicle in order to obtain a quote from another repairer. 5. As we have not been provided with a transcript of the hearing or any written reasons, the exact basis upon which the Member made her decision is unclear. The usual approach is that the aggrieved party is entitled to be placed in the position they would have been in had the work not been defective. It is apparent that the Member accepted, on the basis of the evidence before her, that the work was defective and that Mr Duggan was entitled to recover an amount for the cost of repairing the defective work. It was only Mr Duggan who provided an estimate of the cost of that work and the quotes he provided referred to both the paintwork and the other repairs. Again, in our view the decision made by the Member was reasonably open on the evidence that she had before her. 6. In all the circumstances we are unable to find that the company, or indeed Mr Low, has suffered a substantial miscarriage of justice. There was no real possibility or fair chance of a different result on the state of the evidence before the Tribunal. 7. None of the grounds of appeal have been established. Leave to appeal is therefore refused and the appeal is dismissed. Orders 1. We make the following orders: 1. Leave to appeal refused. 2. Appeal 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. 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