Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fastway Plumbing Pty Ltd v Castle [2021] NSWCATAP 82 Hearing dates: 19 January 2021 Date of orders: 7 April 2021 Decision date: 07 April 2021 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member A Boxall, Senior Member Decision: 1. The appeal is allowed. 2. The decision of the Tribunal in proceedings HB 20/14128, on 16 September 2021, is set aside; 3. The matter is remitted to the Tribunal, differently constituted, to be determined according to law. We will not limit the lodgement of new evidence which might be relied upon; 4. There is no order as to costs. Catchwords: APPEAL – adequacy of reasons – whether the Tribunal engaged with the cases of each party Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Corporations Act 2001 (Cth), s 161 Cases Cited: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Texts Cited: Nil Category: Principal judgment Parties: Fastway Plumbing Pty Ltd (Appellant) Sonya Cerny Castle (First Respondent) Peter Lindsay Castle (Second Respondent) Representation: Song Nguyen (representative of the Appellant) First Respondent (Self Represented) Second Respondent (Self Represented) File Number(s): 2020/00371070 (AP 20/41555) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 16 September 2020 Before: P Smith File Number(s): HB 20/14128 REASONS FOR DECISION Summary 1. Late on Christmas Eve 2019, the respondents experienced a plumbing emergency at their home. 2. An online booking was made with the appellant, which sent out a plumber to rectify the problem on 27 December, and the rectification work was done. 3. Prior to doing the rectification work, the appellant arranged for a quote for that work to be emailed to the first-named respondent, Mrs Castle, at her email address. Presumably, this came about because of how the online request for work was completed. The quote was to be signed on an electronic tablet carried by the appellant's representative, as authorisation for the works and acceptance of the quote. 4. The appellant charged the respondents the sum of $3,542.00, consistent with the quotation. Mr Castle (the second-named respondent) paid that amount, in full, by Eftpos transaction. 5. The respondents say that only afterwards did they realise that this was the amount to be charged and that there was a prior oral agreement with the appellant that the amount charged would be $230.00 plus GST. They say that the contract which was formed was between the appellant and Mrs Castle only and that any acceptance of the quote by Mr Castle was ineffective. In any event, they deny that Mr Castle signed the electronic tablet to accept the quote. They say that Mr Castle only signed the invoice after the work was done and assert that his signature was then transposed to the quotation by the appellant. 6. Mrs Castle sought relief from payment of the amount charged, other than to the extent of $253.00, by application to the Consumer and Commercial Division. 7. In support of that application, she provided: 1. A statement by her which, relevantly, indicated that: 1. both she and Mr Castle owned the property where the works were completed; 2. both she and Mr Castle were present when the oral contract they allege was made between Mrs Castle and a representative of the appellant was formed. When the alleged verbal offer to do the work for $253.00 was made by the appellant's representative, Mrs Castle "looked at [her] husband" and said "yep that sounds reasonable. That's ok you can go ahead." After the work was completed, Mrs Castle looked at Mr Castle and asked, "can you pay for this one," which he did; 3. by attaching the correspondence, the email, formal quotation and invoice from the appellant were all addressed to her solely; and 4. contrary to the appellant's assertion and documents lodged in the Tribunal, Mr Castle only signed the invoice after the works were complete and did not also sign the quotation in advance, to authorise the works at the quoted cost. 1. An alternate quotation for the works from another plumber, prepared subsequently, which indicated that the works could have been completed for $380.00. 1. The Tribunal determined the application on 16 September 2020. It referred in its reasons to the appellant's evidence that Mr Castle accepted the quote before the works commenced and, thereby, agreed to the amount charged. Critically, in dealing with the question of whether a contract was formed between the parties, and, if so, which parties, the Tribunal found that "[i]f the Tribunal accept[s] this submission by the [appellant] then there is no evidence that Mr Peter Castle was a party to the agreement. No attempt was made to obtain the authority of Ms Castle, who was present at all times. There is no evidence if (sic) any enquiry was made if he was authorised to act on her behalf. On the evidence of Fastway Plumbing Pty Ltd, the [appellant] has no contract with Ms Sonya Castle for the services in the sum of $3,542.00." 2. The Tribunal went on to find that "[b]ased upon the findings that there is no enforceable contract between the parties" it would allow the appellant the sum of $500.00, on what the Tribunal described as the assessment of a quantum meruit of an amount proper to avoid unjust enrichment. It ordered the appellant to repay to Mrs Castle only, the amount of $3,042.00. 3. The appellant challenges that decision, and lodged a Notice of Appeal on 30 September 2020. Despite the respondent's contention to the contrary, the appeal was lodged in time: Civil and Administrative Tribunal Rules, r 25(4)(c). 4. For the reasons set out below, we have decided to allow the appeal and remit the matter to the Tribunal, differently constituted, for determination according to law. Consideration 1. To dispose of the appeal, it is sufficient to refer to two of the several grounds relied upon by the appellant, that the Tribunal erred on questions of law in that it: 1. failed to address any evidence which indicated that Mr Castle was authorised to accept the written quotation by Mrs Castle; and 2. proceeded to calculate the amount Mrs Castle owed to the appellant on a quantum meruit, without notice to the appellant that it might do so, and in denying the appellant an adjournment to obtain evidence relevant to that determination. 1. We should record that, in non-compliance with a direction that it do so, the appellant did not provide the sound recording or transcript of the hearing below, such that we could determine the issue of whether the Tribunal erred by denying the appellant an adjournment as alleged. The appellant also does not dispute the finding that its contract was with Mrs Castle alone, and on that basis, we will make no further comment in that regard. 2. In our view, the appeal must be allowed, because for the reasons set out below, we are of the opinion the Tribunal erred on questions of law in the following respects: 1. It failed to engage with the entirety of the evidence and the appellant's argument; and 2. It failed to give any or any adequate reasons. The Tribunal failed to engage with the entirety of the evidence and the appellant's argument 1. Where a decision-maker fails to respond to a substantial argument, there has been a failure to accord natural justice, that is, procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088. In such a case, the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] per Gleeson CJ. 2. To determine the respondent's claim below, on the respondent's evidence the Tribunal was, at least, required to grapple with the question of whether, as advanced by the appellant, Mr Castle was either expressly or apparently authorised to accept the written quotation by Mrs Castle. There were several indicia, taking the respondent's evidence at its highest, which may indicate that Mr Castle may have had at least apparent authority to do so, against a background of their status as a married couple who jointly owned the property where the works were completed. These included: 1. The reference by the respondent in her application below to decisions in respect of the works being made by both her and Mr Castle, in terms such as "We both provided consent…" to the verbal quote and that "…[w]e both provided consent thus agreeing that we consented verbally in the form of a verbal contract…"; 2. Mrs Castle's evidence that she looked to Mr Castle before accepting the verbal quote she alleges, which may indicate that they were jointly involved in decision making on the issue; 3. Mrs Castle's presence when Mr Castle signed the quote by way of acceptance, if that occurred, and his signing of the invoice, which undoubtedly occurred, without any comment by Mrs Castle; and 4. Mr Castle's payment of the amount he allegedly accepted, on behalf of Mrs Castle. 1. The Tribunal failed to deal with this issue. The Tribunal failed to give any or any adequate reasons 1. The Appellant lodged documents in the Tribunal, which indicated that the quotation was emailed to Mrs Castle and signed by Mr Castle by way of acceptance, prior to commencement of the work. That evidence was not referred to in the reasons. 2. Where, as here, there is documentary material arguably supporting a party's case, that material must be considered in the Tribunal's reasons in a satisfactory way: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 per McColl JA, with whom Ipp JA and Bryson AJA agreed at [63]. 3. The extent and content of reasons will depend on the particular case, but it is essential that they expose the reasons for resolving a point critical to the contest between the parties: Pollard at [58]. 4. As we have set out above, the Tribunal's reasons fail to engage with several relevant aspects of the evidence regarding whether Mr Castle was authorised to accept the written quotation provided by the appellant, and in fact did so. 5. There are other areas where the reasons are deficient, to the extent that we are prevented from properly undertaking the task of appellate review. 6. They include: 1. The lack of any reference whatever to the power the Tribunal was satisfied it had to make the order it did; 2. The Tribunal making no finding as to whether an oral quotation of $253.00 was provided by the appellant to Mrs Castle, and accepted by her; 3. Given the lack of any findings in that regard, a lack of any explanation of how the Tribunal was satisfied that "[b]ased upon the findings that there is no enforceable contract between the parties," or why it should proceed to determine the matter on the basis of a quantum meruit or unjust enrichment. Indeed, the Tribunal made no such findings, it found only that there was no relevant contract involving Mr Castle, but he was not a party to the proceeding; and 4. The lack of any reasoning for the order that the monies paid by Mr Castle should be repaid to Mrs Castle, as opposed, for example, to joining Mr Castle to the proceedings and ordering repayment to him. 5. The appeal should be allowed and the decision set aside. 1. As the dispute between the parties involves disputed facts, the resolution of which would involve the assessment of the credit of the competing witnesses, and as that was not possible on the appeal, we have no choice but to return this matter to the Tribunal, differently constituted, to be determined according to law. New evidence 1. In the appeal, the appellant sought to rely upon a screenshot, apparently taken from its electronic records, to indicate that Mr Castle signed the quotation at about 7.50 am on 27 December 2020, a time which, it is agreed, was before the commencement of the works. The respondent objected to that evidence, principally on the bases that it was available prior to the hearing below; that she disagreed with it; and that she was precluded from testing its veracity. We did not accept the document into evidence, for the valid reasons set out by the respondent. The appellant also failed to provide any evidence to explain the document or establish its source or nature as a reliable business record. Having decided to allow the appeal, however, we see no reason why the document should be excluded from the evidence before the Tribunal on remitter, although whether it is probative may depend on whether the appellant can establish its source, reliability and relevance. The respondent will have an opportunity to challenge the evidence, if it is relied upon. Costs 1. The appellant sought its costs of the appeal, to the extent of the filing fee and the cost of obtaining the sound recording. In that event, it had been directed in preparation for the appeal that it should lodge and serve "any submissions on costs at the same time as [its] submissions in relation to the appeal." The appellant did not do so. 2. We are not minded to provide a further opportunity for this to occur. The appellant has had an opportunity and has not availed itself of it. As this is not a matter wherein r 38 (and thereby in appropriate circumstances r 38A) of the Civil and Administrative Tribunal Rules 2014 is engaged, the Appellant has the burden of demonstrating that there are special circumstances warranting an award of costs: Civil and Administrative Tribunal Act 2013, s 60. It has not done so, and no such special circumstances are apparent to us. The amount of the costs sought, totalling $915.18, does not warrant the further involvement of the parties and the delay caused by our taking further submissions on the issue of costs and then determining it, even if on the papers. The appellant has changed its name 1. On 27 October 2020, the appellant changed its name to Plumbcorp Group Pty Ltd. Nothing turns on this: Corporations Act 2001 (Cth), s 161. We have decided not to amend the appellant's name in the appeal, given that the orders below were made in the name identified in the appeal. The Tribunal on remitter may wish to do so, to avoid confusion. Orders 1. Our Orders are as follows: 1. The appeal is allowed; 2. The decision of the Tribunal in proceedings HB 20/14128, on 16 September 2021, is set aside; 3. The matter is remitted to the Tribunal, differently constituted, to be determined according to law. We will not limit the lodgement of new evidence which might be relied upon; 4. There is no order as to costs. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 Amendments 12 April 2021 - Paragraph 13 corrected. 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: 12 April 2021