Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AWD Cavallo Investments Pty Ltd v Smokevitch [2021] NSWCATAP 183 Hearing dates: 23 March 2021; provision of transcript and record of hearing by 8 April 2021 Date of orders: 24 June 2021 Decision date: 24 June 2021 Jurisdiction: Appeal Panel Before: G K Burton SC, Senior Member D Robertson, Senior Member Decision: (1) Leave to appeal is refused. (2) Appeal dismissed. Catchwords: CONSUMER LAW – Unfair contract terms – Terms providing for cancellation of a contract for the supply of a kitchen – Whether unfair – Whether supplier had provided evidence of amounts to which the contract provided it was entitled Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 (NSW), ss 60, 80, 81, Sch 4 cl 12 Fair Trading Act 1987 (NSW) Cases Cited: CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578, [2000] FCA 1343 Collins v Urban [2014] NSWCATAP 17 Craig v South Australia (1995) 184 CLR 163, [1995] HCA 58 Owen v Kim [2017] NSWCATAP 26 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Soulemezis v Dudley (Holdings) PL (1987) 10 NSWLR 247 (CA) Texts Cited: None cited Category: Principal judgment Parties: AWD Cavallo Investments Pty Ltd (Appellant) Jennifer Smokevitch (First Respondent) James Gough (Second Respondent) Representation: A Dowling (Sole director of Appellant) J Smokevitch (for both Respondents) File Number(s): 2021/00056045 (AP 21/02282) Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 6 January 2021 Before: G Ellis SC, Senior Member File Number(s): GEN 20/34781 Judgment Background to appeal 1. On 14 August 2020 the now-respondents to the appeal (the consumers) filed an application for a money order for $9,035 in relation to the supply and installation of a kitchen by the now-appellant (the supplier). 2. There was no contest on the primary findings that the Tribunal had jurisdiction over what was a consumer claim as defined in Pt VIA of the Fair Trading Act 1987 (NSW) (FTA) and that the claim was brought within time under that Part. 3. On 10 March 2019 the consumers visited the supplier's showroom in Willoughby, NSW. On 13 March 2019 they paid a $1,000 design fee and then met on 14 March 2019 with the supplier's designer. On 16 March 2019 they signed a document titled "Contract/Tax Invoice", which showed a total price of $28,570, and paid a 10% deposit of $2,857 on 17 March 2019. 4. The consumers subsequently received design documents and on 27 May 2019 paid $8,035 (in two payments of $5,000 and $3,035), which meant that total payments to the supplier totalled $11,892 or $9,035 without the deposit. 5. On 14 May 2020 the consumers advised the supplier that they did not wish to proceed since they were no longer intending to build the house into which the kitchen was to be installed. They sought a refund. 6. The supplier said that the total cost to it of the contract was $19,799 comprising $3,124 designer commission, $6,050 being the cost of detailed plans, elevations, variations and continuous changes, $2,500 being the cost of management time and CAD drawings, and loss of profit $8,035. The supplier said that the consumers had been told that the full cost of the design consultant would be included within the cost of the kitchen and was not simply the $1,000 paid which was the cost of the consultation, that a progress payment was required on the earlier of site check or 30 days after contract and that progress payments barely covered costs. The kitchen was 90% ready subject to a site check. 7. The consumers disputed that the design fee exceeded $1,000 which was the only cost incurred because there was no site check. They said that the terms were not legible on the only copy of the contract with which they had been supplied, that relevant provisions of the terms were unfair and void, and that the supplier had not provided evidence of its reasonable costs despite numerous requests. The consumers also said that the matter had not in reality gone beyond quotation because there was no site-check which the agreement they signed said was required prior to an order. They said they signed the form of agreement which contained the printed terms only because they were told that it would hold the price stable while they sought approval for their house plans. They had not sighted a copy signed by the supplier. 8. The consumers relied upon ss 23 and 24 of the Australian Competition Law (NSW)(ACL) (which is made part of the law of NSW pursuant to FTA s 28). Section 23 relevantly voids "unfair" (as defined) terms in standard form contracts for the supply of goods or services to an individual acquiring them for personal, domestic or household use or consumption. 9. "Unfair" is relevantly defined in ACL s 24. That section provides: (1) A term of a consumer contract is unfair if: (a) it would cause a significant imbalance in the parties' rights and obligations arising under the contract; and (b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and (c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on. (2) In determining whether a term of a consumer contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following: (a) the extent to which the term is transparent; (b) the contract as a whole. (3) A term is transparent if the term is: (a) expressed in reasonably plain language; and (b) legible; and (c) presented clearly; and (d) readily available to any party affected by the term. (4) For the purposes of subsection (1)(b), a term of a consumer contract is presumed not to be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise. 1. The criteria in s 24(1) are cumulative, that is, to be unfair, a term must cause "a significant imbalance in the parties' rights and obligations arising under the contract", and must not be reasonably necessary to protect the legitimate interests of the advantaged party, and would cause financial or other detriment to a party if relied upon. 2. The criteria of unfairness are open-ended within these three requirements, but s 24(2) requires that both the extent to which the impugned term is transparent and the contract as a whole must be taken into account. A term is transparent under s 24(3) if it is expressed in reasonably plain language, legible, and is presented clearly and is readily available to the affected party. Section 24(4) requires that the person defending a term as not unfair must defeat a presumption that the term is not reasonably necessary to protect the legitimate interests of the advantaged party. 3. The hearing at first instance proceeded on the written material and submissions without cross-examination as the parties had provided to the Tribunal chronologies but no witness statements. Reasons for primary decision 1. Having found the basic transactional facts and dates, the primary member found that the parties had contracted in terms of the document of 16 March 2019 and that the relevant cancellation provisions in that document, cll 13.1 and 13.2, were not legible because the print was too small, so the terms were not transparent. 2. The primary member also found that cl 13.1, which read "This agreement may be cancelled/varied by you only with our written consent", offended each element of s 24(1) and was void. 3. The primary member further found that cl 13.2 was unfair and void "for the reasons indicated in respect of cl 13.1". The primary member only quoted the opening words of clause 13.2: "To the extent permitted by law, we may require as a condition of our consent that you pay our reasonable charges for such cancellation/variation… ". The complete clause went on: " … which take into account expenses incurred by us to the date of cancellation/variation, including recompense for any commitments made by us in consequence of the order/quotation and all other losses both actual and prospective, incurred as a result of such cancellation/variation". 1. Although satisfied that the supplier was "entitled to retain a reasonable amount for the work done and materials supplied", the primary member said that in the absence of evidence the cabinets had been made or payments made to the German supplier or third parties there was no evidence that most of the work was done or that the supplier had incurred costs or expenses in the amount of $19,799. Retention of a reasonable amount was implicitly conceded by the consumers, who said that they had never been supplied with substantiation of such amounts despite numerous requests. 2. The claim for loss of profit was rejected as that was not an expense. The claim for designer commission of $3,214 was rejected (beyond the initial fee) for absence of evidence that the liability was incurred or paid. $1,800 was seen as a reasonable amount, on the evidence, in respect of the supplier's claims for $6,050 for detailed plans and continuous changes and $2,500 for management time. 3. The primary member characterised the incomplete project, beyond the supplied design for which there was no evidence as to value beyond the $1,000, as constituting a total failure of consideration entitling the consumers to a total refund of all they had paid apart from the $1,000, being $10,892. However, the consumers had claimed only $9,035. The Tribunal awarded the consumers that amount on the basis that the consumers had conceded that the balance of $1,857 was a reasonable amount for the work done. 4. The primary decision, delivered on 6 January 2021, was amended on 11 January 2021 by the addition of a new final paragraph. This said that, even if cl 13.2 was not void and there was no total failure of consideration, $1,857 was a reasonable amount on the evidence presented. 5. The notice of appeal was filed, within time, on 18 January 2021 accompanied by a stay application. The latter was dismissed on 4 February 2021 because the amount of the judgment had been paid. On the same date leave was given to the supplier to be represented on the appeal by its sole director. 6. At the appeal hearing the supplier sought to rely upon further evidence beyond that tendered at the primary hearing. The additional evidence consisted of invoices concerning design costs. We rejected that material as it did not meet the test for further evidence described below. 7. Neither party had complied with procedural directions concerning the provision to the Appeal Panel of the sound recording of the primary hearing and a transcript of the parts relied upon. We made directions for the provision of such material and reserved our decision. We subsequently received a copy of the sound recording but no transcription by either party. The sound recording has been reviewed. Grounds of appeal 1. The notice of appeal had been prepared by the supplier apparently without legal assistance. In accordance with the approach outlined in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12], we discern the grounds of appeal to be, in summary, as follows: 1. The primary member ought to have found that cl 13 was not void and that the supplier was entitled its costs as provided therein. 2. The primary member ought to have found the expenses claimed were sufficiently established on the material provided by the supplier, including material which the supplier said that it had provided but apparently was neither in the Tribunal file nor served on the consumers; effectively this was a weight of evidence issue. 3. New evidence was sought to be put forward that included legible hard copies of the contract terms and invoices. 1. The above grounds were all listed in the Notice of Appeal as requiring leave to appeal. We consider that the first identified ground raises an alleged error of law on the principles set out below, in that it alleges both inadequate reasons and the erroneous application of legal principle. We agree that the other two grounds require leave to appeal. 2. In accord with the approach in Prendergast already referred to, it is appropriate for the Tribunal to look at the grounds of appeal generally, and to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations in favour of the respondent. Here the issue just raised was sufficiently canvassed in substance at the appeal hearing. Applicable legal principles for appeal 1. Section s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) provides as follows: "(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) 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. (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." 1. Clause 12 of Schedule 4 to CATA states: "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. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision. 2. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179. 3. These categories are not exhaustive of errors of law that give rise to an appeal as of right. In Prendergast at [13], the Appeal Panel enunciated the following as specifically included: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable. 1. In relation to adequacy of reasons, it is essential to expose the reasons for resolving a point critical to the contest between the parties: Soulemezis v Dudley (Holdings) PL (1987) 10 NSWLR 247 (CA) at 259, 270-272, 280-281; Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 at [40]; Wainohu v NSW (2011) 243 CLR 181 at [58]; NSW Land and Housing Corp v Orr (2019) 100 NSWLR 578, [2019] NSWCA 231 at [65]-[77]; CATA s 62(3). 2. Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]–[79] and [84(2)] as follows: "74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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. 75 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. 84 The general principles derived from these cases can be summarised as follows: … (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." 1. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37]–[39]: "37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.' 38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]: 'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] – [24] the Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'" 1. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: "An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal." 1. Even if the appellant establishes that it may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the CATA, the Appeal Panel has a discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Panel's consideration of whether or not to exercise that discretion. Error of law 1. We note that cl 3.9 of the contract repeated the substance of cll 13.1 and 13.2 which may be why there was, in the statement of the consumers' argument in the primary reasons (although not in the primary member's findings themselves), a confusing reference to cll 3.1 and 3.2. Clause 3.9 read: "You cannot cancel an order. In the event that we in our sole and absolute discretion agree to cancel an order you will reimburse us for any cost or expenses incident and relating to such order incurred by us as a consequence of the cancellation". 1. We have proceeded on the basis, although it was not entirely clear in the materials before us, that the supplier made clear that its consent to cancellation was conditional on compliance with its interpretation of these provisions. Apart from these provisions, there was no right in the contract for the consumers to cancel the contract in the absence of a breach by the supplier. There was no suggestion that the consumers relied upon an alleged breach by the supplier. 2. We agree with the primary member, contrary to the consumers' contention, that the foregoing were terms of a contract between the parties made in March 2019. The matters to which the consumers drew attention as indicating that there was no contract – the absence of steps beyond design and quotation - were part of the contractual process leading to order placement, as the terms made clear. 3. The suggestion in the application that the contract was entered into by reason of representations by the supplier was not the subject of witness statements and was not (we assume on that basis) the subject of consideration by the primary member. No complaint or ground of appeal was put to us that that issue was not considered. 4. There was no suggestion that the contract was not a standard form contract. It clearly was. 5. Turning to the primary member's findings, the only copy, in A4, of the contract terms in evidence before us was in fine print that was very hard to read and supported the primary member's finding of illegibility for the reasons he gave. 6. It appears to us however that the primary member gave inadequate reasons for finding overall the three required, cumulative elements of unfairness within ACL s 24. The finding of transparency appears to fit within s 24(1)(a) rather than (b) or (c). 7. The first basis for our conclusion is that the primary member did not say why cll 13.1 and 13.2 should be treated distinctly. It is clear that cl 13.2 is a procedural provision relating to the consent required by cl 13.1. This is reinforced by both elements appearing in the one provision in cl 3.9. 8. Secondly, when the two provisions are taken together, it is difficult to see why a significant imbalance in the parties' rights is caused by the provision and the regime it establishes. The mechanism provides a means, when the supplier is not in breach, for the consumer to escape contractual obligations. The price of escape is to pay costs of not proceeding and, to the extent they are not overlapping with such costs, what is in effect damages for loss of bargain. That is not an unusual provision to balance the parties' rights. It grants the supplier no more than it would have been entitled to if the consumers had terminated the contract without consent and the supplier had brought action under the contract seeking damages for breach. 9. For the same reason it is clear on the face of the provision that it protects a legitimate interest of the supplier appellant in being recompensed if the consumer wishes to escape contractual obligations where the supplier is not in breach. To discharge its onus under ACL s 24(4), it is not necessary for the supplier to go beyond the face of the provision in the current circumstances. 10. Accordingly, we respectfully consider that the primary member erred in law in giving inadequate reasons for his conclusion on the impact of ACL ss 23 and 24 on the relevant contractual provisions and in incorrectly applying those provisions to the facts. 11. We further consider that the primary member misdirected himself in applying case law on total or substantial failure of consideration in the above circumstances. Those authorities are directed to the situation where the party seeking to invoke the principle is not responsible for the situation the parties find themselves in. Here the party rewarded by the application of the principle, being the consumers, was responsible for the situation in which the contract did not proceed. 12. It could also be suggested that the primary member gave inadequate reasons for finding that $1,857 was a reasonable amount to compensate the supplier for expenses and losses. We consider that this is best dealt with under the issue of leave because, even if inadequate reasons were given, it is inextricably tied up with the findings of fact on which leave is sought. 13. We note that the consequence of the primary member's finding of voidness should have been that there would be no right (absent breach by the appellant of sufficient seriousness) for the respondents to cancel the contract. 14. However, it does not appear to have been disputed that the supplier did consent to the termination of the contract. The question for determination by the Tribunal should have been, given the provisions of clauses 13.1 and 13.2, what entitlements pursuant to clause 13.2 had the supplier established? 15. We should also note, for completeness, that no party sought to raise or rely upon any legal consequences said to arise from the status of the payment of $2,857 as a deposit. Matters requiring leave to appeal 1. While we would have analysed and expressed the conclusions on expenses differently, we respectfully agree with the primary member's conclusion that there was insufficient evidence, in the material put before us that was also before the primary member, to establish the claims for losses and expenses made by the appellant. There was an inadequacy of documentation that was fundamental; most notably, the copies of the plans in evidence do not of themselves prove the expenses of producing such plans. 2. To the extent the supplier relied upon there having been hard copies of documents which were said to be missing from the Tribunal's record of evidence received from the appellant, it is apparent from the primary decision that an emailed copy of those documents was available to and taken into account by the primary member. 3. It appears to us that, regardless that the Tribunal wrongly determined that clauses 13.1 and 13.2 were void, it nevertheless considered the correct question, namely what entitlement to reimbursement of costs and expenses had the supplier established? We do not consider that the Tribunal's conclusion regarding the extent to which the supplier had incurred costs and expenses was not fair and equitable or was against the weight of evidence. Nor do we consider that the supplier may have suffered a substantial miscarriage of justice so as to warrant the grant of leave to appeal. 4. We reject the supplier's application to rely upon further evidence. The evidence sought to be relied upon does not meet the test set out above as it was clearly reasonably available at the time of the initial hearing. In any event, even if admitted, that evidence would not provide sufficient substantiation of the higher design fees to which it was directed and would not cure other gaps in the documentation pointed to by the primary member. Appropriate relief on appeal 1. CATA s 81 provides as follows: "(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. Here, even though the supplier has been successful in establishing an error of law and preserving the validity of cll 13.1 and 13.2 (and for completeness cl 3.9), it has failed to secure the required leave to appeal to raise the alleged errors of fact that underpin its claim to retain funds beyond what the primary member found it was entitled to keep. 2. In those circumstances, the appropriate orders are to refuse leave to appeal to the extent that leave is required, and to dismiss the appeal. Costs of appeal 1. The parties were self-represented, no leave for legal representation on the appeal was sought or granted, and there are no special circumstances put forward, or evident, that justify an award of costs of the appeal under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW). Orders 1. The orders we accordingly make are as follows: 1. Leave to appeal is 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. 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: 24 June 2021