Civil and Administrative Tribunal New South Wales Medium Neutral Citation: PlumbCorp Group Pty Ltd v Paras [2021] NSWCATAP 207 Hearing dates: 28 June 2021 Date of orders: 9 July 2021 Decision date: 09 July 2021 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President D Fairlie, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. Catchwords: APPEAL, whether expert evidence requires reference to the Experts Code of Conduct- leave to appeal, criteria for granting leave. Legislation Cited: Home Building Act, 1989 (NSW) Fair Trading Act, 1987 (NSW) Civil & Administrative Tribunal Act 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: None cited Category: Principal judgment Parties: PlumbCorp Group Pty Ltd (Appellant) Paolo Paras (Respondent) Representation: Appellant (Self Represented) Respondent (Self Represented) File Number(s): 2021/00129936 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: 13 April 2021 Before: G Meadows (Senior Member) File Number(s): HB 20/51498 REASONS FOR DECISION Background 1. This is an appeal from a decision (the Decision) made in the Consumer & Commercial Division of the Tribunal. Orders to the following effect were made: 1. PlumbCorp (now the Appellant) is to pay P Paras (now the Respondent) the sum of $7,057.33. 2. The sum of $2,249.77 is not due and owing by P Paras to the Appellant. The Appellant appeals both orders. 1. Briefly, the facts giving rise to the dispute between the parties were that the Appellant provided plumbing services to the Respondent in October 2020. The Respondent paid the first invoice (being the amount the subject of order (1) above) and disputed the obligation to pay the second invoice (the amount referred to in order (2) above). 2. The written record of the Decision is brief and, apart from recording the orders, stated that the Tribunal had jurisdiction to determine the dispute under the Home Building Act, 1989 (NSW) (the HB Act) and also under part 6A of the Fair Trading Act 1987 NSW (the FT Act). Beneath order 1 the Tribunal recorded apparently as a reason for that order: "Refund of money paid for unnecessary plumbing work". The record also stated that detailed oral reasons were provided at the conclusion of the hearing. 3. When the appeal came before the Tribunal at a call-over on 14 May 2021 the Tribunal made directions for the parties to file and serve evidence and submissions in support of and in opposition to the appeal. One of the directions stated that the Appellant "must provide a typed copy of the oral reasons, failing which the appeal may be dismissed". The Appellant has not done so, but has provided a USB stick enabling us to listen to the hearing (which had been recorded), including the reasons given orally. Had we been of the opinion that the Appellant's failure to provide a typed copy of the oral reasons caused prejudice to the Respondent in relation to the appeal, we would have considered whether the appeal should have been dismissed. However, in circumstances where we have not determined that the Respondent has been prejudiced and we have been able to consider the appeal by reference to listening to the sound recording and the other material provided, we do not intend to dismiss the appeal because of non compliance with the direction to provide a written copy of the reasons. The Decision under Appeal 1. Before we record the Tribunal's reasons for making the orders under appeal, it is necessary to set out the basic facts which we do in the following subparagraphs: 1. On 27 October 2020 the Respondent called the Appellant to attend to an "emergency" (the Respondent's words). Sewerage was coming back through the shower in the Respondent's downstairs bathroom. The Appellant came and provided a quotation "for work to be done involving running a camera down the pipes to see if there was a blockage". The Respondent agreed and paid the Appellant's invoice. 2. Later on the same day, the Appellant advised the Respondent that there was damage in that a portion of the sewerage pipes had sunk into the ground. A further quotation (for $8,055.30) was issued. The Respondent accepted the quote and paid a deposit. 3. Later on the same day, the Appellant advised that further work was required and issued a quote for $12,387.10. The Respondent declined to accept that quote. 4. On 29 October 2020 the Appellant informed the Respondent that the pipes were clear. The Respondent paid $5,000 (meaning that the total paid was $7,057.33) and $2,249.77 remained outstanding. 5. Thereafter, there were emails exchanged between the parties but they are not relevant to this decision. 6. On 12 November 2020 the Respondent contacted the Appellant to say that the "original problem" had reoccurred. The Respondent asserts that the Appellant required payment of the amount outstanding. The Respondent then engaged Watertight Plumbing. They came and cleared the blockage, charging $605. The relevant parts of their invoice state: "Plunged downstairs shower and cleared blockage", "Appears problem has always been in this area as there is some build-up of dried toilet paper scale on pipe and shower in downstairs bathroom was the only area affected, vanity and toilet which are downstream of shower have never been impacted by blockage". 7. The quotations of the Appellant included terms and conditions to which we will refer later. 1. The following is a summary of the oral reasons for the orders made: 1. The Watertight invoice is a crucial document. Whilst it is not an expert report in "correct" form because it does not contain reference to the Expert's Code of Conduct or contain evidence of the qualifications of the author, it is nevertheless persuasive as evidence of the facts concerning the nature of the blockage and the remedy to remove the blockage. It is accepted as factual evidence. 2. One factual matter that is particularly persuasive is that the vanity and toilet which are downstream the shower were not blocked. If the blockage had occurred where the Appellant said it had occurred then everything running into the sewer would have also been blocked. The Tribunal noted that Watertight had not been required for cross-examination. 3. The Decision described the work conducted by the Appellant as a "complete waste of time" and found that the Respondent should not have paid for the work done by the Appellant. The Notice of Appeal 1. The Notice of Appeal contains grounds of appeal which may be summarised as follows: 1. The photos provided by both parties constituted objective evidence and were not given the most weight. The Tribunal gave weight to the Watertight invoice despite the fact that it was not an independent expert report, as it did not state that they were given a copy of the Experts Code of Conduct or agree to be bound by its terms. Nor did the Watertight invoice have the contractor's licence number on it. The information contained in that invoice is not backed by a photo. 2. The Appellants jet blast cleared the majority of the blockage allowing for the CCTV drain camera inspection to be conducted. Those images showed that the main sewer which is downstream to the shower is still blocked and holding water (contradicting Watertight). 3. The Appellant disputed the conclusion of Watertight that the shower drain in downstairs bathroom was the only affected area and submitted that the reason why the blockage was only occurring in the shower was that the Respondent's property does not have an overflow gully. The purpose of an overflow gully is to prevent surcharge of the main sewer within the dwelling by diverting the blockage to overflow located on the outside. The Appellant submitted that as a consequence the surcharge will relieve itself at the lowest point, being the downstairs shower. In support of the assertion that there was no overflow gully the Appellant sought to introduce new evidence (being evidence not submitted in the proceedings at first instance), namely a water sewerage service location diagram. 4. If there was a localised blockage and the Appellant's works were unnecessary, then the blockage would have remained after the Appellant left the property but in fact there was no blockage until 11 November when the blockage re-occurred. 5. The Appellant's terms and conditions state (clause 10.6) that there is no warranty on blockages, and blocked drains often indicate the presence of root growth. The removal of an obstruction will not necessarily rectify the underlying issues. Written and Oral Submissions 1. Prior to the hearing the parties filed written submissions, and oral submissions were also provided at the hearing of the appeal. Much of the Appellant's written and oral submissions were already contained in the attachments to the Notice Appeal and have been recorded above. In the written and oral submissions, the Appellant's representative explained that the Sydney Water service location diagram (the Diagram) was not available when the job had taken place and nor available at the time of the hearing. The Appellant submitted that the significance of the of the Diagram was to show that there was no overflow gully and that the absence of the gully had a consequence that where there is a blockage within the main property the surcharge relieves itself at the lowest point, being the downstairs shower. The Respondent disputed that the shower was the lowest point. 2. It is not necessary to record the Respondent's submissions in opposition to the appeal. Consideration 1. Appeals from decisions made in the Consumer & Commercial Division of the Tribunal are regulated by s 80 of the Civil & Administrative Tribunal Act 2013 NSW (the NCAT Act). This means that an appeal is available as of right on a question of law and with leave on other grounds. Clause 12 of Schedule 4 of the NCAT Act regulates the available other grounds and is in the following terms: 12 Limitations on internal appeals against Division decisions (1) 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). Note : Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80(2)(b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if-- (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010 , or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order. 1. In proceedings of the kind under appeal, the Tribunal is not bound by the rules of evidence (see s 38 of the NCAT Act) and in this case there was no requirement for the Watertight invoice to be accompanied by an expert's report complying with the Experts Code of Conduct. This is made clear in the published NCAT procedural direction no 3. In any event, we are in agreement with the reasoning of the Tribunal. The Tribunal found that the Watertight invoice was evidence of factual matters and was not opinion evidence. The Watertight invoice states what was done and what was observed. Evidence of blockage was observed in the downstairs shower and Watertight recorded that the vanity and toilet were downstream of the shower and had not been impacted by a blockage. The only statement which constitutes an opinion is the statement that it appears the problem has always in area of the downstairs shower. That statement was based on the author's observations. There was no evidence contradicting that the vanity and toilet had not been impacted by a blockage. In our view, the Decision contains no error of law in determining that the Watertight invoice was persuasive in its conclusion that that the blockage has "always been in this area" (ie. the area of the downstairs shower). 2. The Decision also noted that the Appellant did not require to cross-examine Watertight. The failure of the Appellant to seek to cross-examine Watertight entitled the Tribunal to infer that the evidence contained in the Watertight invoice were not disputed. 3. The balance of the submissions made by the Appellant were submissions contesting the factual findings contained in the Watertight invoice and the acceptance by the Tribunal of those findings of fact. The key matter disputed by the Appellant was whether the shower was upstream of the vanity and toilet (as recorded by Watertight). Ms Wilcox who spoke for the Appellant asserted that the shower was in fact the lowest point. That contention was disputed by the Respondent. Her contention was intended to explain why the blockage occurred in the shower area and the point of the Diagram was to confirm that the surcharge did not spill to the outside by reason of the nonexistence of a gully. 4. So far as the Diagram is concerned, we are of the opinion that it should not be considered by us in this appeal. The general rule is that new evidence is not available to be used in support of an appeal unless it was not reasonably available at the first hearing. Ms Wilcox submitted that the Diagram was not available either when the work was conducted and nor when the hearing occurred. She could not provide evidence of when the diagram had been applied for. We note that the Appellant's invoice of 27 October 2020 states that a service location diagram and a sewer diagram have been obtained. Ms Wilcox explained that the Appellant applied for those diagrams but was not able to obtain them. We are not persuaded that the Diagram constitutes evidence that was not reasonably available at the time of the first instance hearing. In any event, we are also not persuaded that it is significant new evidence. It does not resolve where the lowest point in the sewer is. 5. It can be seen from the above that the thrust of the Appellant's submissions is to dispute the logic of the reasoning contained in the Decision, which depended upon the Tribunal accepting that the blockage occurred in the shower (being upstream the vanity and toilet) that being in the area nominated by Watertight and not in the area much further downstream where the Appellant conducted its work. 6. We acknowledge that there are some features of the evidence that favour the Appellant. For example, it appears that the blockage was not evident after the Appellant completed its work and did not re-occur until approximately two weeks later. Nevertheless, on the evidence available to the Tribunal the Decision does not satisfy the criteria for granting leave to appeal. We explain this point in the paragraphs below. 7. In the Appeal Panel decision in Collins v Urban [2014] NSWCATAP 17 the Appeal Panel set out the issues to be considered before deciding whether leave to appeal should be given under clause 12: 1. Firstly, it is necessary for the Appeal Panel to determine that there has been a substantial miscarriage of justice. This refers to deciding that the Decision displays that the proceedings were conducted or decided in a manner which deprived the Appellant of a chance that was fairly open of achieving a better outcome than occurred. In our view, on the evidence before the Tribunal, we are not satisfied that there was a significant possibility of the Appellant achieving a different outcome than occurred. 2. Secondly, the use of the word "may" in clause 12 means that the Appeal Panel has a discretion as to whether leave to appeal should be granted. In Collins v Urban the Appeal Panel decided that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration of policy which might have general application; 3. an injustice which is reasonably clear in the sense of going beyond merely what is arguable or an error that is plain or 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; 4. a factual error that was unreasonably arrived at, and clearly mistaken, or 5. 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. In this case we are of the opinion that the arguments about the evidence and the Tribunal's assessment of that evidence raised by the Appellant do not fall into the category of demonstrating an injustice which is reasonably clear. Furthermore we are not of the view that it would be unjust to allow the findings contained in the Decision to stand. 2. To repeat what we have stated above: the Decision places reliance upon the observations made by Watertight and there is logic to the proposition that the blockage was in the area of the downstairs shower. Although there is the possibility that the work conducted by the Appellant was beneficial because the blockage was apparently removed for at least a period of almost two weeks, it also remains possible, as the Tribunal found, that the work of the Appellant was of no value in removing the blockage on a longer term basis. There was no evidence of re-occurrence of the blockage after Watertight's work had been completed. 3. The requirements as set out in Collins v Urban are intended to operate as a filter to appeals so that arguments concerning the assessment of evidence in an appeal do not result in the appeal panel ordering a rehearing, unless the appeal panel is satisfied that a substantial miscarriage of justice has occurred and that it is appropriate to grant leave. In our view that state of satisfaction has not been achieved. 4. Accordingly, it is necessary to refuse leave and to dismiss the appeal. 5. The orders of the Appeal Panel are: 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. 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: 09 July 2021