Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EMG Stone Pty Ltd v Gonda [2021] NSWCATAP 259 Hearing dates: 17 August 2021 Date of orders: 2 September 2021 Decision date: 02 September 2021 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member J Kearney, Senior Member Decision: (1) Leave to appeal is refused; and (2) To the extent then required, the appeal is dismissed. (3) The stay order is set aside from the date of these orders. Catchwords: APPEAL – from finding of fact – whether against weight of evidence – whether substantial miscarriage of justice Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Texts Cited: None cited Category: Principal judgment Parties: EMG Stone Pty Ltd (Appellant) Vashti Gonda (First Respondent) Robert Gonda (Second Respondent) Representation: Appellant (Self-represented) First Respondent (Self-represented) Second Respondent (Self-represented) File Number(s): 2021/00159630 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 24 May 2021 Before: Member S. Smith File Number(s): HB 20/14115 and HB 20/37757 Reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 against a decision made in the Consumer and Commercial Division of the Tribunal on 24 May 2021. The reasons for decision were published on 26 May 2021. 2. At the Appeal Panel hearing the Appellant was represented by Ms T Assad who is the secretary of the company. The Respondents represented themselves and Ms V. Gonda was their spokesperson. 3. For the reasons set out below, we have decided to refuse to grant leave to appeal and to dismiss the appeal. Background 1. The Appellant is a company that is involved in the stonemasonry industry. The Respondents engaged the Appellant to supply and install stoneware including benchtops and splash backs in a home situated near Jindabyne NSW. A quote was provided and accepted. The total price was $8,459. The materials were prepared then installed on 8 December 2019. 2. The Respondents were dissatisfied with the quality of the work and refused to pay the balance then owing of $3,383.60. 3. The Appellant commenced proceedings in the Local Court at Sutherland to recover the outstanding money. An order was made in the Local Court on 4 March 2020 transferring the proceedings to the NSW Civil and Administrative Tribunal ("NCAT") because it is the preferred jurisdiction to hear home building claims pursuant to s 48L of the Home Building Act 1989. The proceedings became NCAT File No HB 20/14115. 4. Subsequently, the Respondents commenced proceedings in the nature of a cross claim – HB 20/37757 being a claim for a money sum for rectification of the work. Tribunal Proceedings and Decision 1. Following the usual preliminary hearings, documents were exchanged by the parties in accordance with directions. Then on 24 May 2021, Member Smith heard and determined both proceedings. The hearing was conducted by telephone. Both parties relied on extensive evidence. The Appellant was represented by Mr S. Assad and the Respondents by Mr R. Gonda. None of the witnesses were cross examined. Reasons for the decision were published and provided to the parties on 26 May 2021. 2. The background facts, as stated in the reasons were: "The Gondas accepted a quote from EMG to supply and fit granite benchtops and associated items such as splash backs to a house they were building near Jindabyne. The installation work took place on Sunday 8 December 2019. Two workmen, employees or subcontractors of EMG, were on site as were Mr and Mrs Gonda. The Gondas had received news of a death in the family and left the site for a drive of some hours late that afternoon. According to Mr Gonda's evidence (which I accept) before he left the site not later than about 6 pm, one of EMG's workmen, a Mr Pathac asked him to sign an "acceptance of work" document which he did. That document was in evidence before me. Also in evidence was a photo taken by Mr Gonda at about the time of the execution of the acceptance document. "5.51" pm appears on the screenshot. I am satisfied the photo shows the EMG workmen preparing to install a granite top to an island bench. It also shows that other work, including splash backs had not at that stage commenced, so the work was nothing like completed. On the following morning, the Monday, Mr Johnson, the builder, attended the site. His assessment of the work done by EMG is highly critical and set out in his statement. Early on Tuesday 9 December he had a telephone conversation with Mrs Gonda and informed her of the poor quality of the installation of the benchtops." 1. The Member analysed the case made by EMG. The reasons state that EMG argued its work was of a high standard and it relied on the "acceptance of work" document signed by Mr Gonda to prevent the Gondas raising any evidence of defects. 2. The Tribunal accepted that the work was damaged or of poor quality. This was also accepted by both parties in the appeal. The Member found the job required total replacement rather than repair. 3. The Tribunal then decided two important factual disputes. 4. The first determined EMG's argument that the work was of a high quality at the time its workers left the worksite, and the damage, when reported to the owners about 36 hours later, had occurred through the actions of the builder, his contractors, or by some other means. The Member did not accept EMG's argument and drew an inference that the work was poorly executed by EMG in the first place. 5. The second is that the Member decided that the work was not complete at the time Mr Gonda signed the "acceptance of work". 6. As a result of those factual findings, the Member went on to find that the "acceptance of work" did not operate to prevent the homeowner from raising defects in the work (as had been argued by EMG) nor relieve EMG of liability for defects. 7. The Tribunal found the Appellant liable and made a work order requiring it to make good the works in accordance with the original contract. 8. Although it is not stated in the reasons, it is clear that having made a work order, it was not necessary for the Tribunal to make any order regarding the cross claim for a money sum in rectification of the work. The orders made effectively dealt with both proceedings. The Appeal - Submissions and Evidence 1. In deciding the appeal, we have had regard to the following: 1. The reasons for decision appealed against. 2. The Notice of Appeal filed 3 June 2021 and attached documents which included a response to various paragraphs of the reasons for decision by way of grounds of appeal. 3. An application to stay the original decision with attached documents. 4. A reply to the notice of appeal with "annexure A" attached by way of written submissions. 5. Further evidence and submissions for the Appellant submitted in an email dated 8 June 2021. 6. Further evidence and submissions for the Appellant submitted in an email dated 2 July 2021 said to be in reply to the Respondents submissions of the same date. 7. Further evidence and submissions for the Appellant submitted in an email dated 6 July 2021 at 4.58pm which appears to relate to the stay application. 8. Further evidence and submissions for the Appellant submitted in an email dated 6 July 2021 at 5.03pm. 9. Further submissions for the Appellant submitted in an email dated 8 July 2021. 10. Submissions for the respondent submitted in an email dated 2 July 2021 relating to the stay application. 11. Submissions for the respondent submitted dated 7 July 2021. 12. A copy of the original applications in HB 20/14115 and HB 20/37757. 1. We note that we were provided with some but not all the material available to the Tribunal when it determined the matter. Further, the Respondents provided us with a typed transcript of the Tribunal hearing but the Appellant did not seek to rely upon it in its appeal. Grounds of Appeal 1. The Notice of Appeal was lodged 3 June 2021 and is within the 28 day time specified in clause 25(4) of the Civil and Administrative Tribunal Rules 2014. 2. On 18 June 2021 orders were made by S Westgarth, Deputy President regarding lodgement of evidence and submissions by the parties to the appeal. In addition, a stay was granted (on terms) until 9 July 2021. The appeal was listed for hearing on 17 August 2021. 3. It appears that the lockdown of greater Sydney due to the COVID pandemic prevented inspection of the property in preparation for a further hearing of the stay application. Accordingly, on 9 July, the stay was extended until 5pm on the day of the Appeal Panel hearing. At the conclusion of the Appeal Panel hearing, we extended the stay until the publication of this decision. 4. In determining the appeal, we have borne in mind that the Appellant is in effect, an unrepresented litigant, and that we should consider whether any appealable error arises from the grounds of appeal, the material provided and the decision of the Tribunal: Cominos v Di Rico [2016] NSWCATAP 5 at [13]. In doing so, we must, of course, afford procedural fairness to the respondent. 5. Doing the best we can from the material supplied by the Appellant, we were unable to find that the Appellant raised an error of law. None are mentioned in the Notice of Appeal and none were argued during the appeal. We were unable to discern any error of law from the material supplied with one possible exception. Parts of the Appellant's submissions when taken as a whole, might be understood as an assertion that the Member was biased against the Appellant. This might constitute an error of law. 6. We raised this with the Appellant at the start of the appeal and were told that the Appellant only wished to submit that the Member was in error in failing to give the proper weight to some evidence, or in failing to accept certain evidence. There was no submission that the Member pre-judged the matter or was not even handed between the parties. As a result, we understood the Appellant's case to be a challenge to factual findings rather than an allegation of bias. 7. In our view the Appellant raised a number of matters in its written and oral material which can be condensed to the following two grounds of appeal: 1. The Appellant said that the Member was in error in finding that Mr Gonda signed the "acceptance of work" before the job was completed. 2. The Appellant said that the Member was in error in finding that the work was performed by EMG in an unacceptable manner, when it should have been found that the damage occurred after EMG left the site. The Respondents' submissions 1. In summary, the Respondents submitted that the appeal should be dismissed because: 1. The Appellant had not identified an error of law and required the leave of the Appeal Panel to argue other grounds. 2. Leave should not be granted because the Appellant failed to establish that the decision was not fair and equitable, nor that the decision was against the weight of the evidence. No new evidence has arisen that was not reasonably available at the time of the original hearing. 3. The Appellant has not demonstrated a clear injustice. 4. Further, the Appellant should not be granted leave because the matter did not involve a matter of principle or public importance. 5. The Respondents sought costs in written submissions but abandoned that claim at the Appeal Panel hearing. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act). 2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the Appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. 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 Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 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. Even if an Appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that 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. Consideration of grounds of appeal 1. The Appellant did not submit that significant new evidence has arisen to support its arguments. Accordingly, the appeal grounds outlined above are restricted to the question whether the decision was not just and equitable or was against the weight of the evidence. First ground of appeal - the Member was in error in finding that Mr Gonda signed the "acceptance of work" before the job was completed 1. The Appellant said the work had been completed when the "acceptance of work" was signed. The Appellant asked us to take into account the conflict in the evidence as to when the "acceptance of work" was signed as support for its assertion that the work was complete at that stage. It pointed to the affidavit of V Gonda dated 2 March 2020 to the effect that the Gondas left the site at about 6.46pm yet the photo taken at the time had a timestamp of "5.51pm". The evidence from the neighbour Winter was that the Gondas called in at "approx. 6.30pm" to say they were leaving to drive back to Sydney. All this indicates they left closer to 7pm when the job would have been completed. 2. We do not accept that these conflicts are sufficient to cast any significant doubt on the finding. That is because there were two eyewitnesses, namely Mr & Mrs Gonda who said the document was signed before the work was completed. They were not cross examined about that. Further, there was a photo taken at about the same time indicating the work was not complete. 3. EMG's evidence on the other hand, was that there were two of its representatives on site that day. Evidence from one of them, Mr Suraj Parthak was in an affidavit dated 3 April 2020. The relevant parts read: 5. During the installation, Mrs Vashti and Mr Robert Gonda were present throughout the whole day. 6. At approximately 5:30 pm to 6 pm Mrs Vashti and Mr Robert Gonda inspected the job and they were satisfied with the material and workmanship. 7. Mrs Vashti and Mr Robert Gondor inspected all the surrounding fixtures and there were no damages. 8. The client read and signed the letter of acceptance. 1. That evidence does not go as far as to clearly state the critical fact, that the work was completed when the document was signed. Such might be inferred, but in the face of two eye witnesses deposing to the opposite, and the photo, such an inference is very weak. 2. From the materials we were given, there did not appear to be any evidence from the other member of the EMG team on site that day and no explanation of why that person did not give evidence. 3. To succeed the Appellant must persuade us that it has suffered a substantial miscarriage of justice in terms of the test in Collins v Urban outlined above that 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. 4. The Appellant has not persuaded us that it has suffered a substantial miscarriage of justice in those terms. First, we note there was evidence to support the finding. Next, there was no direct countervailing evidence and no explanation as to why potential countervailing evidence was not available. We consider the finding is not against the weight of the evidence. It was open to the Member to make that finding and the Appellant has not persuaded us that the finding is attended with any significant doubt. The decision of the Tribunal, in the circumstances, could not be seen as not fair or equitable. 5. In making that finding we are not persuaded that the Member fell into error in that particular evidence was given undue weight, that it involved an irrelevant consideration or that the conclusion was so unreasonable as to suggest error. 6. This ground of appeal fails. Second ground of appeal - the Tribunal should have found that the damage occurred after the EMG crew left the site. 1. The Appellant said it was unable to specify how the damage to the work occurred after it left the site but said it was not responsible for it. It suggested the house was a building site and any one of the builder Mr Johnson, or other tradespersons on site the next day could have caused the damage. 2. A similar difficulty arises with analysing this argument regarding the timing of events. There was a positive inference available from evidence of neighbours that the EMG crew left the site at 8.00 or 8.30pm on the Sunday evening. There is no evidence from the EMG crew about this. The neighbours' evidence appears to have been accepted by the Tribunal as it is recounted in the reasons without comment. 3. The evidence from Mr Johnson the builder is that he was on site by 9.00am the next morning. There was no mention of forced entry by vandals. Again, this evidence appears to have been accepted by the Tribunal as it is recounted in the reasons. 4. This leads to the critical finding of the Tribunal, as follows: So the question is how the granite became cracked, broken and out of plumb - to focus on a few of the shortcomings of the job - in that 12 hour period. I think it is fair to say that Mr Assad was unable to deliver a cogent explanation. I find that I'm entitled to draw an inference that the work was poorly executed in the first place. 1. In analysing the Appellant's submissions, we note the Tribunal only had to be persuaded on the civil onus of the balance of probabilities. Mr Johnson (whose evidence we were not provided with in the appeal) appears to have been accepted that he saw the unacceptable/damaged stonework when he arrived at 9.00am the morning after the EMG crew left. He was not cross examined to suggest that he or his contractors were responsible for the unacceptable quality or damage, or that he was mistaken in some way about his evidence. 2. Nor were we provided with evidence from the EMG crew present on site that the damaged/unacceptable work was not there when they left the site the night before, for instance, in order to found an inference of vandalism. 3. There was evidence to support the finding and no countervailing evidence or explanation as to why that evidence was unavailable. As far as we can deduce, there is only speculation to suggest it is incorrect. 4. We consider the Member analysed the evidence in an orthodox manner and can detect no error in the fact finding process. We think the finding is not against the weight of the evidence. Nor has the Appellant demonstrated that the decision was not fair or equitable. 5. The Appellant has not persuaded us that it has suffered a substantial miscarriage of justice in terms of Collins v Urban outlined above. 6. This ground of appeal must fail. Exercise of discretion 1. Even if we were persuaded that there was sufficient element of doubt about the factual findings to satisfy the test in Clause 12, we would not exercise the discretion in favour of allowing the appeal because the Appellant's case does not satisfy the matters enumerated at [84] in Collins v Urban in that there was no issue of principle or public importance, we did not find an injustice which was reasonably clear, nor a factual error unreasonably arrived at, nor that the Tribunal went about the fact finding process in an unorthodox manner. Conclusion 1. The Appellant has not been successful on any ground of appeal. 2. We make the following orders: 1. Leave to appeal is refused; and 2. To the extent then required, the appeal is dismissed. 3. The stay order is set aside from the date of these orders. ********** 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: 02 September 2021