Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Awad v 316 Plumbing Pty Ltd [2021] NSWCATAP 260 Hearing dates: 30 August 2021 Date of orders: 03 September 2021 Decision date: 03 September 2021 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member S Goodman SC, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is otherwise dismissed. Catchwords: APPEALS – whether error of law – whether leave to appeal should be granted Legislation Cited: Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Category: Principal judgment Parties: Adnan Awad (Appellant) 316 Plumbing Pty Ltd (Respondent) Representation: Appellant - self-represented Mr L McGilvray - Respondent File Number(s): 2021/00180114 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 26 May 2021 Before: A Nightingale, Member File Number(s): HB 21/02108 REASONS FOR DECISION Introduction 1. The appellant homeowner appeals, and seeks leave to appeal, from a decision of the Consumer and Commercial Division of the Tribunal dated 26 May 2021, in which the Tribunal ordered the respondent to pay to the appellant the sum of $1600, instead of the $4290 that the appellant had sought in his application to the Tribunal. 2. For the reasons set out below, the application for leave to appeal is refused and the appeal is otherwise dismissed. The Tribunal's reasoning 1. The reasoning of the Tribunal was set out in a Statement of Reasons ("Reasons") dated 26 May 2021 and may be summarised as follows. 2. The appellant was constructing duplex units as an owner/builder (Reasons [7]). 3. On 7 August 2018, the appellant and the respondent plumbing company entered into a contract ("Contract") for the completion of plumbing work (Reasons [22]). 4. The respondent undertook plumbing works and issued an invoice dated 13 August 2018, for what was described as "Internal drainage", which was paid by the appellant (Reasons [8], [15]). 5. The evidence of Mr McGilvray, director of the respondent, was that the "Internal drainage" work done by the respondent was the laying of pipes prior to the pouring of the slab (Reasons [15]). 6. On 1 September 2020, the respondent repudiated the Contract when Mr McGilvray informed the appellant that the respondent had insufficient time to complete the contracted plumbing works (Reasons [10], [23]). The appellant accepted that repudiation and entered into a contract with another plumbing company, Work Regard Plumbing Pty Ltd ("WRP") for the completion of the work the subject of the Contract (Reasons [11], [23]). 7. On 18 December 2020, WRP provided an invoice to the appellant (Reasons [11]), which included: "Variation Cut out bond deck and install internal drainage for both units Ran copper internal for main water, rain water and gas $4290 (GST incl)." 1. On 17 January 2021, the appellant filed his application with the Tribunal (Reasons [3]). 2. On 20 January 2021, WRP provided a letter to the appellant, signed by a director of that company (Reasons [12]), that stated: "Work Regard Plumbing completed the below works at [the appellant's address]: (a) Internal drainage to the ensuite, laundry and kitchen for both units (b) Roughed in internal for gas main and water main for both units (c) Roughed in water tanks for both units (d) Roughed in kitchen for both units" (emphasis added) 1. The evidence of Mr McGilvray was that: 1. "Internal drainage to the ensuite, laundry and kitchen for both units" was a reference not to "internal drainage", but instead a reference to sewer stack work, or stack systems, which is sanitary plumbing and not internal drainage work (Reasons [17]-[18], [27]); and 2. "Roughed in internal for gas main and water main for both units" was a reference to work that the respondent had not completed and in respect of which the respondent had offered to refund $1600 to the appellant (Reasons [19]). 1. The appellant bore the onus of proving the loss that he had suffered as a consequence of the respondent's repudiation of the contract (Reasons [24]). The appellant claimed to have incurred costs of $4290 paid to WRP for internal drainage work he had already paid the respondent to perform (Reasons [1], [25]). However, the Tribunal was satisfied that the appellant had proved his loss only to the extent of $1600 because: 1. Mr McGilvray's evidence was that: 1. the internal drainage work described in the WRP invoice dated 18 December 2020 and the WRP letter dated 20 January 2021 was not in the nature of internal drainage work but instead sanitary plumbing (Reasons [17]-[18], [27]); 2. the respondent had completed the internal drainage work the subject of its 13 August 2018 invoice but had not completed the roughins to the garage which formed part of the work in a later invoice and in respect of which it had offered to refund $1600 to the appellant (Reasons ([2], [19], [29], [31]-[32]); 1. the appellant, despite having a letter from WRP dated 20 January 2021, did not adduce any evidence from the director of WRP as to the nature of the work performed by WRP, nor did the appellant provide any further invoices concerning subsequent plumbing work (Reasons [26]); and 2. the Tribunal accepted the evidence of Mr McGilvray as to what is "Internal drainage", noting that he was a qualified plumber (Reasons [29]). The nature of the appeal 1. This is an internal appeal. Internal appeals may be made as of right on a question of law, and otherwise with the leave of the Appeal Panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 ("NCAT Act"). Appeal as of right 1. Where, as in the present case, the appellant is not legally represented it is appropriate for the Appeal Panel to review the stated grounds of appeal, the material provided, and the decision of the Tribunal to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: Cominos v Di Rico [2016] NSWCATAP 5 at [13]. 2. Having done so, the Appeal Panel considers that there is an issue as to whether the refusal by the Tribunal to receive into evidence a letter from the Department of Fair Trading to the appellant dated 29 April 2021 was a denial of procedural fairness. 3. Section 38(5)(c) of the NCAT Act and the general law rules of procedural fairness require that the Tribunal afford each party a reasonable opportunity to appear and present their case. Failure to afford procedural fairness is an error of law. If such an error of law were to be established it would also be necessary to consider whether the appellant could have obtained a different result if the letter had been admitted into evidence by the Tribunal: Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54. 4. The Tribunal rejected the tender of the letter from the Department of Trading to the appellant dated 29 April 2021 because it was not satisfied that the respondent had been served with it. The partial transcript provided to the Appeal Panel by the appellant records that the Tribunal nevertheless told the appellant that he could give oral evidence of the contents of that letter. 5. In these circumstances, the Appeal Panel is not satisfied that there was a failure by the Tribunal to accord procedural fairness to the appellant. In any event, this ground of appeal fails because the admission into evidence of that letter would not have made any difference to the outcome. In particular, the letter does not prove, as the appellant appeared to suggest, that the respondent acted in breach of the Home Building Act,1989. 6. Accordingly, the Appeal Panel is not satisfied that the Tribunal erred in law. Leave to appeal 1. The appellant seeks leave to appeal on various bases. 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 Sch 4 to the NCAT Act. Clause 12(1) provides: 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). 1. In Collins v Urban [2014] NSWCATAP 17 ("Collins"), an Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act 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. If the appellant were to satisfy the Appeal Panel that cl 12(1) of Sch 4 was satisfied, the Appeal Panel would then need to consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. In Collins, 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; or (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; or (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. Clause 12(1) of Sch 4 to the NCAT Act requires that the Appeal Panel be satisfied that the builder may have suffered a substantial miscarriage of justice because of one or more of the matters in subparagraphs cl 12 (1)(a), (b), or (c). These are considered in turn below. Not fair and equitable 1. The appellant provided a series of reasons as to why the decision of the Tribunal was not fair and equitable. 2. The first reason is that not all of the evidence that he provided to the Tribunal was taken into consideration. The evidence that the appellant suggests was not taken into account was: 1. the letter from the Department of Trading to the appellant dated 29 April 2021. As this letter was not in evidence, there can be no error in failing to take it into account. For the reasons noted earlier, there was also no error in refusing to admit it into evidence; 2. the WRP letter dated 20 January 2021. However, it is clear from the Reasons at [12] and [26] that the Tribunal did consider this letter; 3. a series of SMS messages between the appellant and Mr McGilvray which led up to the repudiation of the Contract on 1 September 2020. There is no basis from which to conclude that these were not considered. Further, it is likely that they were considered as the Tribunal held that the respondent repudiated the Contract on the basis of the information in one of them, namely Mr McGilvray's indication that the respondent had insufficient time to complete the contracted works (Reasons [10] and [23]). 1. The appellant also suggested that a bundle of evidence that he provided to the Tribunal was not considered. However, that bundle was not included in the papers provided by the appellant to the Appeal Panel, despite directions made by the Appeal Panel requiring that this be done if such an argument was to be made. Further, the appellant did not identify any particular document within that bundle which ought to have been considered other than the 20 January 2021 letter from WRP which, as noted above, was considered by the Tribunal. In these circumstances, the Appeal Panel is not satisfied that there was a failure to consider any material evidence. 2. The second reason is that the respondent provided insufficient evidence and false claims. As to the sufficiency of the evidence, it was the appellant who bore the onus of proving the loss he claims to have suffered. The Tribunal found that the appellant failed to discharge that onus, for reasons including that he did not adduce evidence from the director of WRP and instead relied only upon the 20 January 2021 letter on the central question of the nature of the work done by WRP; and the Tribunal's acceptance of the evidence of Mr McGilvray for the respondent. The Appeal Panel is satisfied that the finding made by the Tribunal that the appellant had failed to discharge his onus of proof was open to the Tribunal and that to the extent that the Tribunal relied upon the evidence of Mr McGilvray, his evidence was sufficient to allow the Tribunal to draw the conclusions that it did. 3. As to the submission that the respondent made false claims, the Appeal Panel is not satisfied that there is any substance to this submission, for the following reasons. 4. First, the allegation of falsity to a large extent rests upon the premise that the appellant's evidence ought to have been accepted by the Tribunal over the evidence of the respondent. For the reasons set out above, and taking into account the matters raised by the appellant, the Appeal Panel is satisfied that the findings made by the Tribunal were open to it on the evidence. 5. Second, many of the matters set out by the appellant do not appear to be supported by evidence that was before the Tribunal. Rather, they are matters of mere assertion by the appellant, or new evidence. For the reasons set out later in these Reasons, the new evidence is not taken into account on this appeal. 6. For the above reasons, the Tribunal is not satisfied that the decision was not fair and equitable. Against the weight of evidence 1. The appellant acknowledged in his submissions to the Appeal Panel that his case on appeal was essentially that the Tribunal should have preferred the evidence he led to that of the respondent. However, a decision is not against the weight of evidence merely because the Tribunal prefers the evidence of one party over that of another party. For a decision to be against weight of evidence, the evidence in its totality must preponderate so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach: see Collins at [77]. 2. The appellant's submissions concerning whether the decision was against weight of evidence were in essence the same as those concerning whether the decision was fair and equitable. The Appeal Panel is not satisfied that the decision reached by the Tribunal was against the weight of evidence. That decision appears to be consistent with the evidence that was before the Tribunal. Significant new evidence is now available that was not reasonably available at the time of the hearing 1. Clause 12(1)(c) applies where evidence is significant, is now available, but was not reasonably available at the time of the hearing. 2. Whether evidence was "not reasonably available" at the time of the hearing is not considered by reference to any subjective explanation from the party seeking leave to rely on it but by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained it: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]. 3. The appellant identified the following evidence as new evidence upon which he wished to rely on in the appeal: 1. a letter from the Department of Fair Trading to the appellant dated 28 January 2021; 2. the letter from the Department of Fair Trading to the appellant dated 29 April 2021; 3. a letter from the director of WRP dated 18 June 2021 addressed "To whom it may concern", which is in nature of a statement of evidence from that director, together with attachments; 4. a quotation from WRP; 5. a second invoice from WRP to the appellant dated 18 December 2020; 6. a series of photographs; and 7. a statement of evidence of the appellant provided to the Department of Fair Trading dated 24 March 2021. 1. As to (1), (4), (5) and (7), this evidence was clearly available to the appellant at the time of the hearing. 2. As to (2), the appellant did try to rely upon the letter from the Department of Fair Trading to him dated 29 April 2021, but that was rejected. It is not new evidence. 3. As to (3), this evidence was not in existence until after the hearing. As noted above, it is a statement of evidence of the director of WRP. The appellant explained that this was produced in response to the Tribunal's Reasons. However, this is not an acceptable explanation as to why such evidence was not reasonably available at the time of the hearing, particularly when that same director was prepared to sign the WRP letter dated 20 January 2021, after the application had been filed. 4. As to (6), the appellant submitted (without evidence) that some were taken before and some were taken after the hearing. Those taken before the hearing were available evidence. No explanation was provided as to why the photographs taken after the hearing were not reasonably available at the time of the hearing. 5. For the reasons set out above, the Appeal Panel is not satisfied that any of the evidence sought to be adduced as new evidence should be admitted. In particular, the Appeal Panel is not satisfied that any of this evidence was not reasonably available to the appellant at the time of the hearing. Further, with the exception of the statement from the director of WRP (i.e. (3) above), none of the new evidence appears to be significant to the issues for determination. Conclusion as to whether leave to appeal should be granted 1. The Appeal Panel is not satisfied that any of cl 12(1)(a), (b) or (c) of Sch 4 to the Act is satisfied. It follows that leave to appeal should be refused. Orders 1. The Orders of the Appeal Panel are: 1. Leave to appeal is refused. 2. The appeal is otherwise 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: 03 September 2021