Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Huang t/as Auchland & Co v Zhang [2022] NSWCATAP 18 Hearing dates: 30 November 2021 Date of orders: 27 January 2022 Decision date: 27 January 2022 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member J McAteer, Senior Member Decision: (1) The application for leave to appeal is refused. (2) The appeal is otherwise dismissed. Catchwords: APPEAL – consumer contract – conveyancing services – breach of contract– no issue of principle Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act, 2013 (NSW), ss 62, 80, Sch 4, cl 12 Fair Trading Act 1987 (NSW), s 79F Cases Cited: Collins v Urban [2014] NSWCATAP 17 Leeda Projects v Zang (2020) 61 VR 384; [2020] VSCA 192 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Jan Er Huang trading as Auchland & Co (Appellant) Xiao Ling Zhang (Respondent) Representation: Appellant (self-represented) Respondent (self-represented) File Number(s): 2021/00268283 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 24 August 2021 Before: S Sutherland, General Member File Number(s): GEN 20/53541 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 24 August 2021. The respondent is a consumer and the appellant is a supplier of goods and services for the purpose of Australian Consumer Law. 2. The initial claim to the Tribunal concerned a claim by the consumer (as the applicant before the Tribunal) from the supplier (as the respondent before the Tribunal) concerning $500 expenses incurred in engaging another supplier, as well as a claim of approximately $6,000 for the loss of a benefit and emotional frustration arising from the manner of work performed. Background 1. The respondent and the appellant entered into an agreement for legal conveyancing services in the nature of purchase, transfer and registration of title for real property. The appellant (a licensed conveyancer) was engaged on 18 October 2017 to manage the settlement of the purchase and the respondent agreed to pay the appellant $800 for the service. 2. The respondent and her spouse exchanged contracts with the vendor for the purchase of a residential property at Marsden Park in New South Wales on 20 February 2019. 3. During the conveyancing process an issue arose as to how the interests of the respondent (as purchaser) and the co-purchaser were entered on the transfer document in respect of their respective percentage holding of the property as tenants in common. This aspect was of particular importance because the finance on the purchase including borrowing limitations and potential tax liabilities arising for the purchasers had been settled by them and their finance provider in a specific manner where the percentage that each purchaser owned (or was allotted) was significant. The purchasers also had agreed additionally what their individual legal interest in the property would be, consistent with their agreed interest as tenants in common. 4. The respondent to the appeal (as a purchaser) specified that the percentage shares of ownership be 25% for them and 75% for her spouse. However, around 10 April 2019 when the electronic transfer was submitted by the appellant it recorded the respondent's share as 30% and her spouse's share as 70% (drafted as ⅓ and ⅔). The purchase was completed on 16 April 2019. On 12 May 2019, having become aware of the manner in which ownership had been recorded; the respondent sent the appellant an email pointing out the error. The appellant purportedly denied responsibility for the "error". 5. The respondent made attempts to have the appellant rectify the error in respect of the recording of the percentages of ownership between her and her spouse for the property. Further email exchanges occurred in July 2019 where the appellant suggested that amending the loan documents with the finance provider as a method of resolving any issues arising from how the percentages on title were recorded. 6. However, on 22 August 2019 the respondent terminated the contract with the appellant and engaged another conveyancer who finalised the correct share percentage allotment on 2 December 2019. 7. On 23 December 2020, the respondent applied to the Tribunal for orders of payment of a sum of money that she had to pay to have the matter rectified by the other conveyancer, as well as a sum for a loss of benefit claim. 8. The reasons in the application for requesting an order were in summary: "I am lodging a complaint about Achland & Co's customer service in settling my purchase ... at Marsden Park in April 2019. … During settlement process I confirmed 'Tenants in Common' via email on 28 March 2019 being 75% and 25% between my husband and me. However Achland & Co incorrectly drafted the transfer as 2/3 and 1/3 split. This led to a big problem for us to proceed with refinance when our loan application was subsequently approved by Westpac Bank. The bank needs the ownership stated on the contract (75% / 25%) to match the land title (2/3 and 1/3). I wrote to Achland & Co on 12th May 2019 about the error and requested them to make the amendment. After multiple phone calls and emails Achland & Co still held the view that the error was not made by them. I called OSR to understand the matter and OSR advised the error came from the transfer request via conveyancer's PEXA lodgement. Then Achland provided Westpac Bank an amendment of Transfer but I was not following the right process OSR required. .. After that Achland rejected to provide further service and requested a new service payment to continue with the error amendment. Achland argued that I was doing Refinance so that I need to pay them a new service fee without acknowledging the main issue over the matter. Considering their rude attitude and irresponsive customer service I decided to engage another conveyancing service, …" 1. The Tribunal heard the application on 11 June 2021 and made orders on 25 August 2021 that the respondent as the supplier pay the applicant as the consumer $500.00 because apportioning the incorrect shares was not an exercise in reasonable care and skill, and this amounted to a breach of contract. The amount of damages was derived from the cost to the Consumer of placing them back in the same position had the breach not occurred, that is the cost of engaging the second conveyancer to correct the share allotment. 2. The claim concerning the loss of the negative gearing benefit was rejected by the Tribunal because it was too remote (not contemplated by both parties when entering into the contract). The claim for emotional frustration was dismissed due to lack of evidence. Those claims do not concern this appeal as the appeal has been brought by the appellant only on the orders against him. Notice of Appeal, history of appeal proceedings 1. The appeal was commenced by Notice of Appeal filed 20 September 2021. As the date of the orders of the Tribunal was 25 August 2021 the appeal was lodged within time. 2. The appellant included the following orders sought in his Notice of Appeal: "Orders Challenged on Appeal: The Respondent Jan Er Huang is to pay the Applicant Xiao Ling Zhang the amount of $500. Grounds of Appeal This order and decision derives from an inappropriate example and case. To accept or validate this order is to signify that a client can voluntarily terminate their representation from a licensed conveyancer, appoint a new licensed conveyancer to process and complete their work and then demand the previous conveyancer to pay the legal fees charging by the newly appointed conveyancer. The order also falsely suggested that a licensed conveyancer has the power to act on behalf of the Land Registry Services NSW to confirm or determine whether a stamped transfer is registrable or not registrable. Orders the NCAT Appeal Panel should make: The Licensed Conveyancer Jan Er Huang is not paying the amount of $500 to the Respondents as Achland & Co has carried out all necessary and reasonable endeavours to resolve any issues or errors on the percentage shared between two registered proprietors before the Respondent's mortgagee Westpac Banking Corporation settled and registering their refinanced loan and Achland & Co was willing to continue representing the Respondent to lodge and register the amended stamped transfer of (dealing) when settling with their refinanced loan from Westpac. The Respondents however voluntarily sought and appointed a new licensed conveyancer to act on their behalf for the completion of the remainder of their case." 1. The appellant relied upon the Notice of Appeal filed 20 September 2021, the Application for a Stay filed 20 September 2021 with annexures A-E, written submissions titled Grounds of Appeal dated 28 September 2021 (8 pages plus annexures 5 pages), as well as a bundle of documents filed 22 October 2021 consisting of the respondent's reply and other documents relied upon that had been filed with the Tribunal in first instance. 2. The respondent relied upon documents filed on 30 September 2021 under covering email with annexures of communications between them and their second conveyancer, and her Reply to Appeal filed 14 October 2021 attaching a three page submission supporting the decision of the Tribunal with annexures 18 pages. 3. The following background facts are not controversial: 1. the parties entered into an agreement in October 2017 for the appellant to provide the respondent with conveyancing services for the registration of the transfer for the land at Marsden Park; 2. a contract was exchanged on 20 February 2019 recording the purchasers' shares as tenants in common as 25% and 75%; 3. the respondent exchanged emails with the appellant concerning the percentage share allotment as tenants in common over the period 27 February 2019 to 26 March 2019. Importantly the final email sent at 9:17am on 26 March 2019 said: "Hi Lynn and Cynthia, please use this email (26 March 9:15am) as our last call and ignore my email sent last night. Chun Qi Chen 75% and Xiao Ling Zhang 25% Please reply to acknowledge this receipt. Thank you! Kind regards Lindy Zhang" 1. at 10:42am an email reply was received from the appellant's email account which stated: "Dear Lindy We confirm you're your shares of 'Tenants in Common' is below [sic] Chun Qi Chen 75% and Xiao Ling Zhang 25% Best regards Lynn" 1. an electronic transfer was lodged by the appellant Auchland & Co ABN: 21942301405 around 10 April 2019 (Ref: AP193786) recording the Transferee's interests as: CHUB QU CHEN 2/3 XIAO LI ZHANG 1/3 Tenants in Common. Consideration of the Appeal 1. Put plainly, an appeal is not a rehearing of a matter, but a reconsideration of the matter in first instance to examine whether the Tribunal erred in its approach to the evidence and material before it, and to determine whether in that approach and the conclusions that flow, the Tribunal fell into error. It does not matter whether, on the same evidence, we might reach a different conclusion to the Tribunal. We set out the legal basis of appeals of this nature below. 2. This is an appeal brought under s 80 of the NCAT Act. By that section the appellant is able to bring an appeal as a right on any question of law or with the leave of the Appeal Panel on any other ground. The other grounds are set out in the provisions of cl 12 of Sch 4 of the NCAT Act. Clause 12(1) provides as follows: 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. Question of Law 1. Where an appellant is not legally represented, it is appropriate for the Appeal Panel to consider whether the grounds of appeal raise a question of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast). In Prendergast, the Appeal Panel at [13] set out a non-exhaustive list of questions of law that might arise from Tribunal decisions. In summary, the questions of law identified are whether there has been a failure to provide proper reasons; whether the Tribunal identified the wrong issue or asked the wrong question; whether a wrong principle of law had been applied; whether there was a failure to afford procedural fairness; whether the Tribunal failed to take into account relevant considerations; whether the Tribunal took into account an irrelevant consideration; and whether there was no evidence to support a finding of fact; and whether the decision is so unreasonable that no reasonable decision-maker would make it. 2. We infer that the basis of the appellant's appeal is twofold. Firstly, the appellant raises a question of jurisdiction of the Tribunal to hear the initial application. In addition, having heard the application, the appellant appears to rely on a ground that the Tribunal took into account an irrelevant consideration, failed to take into account a relevant consideration, or that there was no evidence to support the finding of fact that the Tribunal made. This point may raise a question of law. 3. Neither party provided a copy of the transcript or sound recording of the hearing of the matter by the Tribunal, as directed if they wished to rely on anything said at the hearing. In that regard we only have the material before the Appeal Panel (including the reasons) to determine the appeal. 4. The appellant has submitted that the Tribunal made an error in interpreting the evidence in such a way as to show that the lodgement of the incorrect calculation of the allotment percentage, was due to the appellant's negligence or lack of skill. The appellant disputed at the hearing of the appeal (and as we understand it at the hearing before the Tribunal), that the error was caused by him. Whilst we do not have the benefit of the transcript of the proceedings below we note that the appellant at that time argued that (a) the error was not caused by him, and (b) the Tribunal did not have jurisdiction to hear a claim involving the professional actions of a licensed conveyancer. The same arguments were ventilated by the appellant in this appeal. The jurisdiction argument seemed however linked to the submission that a conveyancer does not have power to act on behalf of the Land Registry Services NSW to confirm or determine whether a stamped transfer is registrable or not registrable and therefore cannot be liable. Other than brief submissions this issue was not further explored by the appellant. 5. At the hearing of the appeal the appellant submitted that even though the order against him was for $500 in lodging the appeal with a fee of $438 he wanted the Appeal Panel to make clear that he had not acted without proper skill and care, as he was not responsible for the error in the lodged transfer document. The appellant said that the matter concerned his professionalism and to an extent his reputation. He said that the Appeal Panel needed to correct this matter. In addition, the appellant submitted that the existence of the order in its current form suggested that licensed conveyancers have the power to act on behalf of the Land Registry Services NSW to confirm or determine whether a stamped transfer is registrable or not registrable. 6. In respect of the recording of the allotments on the transfer, the appellant made two submissions. He submitted that a paper transfer was prepared and processed by the Office of State Revenue (OSR) on10 April 2019. 7. In respect of the transfer processed by the PEXA system the appellant submitted that it only provided for a figure expressed as a fraction in respect of the share allotment for tenants in common. The appellant submitted that he contacted PEXA at that time to alert them to the error when the notation of 2/3 and 1/3 was identified. The appellant submitted that he was advised by PEXA that (at that the time the transfer was processed) the PEXA system could only present the shares in a fraction format. The appellant submitted that PEXA advised that after settlement they could contact Revenue NSW to report the system error and request a manual amendment of the allotment percentage. 8. The appellant submitted in written submissions dated 28 September 2021 in support of their Grounds of Appeal at [4] that: "4. Due to the settlement on 16 April 2020 [sic] was a due date settlement if it was settled late. The vendor would charge an interest penalty on the clients. To avoid the interest penalty we were guided by the advice from PEXA to complete the PEXA transfer with the only option in their system of 1/3 to represent 25% and 2/3 to represent 75% to complete the settlement." 1. The respondent agreed with the orders and reasons of the Tribunal. She submitted that the findings were not wrong and not against the weight of evidence. 2. The respondent also submitted that there was no evidence that any error was attributable to either OSR or PEXA. 3. The Tribunal considered the appellant's argument that Revenue NSW/OSR made an error in the percentage allotment and rejected that argument. The Tribunal found that the evidence relied upon by the appellant established the opposite argument, that the appellant had made the error as Revenue NSW advised that they would need to provide a statutory declaration attesting to the error in the drafting of the percentages on the transfer. The Tribunal concluded that the responsibility for drafting the transfer and the correct shares rests with the purchaser's solicitor/conveyancer. We agree with this finding on the available evidence. 4. In our view the matters relating to refinancing and the payment and the correction of the duty itself are a distraction from the fundamental issue in the claim before the Tribunal and as a result this appeal. That being that the evidence established to the Tribunal's satisfaction that Auchland & Co drafted the Transfer that was submitted to PEXA. That transfer (contrary to the final instruction of the clients) recorded fractional shares as ⅔ and ⅓. 5. Whilst the appellant has made numerous assertions and submission that there was some problem with the PEXA system at the time the transfer was submitted, no evidence has been provided before the Tribunal to establish this. Reference is made to communications with PEXA which are not supported by any evidence. It seems to us illogical that if there was a glitch or some database problem with the system at that time, such a problem could be patched up by incorrectly recording the percentages on the system. These are significant issues not just for loan approvals and taxation purposes, but (as is noted above) for equity on title reasons and can amount to significant loss or gain of equity. A registered proprietor has an interest in real property in the manner recorded on the Certificate of Title (or now the electronic register) and this record is established by information submitted when the transfer is lodged. 6. In any event, the appellant's own submission confirms that he submitted the Transfer to PEXA in the form contrary to their clients' instructions as per [17] above. 7. The Tribunal at [28] did not accept the appellant's argument and submission. "28. I do not accept that Revenue NSW inserted two thirds and one third shares, there is not evidence from Revenue NSW that supports that proposition. The insertion of two thirds and one third was the responsibility of the respondent. There was a manual transfer that was prepared by the respondent, however that is not co-signed by the vendor acknowledging the 75 shares and 25 shares. The transfer was signed by the vendor on-line through PEXA. The electronic transfer could only have been prepared by the respondent as the responsible subscriber and signed by the vendor. There is no other reasonable hypothesis." 1. As we have noted there was no evidence that the OSR or PEXA made an error. It follows that as the transfer was prepared by the appellant, the error arose in the preparation/drafting of the transfer. The apparent failure to follow the client's instructions in the drafting and submission was found by the Tribunal to constitute an exercise lacking reasonable care and skill and as a result it amounted to a breach of contract. 2. We observe that on the appellant's own submissions about the necessity to express the allotments as a fraction rather than a percentage, no explanation is given as to why the transfer did not record ¼ and ¾ as the shares. 3. We agree with the findings of the Tribunal on the basis of the evidence and material before it. As a result we cannot discern any error in the approach of the Tribunal which would constitute an error of law, or so as to be against the weight of the evidence. 4. Having considered the decision of the Tribunal dated 25 August 2021, in our view it complies with the requirements of s 62(3) of the NCAT Act. 62 Tribunal to give notice of decision and provide written reasons on request …. (3) A written statement of reasons for the purposes of this section must set out the following— (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. 1. The Tribunal provided reasons after reserving on 11 June 2021. The reasons for decision set out the applicable law, being s 79F of the Fair Trading Act 1987 (NSW) as it relates to consumer claims for breach of contract. The relevant case law was addressed at [34] concerning exercising reasonable skill and care in the performance of relevant services. Likewise on the issue of damages and arriving at the position to order the appellant to pay the costs of the respondent in engaging another conveyancer to resolve the matter, the Tribunal had regard at [38] to the relevant law, referring to Leeda Projects v Zang (2020) 61 VR 384; [2020] VSCA 192. Decision against the weight of evidence 1. No evidence was submitted on appeal that establishes how the Tribunal fell into error. Whilst the appellant claims that the Tribunal erred in finding that they (rather than OSR/PEXA) caused the problem, no evidence was provided which established this. In our view, the weight of evidence went the other way whereby the evidence establishes that the transfer was prepared and submitted by the appellant in the form contrary to instructions, as we have found at [37] above. 2. In summary, we are not satisfied that the appellant has established that the finding was against the weight of evidence. 3. In the case of Collins v Urban [2014] NSWCATAP 17 the Appeal Panel dealt with what constitutes a substantial miscarriage of justice on appeal. At [76] to [79] the Appeal Panel observed: "76. 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. 77. 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, 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] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]." 1. The appellant has not established that the finding of the Tribunal was not open to it on the available evidence. The matter in our view was never a matter about correction of stamp duty and refinancing. The issue was that because the title was recorded contrary to the purchasers' instructions, and we also observe contrary to the contract, issues arose as set out at [5] above. Irrespective of whether the respondent and her spouse sought to refinance at some time post purchase, the transfer process had clearly been carried out erroneously during the conveyancing process which necessitated post settlement amendments on title. 2. Nor has the appellant established that the "evidence in its totality so strongly preponderates against the conclusion found by the Tribunal". As indicated above, in our view the weight of evidence supports the conclusion by the Tribunal. For these reasons we do not find any error by the Tribunal. 3. Consequently, leave to appeal should be refused: see cl 12(1) Sch 4 of the NCAT Act and Collins v Urban at [77]. Orders 1. The Appeal Panel makes the following orders: 1. the application for 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: 27 January 2022