Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rolls Royce Hire Sydney Aust. Pty Ltd v James [2022] NSWCATAP 116 Hearing dates: 23 March 2022 Date of orders: 19 March 2022 Decision date: 19 March 2022 Jurisdiction: Appeal Panel Before: G Ellis SC, Senior Member Dr J Lucy, Senior Member Decision: (1) Leave to appeal is refused. (2) Appeal dismissed. (3) No order as to costs. (4) If either party wishes to contend that a different costs order should be made, order 3 above ceases to have effect and the following orders apply: (a) Any application for a different costs order is to be filed and served, supported by evidence and submissions, within 14 days of the date of these orders. (b) Any evidence and submissions in response to the application for a different costs order is to be filed and served within 14 days thereafter. (c) Any such submissions should indicate whether the party accepts that costs should be determined on the papers, i.e. without the need for a further hearing. Catchwords: APPEAL - No error of law – Attempt to revisit rejection of set aside application – Leave to appeal refused Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14 Collins v Urban [2014] NSWCATAP 17 Olley v Marlborough Court Ltd [1949] 1 KB 532 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Rolls Royce Hire Sydney Aust. Pty Ltd - Appellant Sarah Miriam James - Respondent Representation: Solicitors: Stonebraker Lawyers (Appellant) Respondent (self-represented) File Number(s): 2021/00325475 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 2 November 2021 Before: C Pirina, Member File Number(s): GEN 21/41986, GEN 21/45465 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW)(the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 2 November 2021. 2. The application to the Tribunal was brought by the respondent, against the appellant. 3. The issue(s) in the appeal are whether there was an error or law and whether leave should be granted on the basis either that the decision was not just and equitable or that the decision was against the weight of the evidence. 4. For the reasons set out below, we have decided to refuse leave and dismiss the appeal. Background 1. The application related to an amount of $4,900 paid by the respondent to the appellant for car hire for her wedding which was originally to be held on 10 October 2021 but did not proceed due to COVID-19 restrictions. The respondent also sought an order that she did not have to pay any further amount to the appellant. Tribunal proceedings and decision 1. The application to the Tribunal was lodged on 7 October 2021. On 8 October 2021 the parties were advised that the application had been listed for conciliation and hearing on 2 November 2021. The documents upon which the respondent relied were received by the Tribunal on 22 October 2021. 2. By letter dated 21 October 2021 the appellant's solicitor sought leave for legal representation. In a letter dated 27 October 2021 the respondent replied to that request. 3. The matter was listed for final hearing on 2 November 2021, was heard in the absence of the appellant, and oral reasons for the Tribunal's decision were delivered at the conclusion of the hearing. 4. The Tribunal relevantly found that the respondent was entitled to a refund of $4,900 for services not delivered due to COVID-19 restrictions and that the respondent should be relieved from paying any further amount to the appellant. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) NCAT Act. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. 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. Submissions and evidence 1. In deciding the appeal, we have had regard to the following: * The Notice of Appeal lodged on 16 November 2021. * The Reply to Appeal lodged on 2 December 2021. * The submissions lodged by the appellant on 29 November 2021, 12 January 2022, 14 January 2022 (a copy of the 12 January 2022 submissions), and submissions in reply received on 3 March 2022. * The submissions lodged by the respondent on 24 February 2022. Notice of Appeal 1. The Notice of Appeal was lodged on 16 November 2021, within the time required by cl 25 of the Civil and Administrative Tribunal Rules 2014 (NSW). Grounds of Appeal 1. The grounds of appeal specified in the Notice of Appeal are quoted below: The decision was made without my participation as I was unwell and unable to participate (medical certificate provided). The decision was made contrary to the terms and conditions accepted by the parties, which is contrary to contract law. Also, the decision relied on oral evidence (as stated in order) without the oral evidence of myself and I was unable to dispute, and explain any evidence as is procedurally required for a just decision to be made. As shown in the set aside application and in the annexed summary of facts at annexure 'B', there is a bona fide ground of defence in this matter and pursuant to Byron v Southern Star Group trading as KGC Magnetic Tapes (1955) 123 FLR 352, if there is a bona fide defence then the matter should be heard regardless of the explanation for the delay. 1. The orders sought by the appellant were (1) that the decision be set aside, and (2) that the respondent be ordered to pay the appellant a further $4,410. 2. Leave to appeal was also sought on the same basis as set out in the grounds of appeal. It was contended that the decision was not fair and equitable due to the absence of a representative for the appellant and by reason of the terms and conditions which were said to be applicable. Secondly, it was submitted that the decision was against the weight of the evidence because the appellant did not have an opportunity to give evidence at the hearing and since the appellant's terms and conditions showed that a COVID-19 rebooking fee applied. Appellant's submissions 1. The appellant's submissions received on 29 November 2021 suggested the respondent made five bookings: 1. On 8 November 2019 for 10 October 2020, 2. On 11 August 2020 to 22 August 2021, 3. On 3 August 2021 for 29 October 2021, 4. On 24 August 2021 to 10 December 2021, and 5. On 30 September 2021 to 18 December 2021. 1. The initial terms and conditions contained the following words: If cancellation is required, the deposit already paid will be forfeited to cover costs incurred and is not transferable. Please note that all deposits are non-refundable. A minimum 30% payment of total cost is due upon booking confirmation. 1. In revised terms, some time after the first booking was made and apparently before the second booking was made, a provision which read as follows was added to the appellant's standard terms: **Covid-19 – as at 1st July 2020 a 10% administration fee was added to all bookings that have transferred their wedding to an alternate date** 1. The appellant contended that each of the five bookings incurred a 30% non-refundable deposit cost of $1,470, giving a total of $7,350, and that the last four bookings each incurred a 10% (ie $490) COVID-19 rebooking fee, giving a total for that fee of $1,960. It was the appellant's case that the respondent, despite having paid the initial costs of $4,900 in full, owed a further $4,410 which was calculated as $7,350 for the deposits plus $1,960 for the COVID-19 rebooking fee, giving $9,310, less the $4,900 paid. 2. The 12 January 2022 submissions of the appellant contained the affidavit of Mrs Schlebusch dated 12 January 2022. That affidavit suggested that it was on 1 July 2020 that the respondent added the term which imposed the COVID-19 rebooking fee. Otherwise, that affidavit appears to present the evidence that the appellant wished to rely on at the hearing. The accompanying written submissions also set out the case which the appellant wished to make at first instance and included submissions in support of the proposition that the finding that the contract was frustrated was not correct. 3. On 3 March 2022 the appellant's submissions in reply were received and with those two pages was provided a copy of Public Health Orders dated 25 September 2020 and 1 September 2021. Those submissions contended that, as the appellant's original terms included the words "subject to change without notice", it was entitled to introduce the term which imposed a 10% COVID-19 rebooking fee. 4. It was also submitted that the appellant was "under no obligation to provide notice to the Respondent about the change to the terms and conditions". That submission is contrary to the offer and acceptance framework of the law of contract and, while it is not necessary to decide that issue, nothing in these reasons should be taken to indicate acceptance of that proposition. It is not uncommon for an offer to include an indication that terms and conditions may be changed without notice but not a concluded contract. 5. It was conceded that the words cancellation and postponed were not defined in the appellant's terms and conditions. 6. The last proposition in the submissions was that "the current proceedings are an appeal of the original proceedings that were made without [the appellant] submitting any evidence. Therefore, reference to the decision at first instance is not relevant." That submission appears to be founded on the erroneous view that the appellant is, on appeal entitled to re-run the hearing. It is convenient to here record the rejection of that submission since the decision at first instance is relevant as the appellant needs to establish either an error of law in that decision or a basis that warrants leave to appeal from that decision. 7. In oral submissions for the appellant, despite not being raised as an error of law in the Notice of Appeal, it was contended that the finding that the contract had been frustrated constituted an error of law. Reference was made to, and reliance placed on, the written submissions which went to that issue. Respondent's submissions 1. In her written submissions, received on 24 February 2022, the respondent contended that cancelling and postponing were different and that she never cancelled her booking, only postponed it due to COVID-19 restrictions. She suggested that there was nothing either said or sent to her in writing by the appellant in relation to the fees which are now sought. It was the respondent's contention that the decisions made at the first instance hearing on 2 November 2021, and when the appellant's stay application was refused by a differently-constituted Appeal Panel on 8 December 2021, were correct. 2. The oral submissions of the respondent did not add to her written submissions. She referred to the appellant's lack of service and consultation. Appellant's submissions in reply 1. During submissions in reply for the appellant, the amount alleged to be owing was, without explanation, reduced to $2,450: $1,470 (30% of $4,900) for the initial booking that was said to have been cancelled, no charge for the second booking, a COVID-19 rebooking fee of $490 (10% of $4,900) for each of the third and fourth bookings, and a waiver of any charges in relation to the fifth booking. 2. It was contended that the second booking was unable to proceed due to COVID-19 restrictions but each of the other four bookings was able to proceed on the intended dates. 3. There was also a submission that the unilateral introduction of the COVID-19 rebooking fee was not a relevant issue as that additional term was included in revised terms sent to the respondent when the second booking was made. However, that raises the question of whether terms can be added to a contract after it has been made, an issue which was considered more than 70 years ago in Olley v Marlborough Court Ltd [1949] 1 KB 532. Consideration 1. The grounds of appeal were based on an explanation for the absence of any attendance for the appellant at the first instance hearing and a submission that the appellant had a bona fide defence. As such, those grounds do not raise an error of law but instead seek to revisit the set aside application. 2. In other words, to the extent that the Notice of Appeal should have set out errors of law, it did not present as an appeal from the decision made in favour of the respondent at first instance on 2 November 2021 but as an appeal from the decision made to refuse the set aside application on 8 November 2021. 3. Even if this appeal were to be treated as an appeal from the set aside application, it would fail as there does not appear to be any error of law in relation to that decision. 4. Although we were not provided with a transcript of the hearing, a recording of that hearing was provided. As we were not provided with copies of the relevant documents relating to the application, we sought and obtained the approval of both parties to obtain and consider those files: the file for the substantive application (GEN 21/41896), and the file for the unsuccessful set aside application (GEN 21/45465). 5. The application to set aside the first instance decision gave the following explanation for non-attendance on 2 November 2021: We were absent when the Tribunal made the decision as our solicitors sought leave to represent and we did not receive any response and assumed leave was granted. Subsequently, our solicitors were unable to join the hearing due to technical difficulties. 1. That application was refused on 8 November 2021 because no adequate reason for non-attendance had been provided. 2. It is to be noted that a different reason for non-attendance was provided in this appeal, namely that the appellant's Mr Schlebusch was unwell, and a medical certificate was provided. However, (1) that medical certificate was not signed, (2) it did not address inability to attend on 2 November 2021, and (3) only suggested he may be unable to leave home, which did not prevent attendance by telephone. Further, the affidavit of Mrs Schlebusch dated 12 January 2022 began by indicating that she "was the main contact and person dealing with the matter …". 3. Accordingly, the reasons advanced in the appeal for non-representation of the appellant at the 2 November 2021 hearing provide no adequate explanation for the failure to attend by either Mr or Mrs Schlebusch and no explanation has been provided for why an explanation different to that provided in support of the set aside application was advanced in support of the appeal. 4. It was suggested the appellant has a defence in that the COVID-19 rebooking fee applied. However, overlooking the question of whether the appellant was entitled to unilaterally add that term to its contract with the respondent, that aspect is not an error of law in the decision at first instance but is a defence which the appellant now wishes to raise. An appeal is not an opportunity to either re-run the hearing or to raise defences that could have been pursued at the hearing. 5. Moving to the contention that the decision was not just and equitable, two reasons were given. The first was the absence of any representative of the appellant at the first instance hearing. The second was that the appellant's terms and conditions revealed that a COVID-19 rebooking fee applied. Both those matters have been considered and rejected. 6. The appellant's case was that it was entitled to retain the $4,900 that was paid and obtain a further $4,410, reduced during the hearing of the appeal to $2,450, despite providing no evidence of service to the respondent and having no evidence as to costs it incurred. We are not persuaded that the decision at first instance was not just and equitable. 7. The second basis upon which leave to appeal was sought was that the decision was against the weight of the evidence, based on the absence of consideration of the appellant's rebooking fee. As such, the second basis provided the same arguments as were put in support of the set aside application but under a different heading. It is sufficient to record that the decision at first instance does not appear to be against the weight of the evidence that was available at that hearing. 8. Accordingly, we are not satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision challenged in this appeal was not just and equitable, nor are we satisfied that it may have suffered a substantial miscarriage of justice because the decision was against the weight of the evidence. As a result, we are of the view that no basis has been established for leave to appeal to be granted. 9. It only remains to consider the appellant's contention that there was an error of law in that the subject contract was not frustrated. That is an issue that was not raised in the Notice of Appeal and there was no application to amend the grounds of appeal. This point was included, for the first time, in the appellant's written submissions and referred to during the hearing. However, we do not consider it procedurally fair to consider that issue in circumstances where it was not properly raised and the respondent is self-represented. In addition, the question of whether a contract has been frustrated is partially dependent upon findings of fact, and we see no basis for admitting the new evidence the appellant seeks to rely upon in this appeal to support its frustration argument. 10. At the conclusion of the hearing of the appeal, we raised with the appellant's solicitor the question of whether the amount of $4,900 had been paid by the appellant to the respondent, as ordered on 2 November 2021, since an application for a stay of that order had been refused. 11. The solicitor's response was that the appellant had been unable to pay that amount. That response suggests the appellant is insolvent in that it is unable to pay its debts as and when they fall due. Further, since the appellant was legally represented at the hearing of the appeal, it could be said that it was carrying on business. It is noted that the directors of a company can be held personally liable if it is carrying on business while it is insolvent. 12. It is also noted that there is an inconsistency in an appellant seeking an order in its favour that will bind the respondent when it has not complied with an order in favour of the respondent which binds the appellant. Costs 1. On 8 December 2021 the appellant was granted leave to be legally represented on the condition that it could not recover any legal costs. 2. On the other hand, the respondent has been successful. However, as the respondent was self-represented and the decision of the High Court in Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14 establishes that a self-represented party cannot recover costs for time spent on pursuing or defending a claim in a court or tribunal, it does not appear that the respondent would have any costs of the appeal. 3. As the respondent did not have an opportunity to make submissions on costs during the hearing, the practical course is to make no order as to costs but provide a facility for submissions to be made if a different costs order is sought. In other words, if the respondent does not lodge any submissions within 14 days of the date of the orders made in this appeal, then there will be no order in relation to the costs of the appeal, the effect of which is that each party bears their own costs of the appeal. Conclusion 1. For the reasons set out above, the orders that will be made are as follows: 1. Leave to appeal is refused. 2. Appeal dismissed. 3. No order as to costs. 4. If either party wishes to contend that a different costs order should be made, order 3 above ceases to have effect and the following orders apply: 1. Any application for a different costs order is to be filed and served, supported by evidence and submissions, within 14 days of the date of these orders. 2. Any evidence and submissions in response to the application for a different costs order is to be filed and served within 14 days thereafter. 3. Any such submissions should indicate whether the party accepts that costs should be determined on the papers, i.e. without the need for a further hearing. ********** 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: 19 April 2022