Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Marcus v Carroll [2022] NSWCATAP 141 Hearing dates: 15 March 2022 Date of orders: 04 May 2022 Decision date: 04 May 2022 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Goldstein, Senior Member Decision: 1. Leave to appeal granted. 2. Appeal allowed, but only in so far as it concerned the appellant's claim for misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law (NSW) and the appellant's claim for misrepresentation in contravention of s 29 of that law. 3. Otherwise, the appeal is dismissed. 4. The order made by the Tribunal on 2 December 2021 dismissing the appellant's claim is set aside but only insofar as it concerned the appellant's claim for misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law (NSW) and the appellant's claim for misrepresentation in contravention of s 29 of that law. 5. The appellant's claims referred to in Order 2 and 4, in respect of which the appeal is allowed, are to be redetermined by a differently constituted Tribunal. Catchwords: CONSUMER LAW-supply and installation of timber flooring-alleged misleading and deceptive conduct, misleading representation and breach of contract. APPEALS-- material photographic evidence not addressed-error of law in respect of one of the appellant's claims only-leave to appeal-plain error such that it would be unjust to allow important finding to stand in respect of one of the appellant's claims only - leave to appeal not granted on the basis of new evidence. Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act (NSW) (2013) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Category: Principal judgment Parties: Marald Marcus (Appellant) James Carroll t/a Floor Sure (Respondent) Representation: Appellant Self-represented Respondent Self-represented File Number(s): 2021/356556 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 2 December 2021 Before: S Hausfeld, General Member File Number(s): GEN 21/41592 REASONS FOR DECISION Overview 1. The appellant, Mr Marcus, appeals from the dismissal of his consumer claim for a refund of the amount he paid the respondent, Mr Carroll, to supply and install some timber flooring at his home north of Sydney. 2. His complaint was that the new flooring was very different in colour from the existing timber flooring that was kept in a large part of the property. 3. For the reasons set out below, we have decided that the decision was affected by appellable error and must be set aside. The proceedings will have to be redetermined by a differently constituted Tribunal. The limited appeal right 1. Under s 80 of the Civil and Administrative Tribunal Act 2013 ('NCAT Act'), a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, as this is, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis that: …..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. Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion concerning the grant of leave which it will ordinarily only exercise in the circumstances described in Collins v Urban [2014] NSWCATAP 17 at [84 (2)], namely. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1 issues of principle; 2 questions of public importance or matters of administration or policy which might have general application; or 3 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; 4 a factual error that was unreasonably arrived at and clearly mistaken; or 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, The claim 1. In his application lodged in the Tribunal Mr Marcus alleged, amongst other things, that: …. We relied on the overall representation and statement made by James from Floorsure that he would be able to provide a spotted gum hardwood timber floor that would blend with our current flooring through the house in both lay and colour. If not for the representation made-we would not have engaged Floor sure to install the new timber floor. James made us aware that due to the wood being a different batch the floor wouldn't be an exact colour match, however the floors would blend and match colour as much as possible. The existing and new floors are very different in both colour and tone and as such do not blend or match as per representations made during quotation at our address and the quote provided. 1. In written submissions provided by Mr Marcus in advance of the hearing in the Tribunal it was contended that before the contract was made Mr Carroll represented that he would be able to install a spotted gum timber floor that would "closely match the existing timber floor in colour and tones". It was contended that this was not achieved. It was also contended that if this representation had not been made it was likely that a different flooring decision would have been made, namely to install either a hybrid spotted gum floor or a new and different carpet. Submissions were also made that there was misleading and deceptive conduct by Mr Carroll before the contract through his failure to disclose certain information. The Tribunal's decision 1. The Tribunal rejected claims made for misleading and deceptive conduct and for breach of contract. 2. As to the claim which the Tribunal identified as being for misleading and deceptive conduct, the Tribunal accepted that it was the appellant's partner, Ms Wyper, who had the pre-contractual discussions with Mr Carroll. 3. The Tribunal referred to Mr Carroll's denial that he said to Ms Wyper that the new flooring could match the existing already aged timber from a different batch. The Tribunal also referred to Ms Wyper's evidence that Mr Carroll said that any new flooring would be from a different batch, would not be an exact match, would have different patterns, but "it would be close". The Tribunal then said: 22. I am satisfied that the respondent had reasonable grounds for his "future" representations that the new flooring would not match exactly but would be close. Moreover, it appears to me that the new flooring uses planks of the same width as existing flooring, has similar range of patterns and colour toning, although it is clearly lighter, not yet having darkened with age: A2, p 29. I have no expert or other cogent evidence that the new flooring is not close to the existing flooring in appearance. 23 The applicant has not made out his misrepresentation case. 1. In rejecting the case for breach of contract, the Tribunal referred to that part of the quote for the works which stated "Coating to match in with the existing flooring as best as possible". The Tribunal said that this clause referred to "applying best endeavours to match the coating with the existing floor, not the timber." The Tribunal then said that the applicant had not tendered evidence that the coating of the existing and new flooring does not match. The Tribunal also said that the "applicant has presented no expert evidence or other cogent evidence that there were steps which a reasonable supplier should have adopted to match the coating on the existing and new flooring, or indeed to match the timber." Grounds of appeal concerning misleading and deceptive conduct-consideration 1. Given that the appellant was self- represented we have given consideration to grounds of appeal that emerge from the material presented by the appellant, subject to ensuring procedural fairness to the respondent: Cominos v Di Rico [2016] NSWCATAP 5 at [13]. 2. From the material referred to below it seems to us that the contentions put forward in the Notice of Appeal and in the written submissions on appeal provided by Mr Marcus raise alleged errors of law concerning the Tribunal's assessment that there was no cogent evidence that the new flooring was not close to the existing flooring in appearance. 3. As to this, we note that Mr Marcus raised a number of grounds of appeal in his Notice of Appeal involving both error of law and error of fact. 4. With respect to error of fact, for which leave to appeal was required, one of the grounds relied upon was that the decision was against the weight of the evidence, in particular, photographic evidence that the existing floor had a very different colour to the newly installed floor. The Tribunal made no reference to any photographic evidence. 5. The documents provided by Mr Marcus on appeal included photographs that were provided to the Tribunal at first instance showing the comparison between the existing and newly installed floor, namely Annexures E and O to Mr Marcus's written statement, dated 10 November 2021, presented to the Tribunal. (The photographs at Annexure E are black-and-white and those at Annexure O are in colour). There was no suggestion on appeal that these photographs did not, accurately, depict the comparative situation. 6. These photographs show a very stark mismatch in the colours of the respective floors with the newly installed floor being a white blonde colour compared to the existing floor which is a reddy brown colour. At the hearing of the appeal, Mr Carroll described this difference as the new being a long way from the existing flooring. 7. Whilst the Tribunal did refer to the new floor being "clearly lighter", we do not see how it was reasonably open to it to find on the basis of this photographic evidence that it had no "cogent evidence that the new flooring is not close to the existing flooring in appearance". 8. Furthermore, the opinion expressed by Mr Carroll that the new timber would start to naturally darken up like the existing timber over a period of years, which the Tribunal appeared to accept, namely that "the new flooring would not match exactly but would be close" did not justify the representation that the Tribunal accepted had been made. The representation was not qualified by reference to a situation that would develop over a lengthy period of time. 9. There was also a problem with the Tribunal's apparent acceptance of Mr Carroll's evidence about the new timber darkening over a period of years, namely that the Tribunal did not address the photographic evidence presented by Mr Marcus at Annexure R, which was said to be a photograph provided by the previous owner showing part of the existing floor in March 2014 when it was installed. This photograph of the existing floor in March 2014 also reveals it to be of a reddy brown colour again starkly different to the white blonde colour of the newly installed floor. If correct, this photograph tendered to contradict Mr Carroll's evidence about darkening because it showed that the starting colour of the existing floor when installed was quite a close match to the current colour of the existing floor. 10. At the hearing of the appeal, Mr Carroll took issue with the correctness of this photograph as depicting the existing floor at about the time its installation had been completed. However, the problem with the Tribunal decision was that this controversy was not addressed in the reasons. 11. We are satisfied that there was appealable error by the Tribunal in respect of this central factual issue as to the colour differences between the existing and the newly installed floors. 12. Whether the error be that these conclusions overlooked important photographic evidence, or failed to address a material part of the appellant's case, which are errors of law, or that the errors we have referred to meant that the decision was not fair and equitable is, in our opinion, immaterial in this situation. This is because if it be the latter we are satisfied that the appellant may have suffered a substantial miscarriage of justice and that the situation warrants the grant of leave to appeal because of what we see as a plain error with respect to a central fact which is readily apparent such that it would be unjust to allow the decision about the misleading and deceptive conduct case to stand. Grounds of appeal concerning the contract claim-consideration 1. We do not accept that there was any appealable error that would justify an order that there be a new determination of the contract claim. It was contended that the Tribunal erred in its construction of the relevant contractual term and that it was clear from the evidence that the wrong NSW timber species was used and that this was the source of the problem. 2. We do not accept that there was any material appealable error in respect of the Tribunal's conclusion that the appellant presented "no expert evidence or other cogent evidence that there were steps which a reasonable supplier should have adopted to match the coating on the existing and new flooring or indeed to match the timber". Unless that conclusion was successfully challenged, any error in respect of the Tribunal's construction of the contractual provision for the coating to match with the existing flooring as best as possible is inconsequential. 3. We consider that the Tribunal's assessment concerning the evidence presented in an attempt to show what a reasonable supplier would have done was, at least, reasonably open to it. 4. On appeal, Mr Marcus contended that it can be expected that a qualified timber tradesperson with 20 years' experience would correctly identify the species of an existing floor to be matched. Mr Carroll, strongly, disputed this contention. He says that the existing floor was spotted gum, as was the new floor that was installed, there was no discussion about the region from where the new flooring would be sourced and that the issue of region from where the wood was sourced was not material. 5. On the basis of the material we were provided with on appeal, the evidence concerning this question consisted of the appellant's presentation of conversations with various tradespeople, along with some information from the website of Polley Timber and from NHS Building Supplies about the colours of Queensland Spotted Gum compared to the colours of NSW Spotted gum. However: 1. None of the material from Polley Timber and NHS Building Supplies specifically addressed the circumstances in issue or provided any opinion as to what would be reasonably expected of a contractor in the circumstances of the present case. 2. No statements were presented from the potential witnesses with whom Mr Marcus had conversations. 3. The matters relayed to Mr Marcus by these potential witnesses with whom he had conversations did not contain any opinion as to what would be reasonably expected of a contractor in the circumstances. 1. Accordingly, we reject these grounds of appeal concerning the contract case. Grounds of appeal concerning procedural fairness 1. Mr Marcus contended that the Tribunal failed to provide procedural fairness because it did not allow him to comment upon and give evidence in relation to each issue to be determined and did not refer to an opportunity to cross-examine. He also complained about unfairness in the Tribunal allegedly permitting electronic photographs to be presented by the respondent but not from himself. Mr Carroll submitted that no procedural unfairness it occurred. 2. However, these grounds fail because the appellant did not provide a sound recording or transcript of passages concerning the relevant parts of what transpired at the hearing, as he was directed to on 13 January 2022 when directions were made for the conduct of the hearing of the appeal. Accordingly, we were unable to assess the merits of the procedural fairness grounds of appeal. Grounds of appeal concerning fresh evidence 1. This ground of appeal fails because the appellant did not establish that there the new evidence he sought to rely upon was not reasonably available at the time of the hearing. 2. As to this, we note that in the Notice of Appeal there was reference to obtaining evidence from an independent inspector with Australian Timber Floor Association. However, no such report was presented on appeal. 3. Instead, the fresh evidence that the appellant sought to rely upon consisted of an email from a Mr Campbell from Campbell Capital Building Materials sent to Mr Marcus on 28 January 2022. This included that it was "our professional opinion from the photos you have provided that the difference in appearance between the existing and new installed timber floor is caused by the use of New South Wales spotted gum. We acknowledge that the new floor will darken over time but very unlikely towards the existing floor". 4. Assuming, for present purposes, that this email from Mr Campbell was significant new evidence, Mr Marcus provided no basis for a conclusion that such material was not reasonably available at the time of the hearing. 5. Accordingly, this ground of appeal is rejected. Orders 1. It is clear from the appellant's written submissions to the Tribunal that he advanced claims for contravention of s 18 and s 29 of the Australian Consumer Law (NSW). 2. In these circumstances, and for the above reasons, we make the following orders: 1. Leave to appeal is granted. 2. Appeal allowed, but only in so far as it concerned the appellant's claim for misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law (NSW) and for misleading representation in contravention of s 29 of that law. 3. Otherwise, the appeal is dismissed. 4. The order made by the Tribunal on 2 December 2021 dismissing the appellant's claim is set aside, but only insofar as it concerned the appellant's claim for misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law (NSW) and for misleading representation in contravention of s 29 of that law. 5. The appellant's claims referred to in Orders 2 and 4, in respect of which the appeal is allowed, are to be redetermined by a differently constituted Tribunal. ********** 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: 04 May 2022