Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners – Strata Plan No 80211 v Control Services Pty Ltd & Killen [2022] NSWCATAP 319 Hearing dates: 25 July 2022 Date of orders: 10 October 2022 Decision date: 10 October 2022 Jurisdiction: Appeal Panel Before: I R Coleman SC ADCJ, Principal Member M Gracie, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. Catchwords: APPEAL – NCAT – appeal from Consumer and Commercial Division – no question of law - leave to appeal – contract with respondent for fire safety services – limited scope of work - claim for rectification costs associated with non-compliant annual fire safety statements – no nexus between damages claimed and non-compliant annual fire safety statements - no substantial miscarriage of justice – no issues of principle or public importance Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Environmental Planning and Safety Regulation 2000 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ros v Commissioner of Police [2020] NSWCATAP 70 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Weston v Integra Windows and Doors Pty Ltd [2022] NSWCATAP 201 Texts Cited: Nil Category: Principal judgment Parties: The Owners – Strata Plan No 80211 (Appellant) Control Services Pty Ltd & Geordie Killen (Respondents) Representation: J Veri (Appellant) G Killen (Respondents) File Number(s): 2022/00134588 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 14 April 2022 Before: J Ringrose, Tribunal Member File Number(s): GEN 21/52308 REASONS FOR DECISION Introduction 1. By a Notice of Appeal filed on 10 May 2022, the Owners – Strata Plan (SP) No 80211 (Appellant) appealed from orders made in the Commercial and Consumer Division of the Tribunal (Tribunal) on 14 April 2022 dismissing an Application brought by the Appellant against Control Services Pty Ltd (Control Services) trading as Control Fire Protection (CFS) and Geordie Killen (Respondents). 2. SP No 80211 comprises a 3-storey residential building with a single level basement carpark at William Street Granville, NSW (Premises). CFS trades as a fire control services contractor and Mr Killen is a director of Control Services and a certified Competent Fire Safety Practitioner. The Appellant engaged CFS to undertake fire control services at the Premises and relevantly for the purposes of this appeal, for the issuing of compulsory Annual Fire Safety Statements (AFSS) for the Premises for 2019 and 2020. 3. By leave, both before the Tribunal and on the appeal, the Appellant was represented by Janina Veri, the Secretary of the Strata Committee for SP No 80211 and the Respondents were represented by Mr Killen. 4. These are our reasons for refusing the Appellant leave to appeal from the Tribunal's findings. Appellant's Contentions 1. Before the Tribunal and on appeal, the Appellant claimed damages of $8,960 for an alleged breach of contract by CFS and/or Mr Killen for issuing AFSSs for 2019 and 2020 that the Appellant contended did not comply with the contract scope of works between the Appellant and CFS. 2. The scope of works is evidenced by a document described as "Proposal Contract" issued to the Appellants and dated 26 June 2019 (Contract). It was common ground that this document contained the terms, conditions and the scope of work pursuant to which CFS was to perform its work for the issuing of the AFSSs at the Premises. 3. Additionally, the Appellant contended that irrespective of the scope of works, the Contract obliged the Respondents to issue a compliant AFSS which required CFS to inspect all of the items requiring certification listed in the Fire Safety Schedule in the Construction Certificate (CC) dated 20 July 2006 that was issued by Parramatta (later Cumberland) City Council (Council) as the Principal Certifying Authority (PCA) for the Premises. 4. It was common ground that the AFSSs for 2019 and 2020 did not deal with all items required under the Fire Safety Schedule and therefore, those AFSSs issued by CFS for those years did not comply with Division 5 of Part 9 the Environmental Planning and Safety Regulation 2000 (NSW). 5. The Appellant contended that it relied upon the Respondents to ensure that the AFSSs complied with all regulatory requirements and assumed that it would have been informed by CFS if CFS required a copy of the Fire Safety Schedule in the CC to issue a fully compliant AFSS. The Appellant submitted that if it had been informed by the Respondents that CFS was unable to issue a fully compliant AFSS, irrespective of the Contract scope of works, the Appellant would have engaged another contractor to undertake the issuing of the AFSSs. Respondents' Contentions 1. The Respondents filed a Reply to Appeal on 3 June 2022. The Reply to Appeal sought orders upholding the Tribunal's decision. 2. The Respondents contended before the Tribunal and on appeal that: 1. The Contract scope of works expressly excluded certain items that were not included by CFS in the AFFSs; 2. The AFSSs issued by the Respondents did not purport to be a complete certification of all items that may have been required by the Council; 3. It was for the Appellant to either engage another contractor with respect to inspection and certification of the items not in the CFS scope of works but required by the Fire Safety Schedule or request CFS to undertake those additional works at further cost; and 4. The Appellant did not provide the Respondents with the Fire Safety Schedule in the CC. Tribunal's Findings 1. The Tribunal found that "prima facie [the] respondents may not have provided appropriate Annual Fire Safety Statements" but the Appellant had failed to establish "that the damages claimed against the respondents were consequential losses flowing from breaches by the respondents." Grounds of Appeal 1. The sole ground of the appeal is the Appellant's contention that the Tribunal erred in finding that Appellant failed to prove that it suffered any loss by reason of the acts or omissions of the respondents relating to the non-compliant AFSSs issued by CFS in 2019 and 2020. Statutory Grounds for Appeal 1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that an internal appeal (which this is) may be made as of right to the Appeal Panel on a question of law and otherwise with the leave (that is, with the permission) of the Appeal Panel. 2. An internal appeal is not a re-hearing of the original proceedings or a mere opportunity for a party dissatisfied with the outcome in the original proceedings to re-argue its case. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 (BKB Motor Vehicles), the Appeal Panel said at [10]: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal. 1. BKB Motor Vehicles was endorsed by the Appeal Panel in Weston v Integra Windows and Doors Pty Ltd [2022] NSWCATAP 201 (Weston) at [42]. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [13], the Appeal Panel set out a non-exclusive list of questions of law including whether there has been a failure to provide proper reasons, whether there was a failure to afford procedural fairness, and whether the Tribunal failed to take into account relevant (ie, mandatory) considerations. 3. In the absence of any question of law raised by an appeal, 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 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that an 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. there was significant new evidence that was not reasonably available at the time the proceedings under appeal were being dealt with. 1. In the Appeal Panel's decision in Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 may have been suffered where "there was a significant possibility", or "a chance that was fairly open", that a different and more favourable result would have been achieved for the appellant had the relevant circumstances in pars (a) or (b) of cl 12(1) not occurred or if the fresh evidence under par (c) of cl 12(1) had been before the Tribunal at first instance. 2. Further, even if an appellant from the decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal. In Collins, the Appeal Panel at [84(2)] stated that ordinarily it is appropriate to grant leave to appeal only in certain matters. Those types of matters include issues of principle, questions of public importance, an injustice which is reasonably clear so that it would be unjust to allow the finding to stand, a factual error that was unreasonably arrived at and clearly mistaken, or where the Tribunal went about the fact finding process 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. 3. Where, as in this case, the Appellant is self-represented, it is appropriate for the Appeal Panel to review the stated grounds of appeal, the material provided by the parties and the Tribunal's decision which is being challenged, to ascertain 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 (Cominos) at [13]. 4. In Ros v Commissioner of Police [2020] NSWCATAP 70 (Ros) at [21] the Appeal Panel said: "In order to assist the Appellant as a self-represented litigant in the articulation of his grounds of appeal, the Appeal Panel has considered whether it cannot discern any questions of law as grounds of appeal from the Notice of Appeal, the Appellant's submissions and the first instance decision." 1. We have had regard to the matters relied upon by the parties, including the written submissions and evidence lodged by the Appellant on 15 June 2022 and by the Respondents that was lodged on 29 June 2022. We have also considered the parties' oral submissions at the hearing of the appeal and the findings made by the Tribunal. We are satisfied that the appeal does not raise a question of law and that leave to appeal is required. 2. Having regard to the above principles, we are not satisfied that the Appellant may have suffered a substantial miscarriage of justice within the meaning of cl 12(1) of Sch 4, or that even if it may have, by applying the reasons of the Appeal Panel in Collins at [84(2)] referred to above, this appeal is not the type of matter that we should exercise our discretion in favour of granting leave. Consideration 1. As stated above, the sole ground of appeal is the Appellant's contention that the Tribunal erred by finding that the Appellant had not established to the satisfaction of the Tribunal "that the damages claimed against the respondents were consequential losses flowing from breaches by the respondents." The "breaches" by the Respondents to which the Tribunal referred was the failure on the part of the Respondents to issue an AFSS for 2019 and 2020 that were compliant with the Fire Safety Schedule listed in the CC. 2. For the reasons that follow, we agree with the Tribunal's finding. 3. The scope of works described in the Contract and undertaken by CFS at the Premises could not have dealt with all the items requiring certification listed in the Fire Safety Schedule in the CC. 4. For example, the Contract expressly excluded from the scope of work, the fire dampers which were "to be complete [sic] by others (unless register can be provided. Additional costs may apply)". The Fire Safety Schedule in the CC required the fire dampers (item 5) to be certified by an AFSS complying with Australian Standard (AS)1668.1-1998 and Building Code of Australia (BCA) Cl E2.2. Other items listed in the Fire Safety Schedule in the CC but not dealt with in the AFSSs issued by CFS during 2019 and 2020, included fire hydrant systems, fire seals, mechanical air handling systems and paths of travel, stairways, passageways or ramps. 5. It is not in dispute that the AFSSs did not certify all 12 fire safety items listed in that Fire Safety Schedule for the Premises. By a comparison of the 12 items listed in the Fire Safety Schedule, the AFSSs only certified 6 items, namely items 2, 3, 4, 6, 7 and 12. Also, despite the mandatory requirement to do so, the AFSSs did not attach a current (or any) Fire Safety Schedule. The evidence established that the Appellant had confirmed with the Council that the Fire Safety Schedule in the CC remained "current" and had not been amended. 6. Council issued a Notice of Intention to Give an Order dated 19 October 2020 (Notice) to issue a compliant AFSS. The Notice stated that the AFSS for 2020 dated 15 October 2020 issued by CFS "did not deal with essential fire safety measures listed on the attached fire safety schedule as required by Division 5 of Part 9 of the Environmental Planning and Safety Regulation 2000 (NSW)". The Fire Safety Schedule attached to the Notice was the same schedule as the Fire Safety Schedule in the CC. 7. The Appellant then engaged another contractor, FCF Fire and Electrical South-East Sydney (FCF) to undertake certain fire control services at the Premises and to prepare the AFSS for 2021. The FCF AFSS for 2021 was issued on 8 November 2021. We do not have a copy of the terms on which the Appellant engaged FCF but it is apparent from the invoices in the evidence before us and which we discuss below, that in addition to issuing the AFSS for 2021, FCF undertook rectification and other works that the Appellant claimed were necessary by reason of the Respondents' "breaches". 8. For the purpose of this appeal, we do not need to determine the question of who was responsible for the non-compliant AFSSs issued by CFS. There was no conclusive finding made by the Tribunal about liability and neither party has sought to squarely raise that issue on appeal. The appeal is limited to the Tribunal's finding that the Appellant failed to prove that it suffered loss by reason of the non-compliant AFSSs. 9. In our view, it was open to the Tribunal to find the Appellant failed to establish any loss suffered by reason of an act or omission by the Respondents with respect to their contractual obligations with the Appellant for the issuing of the AFSSs in 2019 and 2020. Appellant's Evidence of Loss and Damage 1. The Appellant claimed the sum of $8,960.44 based on invoices provided at Tab 7 of its evidence filed on 15 June 2022. Tab 7 also includes a schedule of payments that is consistent with the invoice numbers and dates that the invoices were issued. It also contains a record of the amount and when the invoices were paid. 2. The Appellant confirmed that this was the evidence it had relied upon before the Tribunal. 3. During the hearing of the appeal, the Appellant made submissions with respect to each of the invoices in Tab 7 that were provided in support of its total claim for $8,960.44, namely: 1. A document described as "Customer Quotation No 29972" in the sum of $847.00 issued on 29 July 2021 and which appears to have been accepted by the Appellant's Strata Manager on 5 August 2021. The schedule of payments in Tab 7 records that an invoice #121944 relating to this quotation was issued on 24 August 2021 and on 7 September 2021 the Appellant's Strata Managers paid an amount of $847.00. That invoice is not in evidence. For convenience, we have referred to this as the "FCF Quote" 2. Invoice 125088 dated 7 October 2021: $2,389.04 (Invoice #1) 3. Invoice 126136 dated 25 October 2021: $1,778.70 (Invoice #2) 4. Invoice 126137 dated 25 October 2021: $972.40 (Invoice #3) 5. Invoice 127172 dated 8 November 2021: $2,674.10 (Invoice #4) 6. Invoice 127173 dated 8 November 2021: $299.20 (Invoice #5) 1. An overriding difficulty with the case advanced by the Appellant and the damages claimed, is that the claim brought against the Respondents is concerned with the non-compliant AFSSs. However, as we discuss below, the damages claimed are based on invoices relating to rectification works that were performed by another contractor. 2. We accept that the Contract with CFS was not limited to the provision of the AFSSs and it included maintenance tasks relating to the "fire measures" listed in the scope of work and which correspond to the items to be certified by CFS in the AFSSs for 2019 and 2020. As we have stated above, there were however, numerous and significant exclusions in the scope of works. The items excluded from the scope of works were therefore not part of the maintenance to be undertaken by CFS and consistent with that position, those items were not certified by CFS in the AFSSs it issued. 3. There are presumably invoices that were issued to the Appellant relating to maintenance and other work performed by CFS; whether within its scope of works or pursuant to some informal arrangement or separate quotations. We have not seen any such documentation but the Appellant's written submissions refer to paying CFS $2,618 in 2019 and $6,589 for service and maintenance, when the evidence is that the cost of undertaking the AFSS was only $660 (inc. GST) per annum. 4. The Appellant submitted that the claim for $8,960.44 was "a direct consequential loss of Mr Killen having failed to provide maintenance services for all Essential fire safety measure … and having provided the Owners with deficient AFSS for two years …" (submissions [36] - our emphasis). It was also put slightly differently as a claim "for the costs of having to rectify items that deteriorated being not maintained for two years and obtaining compliant AFSS …" (submissions [60]). 5. This submission demonstrates the problem recognised by the Tribunal because the claim of $8,960.44 concerns work that the Appellant contends required rectification due to the failure on the part of CFS to properly maintain the essential fire services. There are several difficulties with that evidence in the context of the Appellant's claim relating to the non-compliant AFSSs. 6. Firstly, there is no evidence before us that refers to any maintenance or other work undertaken by CFS to compare that to the defect rectification work undertaken by FCF. We have no way of knowing what work was performed by CFS at the Premises or on what terms that work was undertaken, except for the issuing of the two AFSSs. There is no evidence of the work for which the Appellant said it paid CFS a total of about $9,207 across 2019 and 2020. 7. Secondly, there has been no attempt by the Appellant to identify the work within the Contract scope of works that CFS was to contractually obliged to maintain but that it did not so and which then directly caused FCF to undertake rectification works the subject of the invoices it issued. As we discuss below, some of the work by FCF appears to be outside of the CFS Contract scope of work. Contrary to the submission by the Appellant which we have set out above, unless there was some separate or additional arrangement made with CFS, it was not required to maintain "all" essential fire safety services. 8. The case advanced by the Appellant is about a failure by CFS to issue a compliant AFSS for 2019 and 2020. It has not been presented as a breach of contract claim for damages for failing to maintain the fire services that were within the Contract scope of work (or undertaken pursuant to some other arrangement), even though the evidence relied upon appears to relate to that issue, at least in part. 9. For completeness, and to illustrate the matters referred to above, we now discuss the nature of the evidence contained in the invoices relied upon by the Appellant. FCF Quote 1. The FCF Quote issued on 29 July 2021 relates to the provision of an AFSS in 2021. The cost of $847.00 quoted for that work was more than the $660.00 charged by the Respondents for issuing an AFSS. 2. In our view, there is no basis for awarding the Appellant the sum of $847.00 for FCF to issue a compliant AFSS in 2021. The Appellant would always have been liable for the cost of issuing an AFSS in 2021. That AFSS has not been more costly because of acts or omissions of the Respondents in relation to the issuing of the AFSSs in 2019 and 2020. 3. Although the Council Notice was issued to the Appellant in October 2020 requiring a compliant AFSS, the Appellant appears to have engaged with Council to be able to delay submitting a compliant for more than 12 months. There is no evidence that any contractor was engaged to undertake maintenance of the fire services at the Premises during that interim period. 4. The AFSS by FCF was not issued until 8 November because as the Appellant submitted, FCF first sought to undertake the works the subject of Invoices #1 to # 5 to enable it to issue the AFSS. However, that preparatory work was not undertaken by FCF until October 2021. We now discuss those invoices issued by FCF. Invoice #1 - $2,389.04 1. Invoice #1 relates to a series of defect rectification works undertaken by FCF at the Premises. The Appellant accepted at the hearing that Invoice #1 related to rectification works. The invoice was issued "as per approved quote" but that quote is not in evidence to assist us in better understanding the reason for this work being undertaken. The only quote in evidence is the FCF Quote we have discussed above that concerned the provision of the AFSS and no other fire safety services. 2. Invoice #1 may suggest that CFS did not undertake some necessary maintenance work (about which we express no opinion). For example, the "defect rectification" work related to portable extinguishers, fire detection and alarms, fire doors, passive fire and smoke containment and a re-inspection of a unit not previously accessed. Those items are within the Contract scope with CFS but there is no claim made by the Appellant that the AFSS issued by CFS in 2020 falsely certified that those services were maintained, current and serviced. The claim based on the Notice received from Council was that the AFSS was non-compliant because it did not address all measures required by the Fire Safety Schedule in the CC. 3. Invoice #1 does not enable us to link the rectification work or the costs for that work undertaken by FCF in 2021 to the Contract with CFS and any maintenance or other work CFS undertook in 2020. The AFSS issued by CFS was dated 15 October 2020. The first item of work invoiced by FCF by Invoice #1 is dated 7 October 2021. As we have said, the AFSS was not issued by FCF until 8 November 2021. 4. The difficulty we have on this appeal and which seems to have also troubled the Tribunal, is that it is possible that these items would have required rectification irrespective of the Respondents issuing the AFSSs. We have no evidence before us to suggest that the rectification was required in 2020 as a part of usual maintenance or required in 2021 due to a failure by CFS to maintain those items. 5. The only evidence we have is that FCF did that work and was paid for it. Invoice #2 - $1,778.70 1. The Appellant accepted at the hearing that Invoice #2 did not contain any particulars as to how this invoice related to any alleged failure by CFS to issue a compliant AFSS. 2. Invoice #2 is devoid of any particulars of the work performed by FCF beyond a general description that it pertained to the "Passive Fire & Smoke Containment System". 3. Invoice #1 also identified work with respect to the Passive Fire & Smoke Containment System. As with Invoice #1, the work the subject of this invoice is 12 months after the AFSS was issued by CFS. There is no evidence of the further work to which Invoice # 2 relates or why it was necessary by a failure by the Respondents to maintain fire services or by the issuing of non-compliant AFSSs. Invoice #3 - $972.40 1. Invoice # 3 refers to "attend site and rectify defects …" 2. Invoice #3 only concerns the car park exhaust system and the replacement of a burned-out fan motor, the installation of a time clock and controls to operate that system. The claim advanced by the Appellant is that the work required under invoice #3 was because CFS's work was defective or incomplete because there was no timer on the fan motor and it operated continuously and burned out. 3. The Contract with CFS did not require CFS to undertake those works. The scope of works expressly excluded "mechanical air handling" which was "to be completed by others". This would appear to be a cost for which the Appellant would have been liable for, even if it had contracted "others" to maintain and do that work. Invoice #4 - $2,674.10 1. Invoice #4 relates to the cost of installing a new motor for the burned-out carpark exhaust fan and an upgrade of electrical controls that we have referred to above in relation to Invoice #3. 2. Therefore, our same comments apply, namely that the rectification of such matters cannot be something for which the Respondents are liable under the terms of the Contract scope of works. Invoice #5 - $299.20 1. The description of work for Invoice #5 relates to the provision of a smoke alarm and battery backup for a unit within the Premises. This invoice also appears to relate to a maintenance issue and is one of the items referred to in Invoice #1. The Appellant has not established that this issue was outstanding in October 2020 when the AFSS was issued by CFS. The only evidence is that FCF required access to the unit in October 2021 to do its AFSS, and when it later obtained access, FCF replaced the smoke alarm. CFS cannot be held liable for that cost on the evidence before us. Conclusion 1. We are of the opinion that the invoices issued by FCF and relied upon by the Appellant do not support its claim for damages arising from the issuing of non-compliant AFSSs by the Respondents in 2019 and 202. 2. The FCF invoices mainly concern work relating to defect rectification. There is no evidence that the defects the subject of those invoices were in existence in October 2020 when the AFSS was issued by the Respondents or that those defects were referrable to a failure by CFS to maintain those services. FCF first attended to those works about 12 months after the last AFSS was issued by CFS. 3. In certain other respects, some of the work undertaken by FCF (for example the mechanical services in the car park) were outside the contract scope of work. In that case, as the Tribunal observed, the cost of undertaking that work would have been incurred by the Appellant irrespective of which contractor performed it. 4. There is no evidence before us that the costs the subject of the FCF Quote and Invoices #1 to #6 were directly referrable to or caused by the Respondents issuing a non-compliant or incomplete AFSS in either 2019 or 2020. Disposition of the Appeal 1. We concur with the Tribunal's finding that the Appellant failed to establish an entitlement for loss or damage occasioned by the Respondents' breach of contract to issue compliant AFSSs for the Premises for the years 2019 and 2020. 2. We find no merit in the appeal and for the reasons we have set out above, we refuse the Appellant leave to appeal. Orders 1. Leave to appeal refused. 2. Appeal 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: 10 October 2022