Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EWF Australia Pty Ltd v Vollebregt [2023] NSWCATAP 86 Hearing dates: 20 March 2023 Date of orders: 27 March 2023 Decision date: 27 March 2023 Jurisdiction: Appeal Panel Before: G Ellis SC, Senior Member R C Titterton OAM, Senior Member Decision: 1. The name of the appellant is amended to EWF Australia Pty Ltd. 2. Leave to appeal is refused. 3. The appeal is dismissed. Catchwords: APPEAL – No error on a question of law – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: EWF Australia Pty Ltd (Appellant) Marie Vollebregt (Respondent) Representation: A Kamandi (Appellant) Respondent (Self-represented) File Number(s): 2023/00008106 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 16 December 2022 Before: J Camden, Member File Number(s): GEN 22/40467 reasons for decision Outline 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 in relation to an application lodged by the respondent. The appellant was ordered to (1) pay $10,925 to the respondent, and (2) remove and dispose of fixtures the appellant installed at the respondent's premises. 2. Having considered the documents lodged and the submissions made, we do not consider that any ground of appeal, or any basis for leave to appeal, has been established by the appellant. Background 1. In her 7 September 2022 application, the respondent sought orders in relation to the appellant's installation of Alpine White VeriShades internally and a Zipsceen awning externally at the respondent's home in Woolooware. 2. After a hearing, on 16 December 2022, the following orders were made: 1. EWF Australia Pty Ltd … is to pay the applicant Marie Vollebregt … $10,925.00 on or before 16-Jan-2023. 2. Not later than 31 January 2023, the respondent EWF Australia Pty Ltd … is to attend the applicant's premises at … at a mutually convenient date and time, and using all due skill and care is to remove in a proper and workmanlike manner, and lawfully dispose of, all Alpine White VeriShades and fixtures and the awning Zipscreen – ACMEDA in Blackstone and fixtures supplied to the applicant and fitted by the respondent. 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: NCAT Act, s 80(2). 2. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out at [13] listed of questions of law as: 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. 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 (ie permission) 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. 2. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), 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 Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). In Collins, at [84], the Appeal Panel stated 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. 1. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), at [13], the Appeal Panel said: It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice". Documents 1. The appellant lodged the Notice of Appeal on 9 January 2023 and filed further documents on 13 January 2023. A second Notice of Appeal was received on 20 February 2023. 2. The respondent lodged a Reply to Appeal on 23 January 2023 and filed documents on 28 February 2023. 3. An application for a stay was also lodged on 9 January 2023 but that application was withdrawn on 25 January 2023. Notice of Appeal 1. Orders were made and reasons published on 16 December 2022. Since cl 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) requires that this appeal be commenced within 28 days, the Notice of Appeal was due to be lodged on or before 13 January 2023. As the Notice of Appeal was received on 9 January 2023, the appeal is within time. Grounds of Appeal 1. In the original Notice of Appeal, under the heading for Grounds of Appeal, the appellant contended that the products had been supplied and installed, accepted by the customer, and that a $1,500 refund had been made as a goodwill gesture. No specific ground of appeal was indicated. Under the heading for the orders, it was suggested that the Appeal Panel visit the site to: go through the areas that the customer claims to have concerns and prove that we have rectified as per industry standard. 1. Despite no leave (ie permission) to amend the Notice of Appeal having been sought or obtained by the appellant, that second Notice of Appeal sought to add a request for leave to appeal on the basis that (1) the decision was not fair and equitable, (2) the decision was against the weight of the evidence, and (3) there was significant new evidence now available that was not reasonably available at the hearing. Hearing 1. The usual sequence of appellant then respondent then appellant in reply was followed for oral submissions so each party would have an opportunity to speak both in support of their case and in response to the case of the other party. 2. During the hearing of the appeal, the Tribunal did not prevent the appellant from referring to the second Notice of Appeal and the respondent replied to it. 3. At the conclusion of the hearing, it was indicated that the appellant's request for a view (ie visit to the site) was rejected. The submissions made in support of that request, and the Tribunal's reasons for rejecting it, are set out below. Appellant's submissions 1. The written submission received on 13 January 2023 was in the form of a spreadsheet which set out, on the left side of the page, a portion of the reasons and, on the right side of the page, the appellant's response. It is sufficient to record that these submissions did not indicate any error of law: they only set out the reasons why the appellant suggested a different conclusion should have been reached. Accompanying those written submissions were statements provided by the appellant's installer, operations manager, and sales consultant. 2. In his oral submissions, Mr Kamandi said that no evidence was emailed to the appellant and an unsubstantiated claim was made that its address was incorrect with the contended result that the appellant first saw the respondent's evidence on day of hearing. He requested another hearing on the basis the appellant has evidence upon which it wished to rely. 3. It is necessary to observe that the appellant attended the hearing with the evidence upon which it wished to rely, as was noted in the presiding member's reasons at [9]. When that was drawn to Mr Kamandi's attention, his response was to suggest that an adjournment should have been granted but that was not raised as a ground of appeal in either the first or the second Notice of Appeal. 4. It was also indicated that the company officer who represented the appellant at the hearing was not present for the hearing of the appeal due to a death in her family but that did not prevent Mr Kamandi from presenting the appellant's case at the hearing of the appeal, nor would there have been any impediment for the appellant if it had complied with the directions made on 25 January 2023 for the appellant to provide to the Tribunal a copy of the evidence provided by the appellant at the first instance hearing. Respondent's submissions 1. The written submissions in response, received on 28 February 2023, replied to the second Notice of Appeal. Points made in those submissions may be summarised as follows: (1) a copy of the documents which became the respondent's evidence at the hearing was sent to the registered office of the appellant, (2) the appellant was provided with an opportunity to rectify the defects, and (3) statements provided by the appellant do not meet the criteria of being not reasonably available at the hearing. It was also noted that the appellant failed to attend the initial hearing on 7 October 2022 and did not submit documents until the day of hearing, which was 16 December 2022. 2. In her oral submissions, the respondent referred to six matters. First, that the appellant had received the respondent's documents because they were sent to the registered office of the appellant and that the presiding member noted that the notice for the initial hearing on 7 October 2022 and for the final hearing on 16 December 2022 were both sent to the same email address, had not "bounced back", and that, while the appellant had not attended the initial hearing, it had attended the final hearing. 3. Secondly, it was observed that the appellant had neither sought nor obtained a recording of the hearing with the result that there was no transcript of that hearing available at the hearing of the appeal. 4. Thirdly, that the evidence upon which the respondent relied at the hearing was the same as the evidence that was provided with the application that was sent to the registered office of the appellant. It was noted that if the appellant had not received any documents at its registered office and had not received any notice by email then it would not have been able to attend the hearing. 5. Fourthly, it was noted that the appellant attended the hearing with was described by the presiding member as "a package of 17 documents". 6. Fifthly, it was noted by the respondent that the first Notice of Appeal did not contain any grounds of appeal and it was only after the respondent's Reply was filed and served that the applicant lodged a second Notice of Appeal which sought to add reasons in support of the appeal. 7. Sixthly, since the notice for both the 7 October 2022 initial hearing and the 16 December 2022 final hearing were sent to the same email address, and the appellant was able to attend on the latter occasion, it was submitted that any claim by the appellant that it did not receive notice of the initial hearing was false. Submissions in reply 1. In reply, it was suggested that the earlier email was not received and that when an email was received the appellant acted and brought documents to the hearing. It was suggested that the appellant did not have an opportunity to reply to the evidence of the respondent as it did not receive any paperwork until the day of the hearing on 16 December 2022. Request for a view 1. Mr Kamandi also made submissions in support of the appellant's request for a view (ie for the Appeal Panel to visit the respondent's house to inspect the work). It was indicated that the appellant wanted to visit the site with its own building inspector in order to show that the measurements provided by the respondent at first instance were incorrect in that her evidence from JMH Building, who were said to not be window installers – was wrong as to the relevant heights. 2. As to whether a view should be conducted, the respondent said the reason given related to something that was considered at the original hearing. There was nothing which the presiding member did that amounted to an error of judgement, that the appellant should have obtained an audio recording of the first instance hearing, and that what was now being said in relation to measurements was no more than a wild allegation. 3. Secondly, it was said that the appellant should not be permitted to rely on new evidence unless it was not reasonably available at the time of the first instance hearing. Further, that if the appellant wanted to get someone to go to her premises to take measurements, then there was ample time for that to be done during the time from 7 September 2022, when the application was lodged, to 16 December 2022, when the application was heard. 4. Thirdly, it was submitted that the public interest was relevant and that a request now made by the appellant should not be permitted when that request could and should have been made at the initial hearing, on 7 October 2022. Consideration 1. Since the orders and reasons published on 16 December 2022, and an ASIC search, suggest the appellant was not correctly named in either Notice of Appeal, an order should be made to correct that error. 2. As was indicated at the outset of the hearing, an appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. Likewise, the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states: "an appeal is not an opportunity to have a second go at a hearing". 3. Further, it is not sufficient for the appellant to disagree with the outcome and to contend that there should have been a different outcome: the appellant must demonstrate either that an error was made on a question of law or that there is a basis upon which leave to appeal should be granted. 4. The appellant's request for a view was rejected because it would not go to whether there a valid basis for allowing the appeal, only to why the appellant disagreed with the decision at first instance. The fact that the appellant requested a view suggests that it has not yet complied with the order made on 16 December 2022, despite its application for a stay having been refused. 5. To look now at what was installed would not assist the Tribunal on the question of whether there was an error on a question of law and would only be relevant if the Tribunal were re-hearing the application which is not the case. 6. The presiding member gave reasons for refusing to adjourn the hearing, at [10]-[15]. No error was established by the appellant, and we are unable to see any error in those reasons. There was no basis for concluding that the appellant had changed its registered office and the better view is that the documents arrived at the appellant's registered office but were not considered until close to the date of the final hearing. Further, there is no explanation as to how the appellant could receive, by email the second notice of hearing but not the first. 7. Accordingly, even if the appellant is allowed to challenge the decision to refuse the application for an adjournment, despite it not being raised in either the first or the second Notice of Appeal, that challenge must be rejected. 8. There is nothing in the first Notice of Appeal or any other document submitted by the appellant in support of its appeal that indicates any error of law and, applying what was said in Cominos, our reading of the available documents, notably the reasons published on 16 December 2022, does not reveal any error of law. 9. It is to be noted that the appellant was content to ambush the respondent on the day of the hearing with the documents upon which it wished to rely but complained that it had not received the respondent's documents prior to the day of the hearing. We are not persuaded that the first time the appellant saw the respondent's documents was at the hearing on 16 December 2022. Nor are we satisfied that the appellant did receive by email a notice of the final hearing on 16 December 2022 but did not receive by email a notice of the initial hearing when both emails were sent to the same address and, as the presiding member noted, there was nothing on the Tribunal's file to suggest that either email had not been received. 10. Overlooking the failure of the appellant to seek leave to lodge a Second Notice of Appeal, having read the documents provided this appeal, there is no basis for concluding the decision now challenged was not fair and equitable. 11. To establish that the decision was against the weight of the evidence it would be necessary for a copy of the appellant's evidence to have been provided, in accordance with the direction made on 25 January 2023. Being confined to a consideration of the respondent's evidence, it cannot be said the decision was against the weight of the evidence. 12. No reason was provided as to why the three statements now provided by the appellant could not have been obtained prior to the hearing. As a result, they do not constitute evidence that was not reasonably available at the hearing. 13. Even if it could be said that one of the three reasons for granting leave to appeal was established, none of the five criteria set out in Collins appear to be satisfied in this instance. 14. As a result, the appellant has not demonstrated either an error on a question of law that could provide a basis for allowing an appeal or any reason why leave to appeal should be granted. Orders 1. For the reasons set out above, the orders that will be made are as follows: 1. The name of the appellant is amended to EWF Australia Pty Ltd. 2. Leave to appeal is refused. 3. The appeal is 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 March 2023