Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mayhew v Gittany [2023] NSWCATAP 156 Hearing dates: 29 May 2023 Date of orders: 13 June 2023 Decision date: 13 June 2023 Jurisdiction: Appeal Panel Before: M A Harrowell, Deputy President G Blake AM SC, Senior Member Decision: Leave to appeal is refused and the appeal is dismissed. Catchwords: CONTRACT LAW – obligations of supplier where advice concerning construction method and location of structure not accepted CONSUMER LAW - obligations to provide services with due care and skill and to ensure services are fit for purpose or of a quality, state or condition that might reasonably be expected to achieve a required result - consumer not relying on skill or judgement of the supplier Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 80 Australian Consumer Law (NSW), ss 60, 61 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: None cited Category: Principal judgment Parties: Stuart F Mayhew (Appellant) Marcel Gittany (First Respondent) Anne Gittany (Second Respondent) Representation: Appellant (Self Represented) Respondents (Self Represented) File Number(s): 2023/00092383 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 28 February 2023 Before: D Ash, General Member File Number(s): GEN 22/52771 REASONS FOR DECISION 1. This appeal concerns the construction of a causeway across a creek bed to be used by vehicles on a property owned by the appellant, Mr Mayhew. 2. The work was done by the respondents, Marcel Gittany and Anne Gittany trading as M&A Gittany Bobcat And Tipper Hire. It involved the supply of concrete and two 300 mm pipes as well as road base and other materials of which the causeway was constructed. 3. The proceedings were commenced in the Consumer and Commercial Division of this Tribunal and were heard on 21 February 2023. In his application, Mr Mayhew said the causeway failed before any cars had crossed it. The causeway had been damaged by water flowing in the creek. He says the causeway would have been satisfactory if the respondent had "added side walls and more concrete" and "less dirt". Consequently, he seeks an order that the respondents rebuild the causeway or refund him the monies paid. The amount paid was $6000. 4. By orders expressed to be made on 21 February 2023 the Tribunal dismissed the application as it was not satisfied Mr Mayhew had established his claim. Written reasons were published on 28 February 2023 (reasons). Tribunal's decision 1. There was a dispute between the parties as to the nature and extent of the work to be done by the respondents. The Tribunal recorded the evidence before it as follows: 3. In the first half of 2022 the parties agreed that the supplier would do some work on the consumer's property for at least $6,000. There is no written agreement. The work was performed in the middle of the year. The work is concrete laid across the river enclosing two pipes. 4. The consumer says that the work failed within two weeks of completion. The consumer lodged his application in November 2022. In or soon after November 2022 show a crack across the middle of the concrete, ie the crack is along the run of the stream in the centre, slightly closer to one pipe line than the other. The consumer lodged further photos in January 2023. These show that the structure has skewed. That is, there is the concrete with the crack and with the pipes but at least one and possible both sides no longer meet with the road. The structure sits with no utility. While there is no expert evidence, it appears that the concrete was laid not on rock but on sand or dirt, that the sand or dirt was washed away, and that the structure now sits as described. 5. In a statement provided with his first bundle of documents, the consumer states: "Carwell Creek is a seasonal creek. In the five years I have owned the property there was no water. "Water runs at about ankle deep now sometimes after heavy rain flash flooding. The site crossing was my choice after a lot of research. "I showed [the respondent] two crossings used by me to indirectly access my property saying you can copy either one or whatever you think even a causeway would be okay. Allowing flood water to pass over it. "I never supervised any work on the crossing. Not present when concrete laid (in Sydney). Never measured anything or ordered anything, ie mesh, concrete, timber, pipes. Had no hands on at all. Asked for receipts but never received." 6. By letter dated 27 September 2022 the consumer requested a receipt and stated that the crossing had collapsed, adding "It is dangerous to walk across. The construction design is why it failed. There is no support under 2/3 of the concrete. No side walls constructed." 7. By letter dated 10 October 2022 the supplier stated "Upon arrival at your property, you informed me that it was not access into your property but construction of a creek crossing within your property boundary. When I was shown the exact location of where you wanted to install a crossing, I informed you that you needed a minimum of 2 x 800mm culverts to handle the water flow plus the location where you wanted to instal the crossing was not a good location for a creek crossing due to the nature of the creek banks and creek bottom. The crossing would be better if the location was moved upstream where the creek bottom and banks were more rocky... At your insistence the 2x300mm PVC pipes were installed at the location nominated by yourself. [We the supplier] are not civil contractors and do not pretend to be anything other than plant hire contractors. There were no plans for the works provided by yourself... Location was selected by yourself even though I pointed out to you the other location upstream was a better location. The installation location was at your insistence." 8. Neither party relied on any expert report. At hearing each party had a firm recollection of events and each party's recollection differed markedly. 1. The Tribunal made the following findings: 9. While the issue of the side wall and the allegation about a want of a receipt were part of the written material before the Tribunal, the underlying issue is not the work that was not done or the receipt that was not provided but the allegation that there was poor workmanship. An email from Fair Trading to the supplier upon the consumer's complaint to it is succinct: "[The consumer] deems the workmanship to be poor, with no support to two thirds of the concrete, [it] relied heavily on dirt and was of poor design." 10. The Tribunal is satisfied that the supplier was retained to lay concrete enclosing two pipes and did so. There is no evidence that the concrete itself was other than concrete. The issue is that the concrete was laid on dirt - or, the Tribunal interpolates by reference to the photos, dirt or sand but not rock - and the dirt washed away and the concrete left without support either from firm banks or from a firm bed cracked and then skewed. 11. The Tribunal is not satisfied that the supplier failed to comply with any consumer guarantee as to the supply of the concrete. In particular, there is no evidence either that the goods comprising the concrete or the pipes were defective or that to the extent there was a service in pouring or laying the concrete, that it was done without due care and skill. 12. The Tribunal is not satisfied that the consumer has shown that there was any obligation by way of representation or by express agreement or by operation of the Australian Consumer Law that the supplier was providing any advice or other service as to the appropriateness of laying the goods where they were laid. Put another way and while there is no expert report, it is reasonable to infer from all the material that the concrete was laid on dirt and the dirt was washed away, and while the supplier laid the concrete the supplier was under no relevant obligation as to the laying of the concrete on dirt. Indeed, although it does not need to be positively established, the tenor of the evidence including the consumer's own words in his application tends to suggest that the consumer chose the place to lay the concrete and retained the supplier to retain the concrete at that chosen place. The fact that the dirt or sand at the place has gone and the concrete appears not to enjoy the support it did is not a result for which the supplier is liable. Notice of Appeal and hearing of the appeal 1. Mr Mayhew filed a Notice of Appeal on 20 March 2023. The appeal was filed in time. 2. Following directions from the Appeal Panel at a call over on 5 April 2023, the parties filed documents in support of their respective positions. Neither party provided a transcript of the proceedings at first instance. 3. The hearing of the appeal occurred on 29 May 2023. Mr Mayhew appeared in person. Mr Gittany appeared by telephone on behalf of both respondents. 4. By reference to the reasons of the Tribunal, in his Notice of Appeal Mr Mayhew identified his grounds of appeal which we summarise as follows: 1. reasons at [3]: Mr Mayhew says the Tribunal's description of the work as "concrete laid across the river enclosing two pipes" is not an accurate account. The respondents provided references that he had done this type of work and had the choice to decline the request to carry out work "for whatever reasons". However, the respondents "elected to build"; 2. reasons at [9]: Contrary to the Tribunal's conclusion, the "construction was not capable of performing the tasks it was meant for, that is allowing a motor vehicle to cross back and forward safely"; 3. reasons at [12]: Mr Mayhew says the photographic material shows that the causeway is not capable of performing its task of allowing a motor vehicle cross back and forth. The photographic material shows that the concrete was not thick enough. Further, "rock support is needed to stop wash away". Mr Mayhew said that there are other crossings in the area which are capable of having two metres of water pass over them without washing away. "The site is not in question nor the pipes. It is the fact that the construction cannot perform the task of allowing a motor vehicle to cross back and forwards"; 4. reasons at [13]: Mr Mayhew says he is out of pocket by $6000 "plus $400 minimum is the amount to hire an excavator to remove the concrete which is causing damage every day it is left". Mr Mayhew says he has received no benefit from the work performed. In short the respondents have "delivered a lump of concrete not capable of doing [the] task it was intended for and received a huge profit for poor judgement not enough concrete". 1. Mr Mayhew did not seek leave to appeal in his Notice of Appeal. However, following discussions with the parties, we determined that leave to amend the Notice of Appeal should be granted. We did so because the terms of the Notice of Appeal clearly challenge various factual findings which the Tribunal had made. The parties had a chance to provide evidence in support of their respective positions on these issues (including the transcript of the proceedings at first instance if that was to be relied upon) and there was no prejudice identified by the respondents which would have made an amendment at the late stage of the hearing unfair or inappropriate. 2. Despite granting leave, Mr Mayhew maintained throughout the hearing of the appeal that his Notice of Appeal raised a question of law. The error identified was that the Tribunal incorrectly determined the contract was for the supply of goods, not the supply of services. We will return to this matter below. 3. As to the question of law, Mr Mayhew relied upon the Australian Consumer Law (NSW) (ACL). In discussions with the Appeal Panel, s 60 (Guarantee as to due care and skill) and 61 (Guarantee as to fitness for a particular purpose etc) were identified as the sections upon which he relied. 4. During the hearing of the appeal, we identified that the parties in the proceedings at first instance and on appeal had not been correctly named. By consent, we amended the parties to those recorded in these reasons. Consideration 1. There is a right of appeal on a question of law, otherwise leave to appeal is required: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. Because the proceedings are an appeal from the Consumer and Commercial Division, leave to appeal may only be granted if an appellant establishes they may have suffered a substantial miscarriage of justice because the decision under appeal was not fair and equitable, against the weight of evidence or there was significant new evidence that has arisen, being evidence not reasonably available at the time the proceedings under appeal were being dealt with: Sch 4 cl 12(1) NCAT Act. Collins v Urban [2014] NSWCATAP 17 sets out the principles relevant to the grant of leave. Is there a question of law raised in this appeal? 1. In our view, whether a contract as found is for the supply of goods, services or both within the meaning of the ACL is a question of law. 2. However, contrary to the submission of Mr Mayhew, the Tribunal did not find there was a contract for supply of goods only. Rather, the Tribunal found: 1. there was a supply of pipes and concrete (being goods): reasons at [11]; and 2. there was a supply of services being to lay concrete: reasons at [10] and [11]. 1. In doing so the Tribunal was not satisfied the work "was done without due care and skill". This appears to be a reference to s 60 of the ACL although the reasons lack precision as to whether this was a reference to a term of the contract or that section of the ACL. 2. Be that as it may, it is clear from reading the reasons as a whole that the Tribunal reached the following factual conclusions: 1. there was a contract for the supply of concrete pipes and the construction of a causeway in the creek bed. That contract required the installation of two pipes in the creek bed which, inter alia, was to be encased with concrete to form a causeway: reasons at [10]; 2. Mr Mayhew contended that the workmanship was poor, the structure was not supported for two thirds of the concrete and was of poor design: reasons at [9]. In this regard the causeway was not laid on rock, but rather dirt or sand: reasons at [10]; 3. the Tribunal was not satisfied that the respondents had failed to comply with any consumer guarantee in relation to the supply of the concrete and, as stated above, did not accept the work was done without due care and skill: reasons at [11]; 4. the respondents were "under no relevant obligation as to the laying of the concrete on dirt", the Tribunal appearing to accept that Mr Mayhew chose the place to lay the concrete and retained the respondents to lay the concrete in that location. In doing so, the Tribunal was not satisfied the respondents were "providing any advice or other services as to the appropriateness of laying the goods where they were laid": reasons at [12]. 1. It is clear from these reasons that the Tribunal: 1. accepted that Mr Mayhew chose the site; 2. did not accept Mr Mayhew was relying on any skill or advice from the respondents including as to the location of the causeway, the requirement for culverts or the sizing of pipes to pass under the concrete, matters about which Mr Gittany gave evidence in conflict that of Mr Mayhew. 1. While Mr Mayhew disagrees with these conclusions, these challenges do not raise a question of law nor do they show any error in connection with the question of law we identified. 2. Accordingly, leave to appeal is required. Should leave be granted? 1. The issue of whether leave should be granted requires a consideration of what factual matters are raised by the grounds of appeal. 2. Leaving aside the conflict in evidence, Mr Mayhew's challenge was based on the fact there was a want of due skill and care or, alternatively, the services provided are not fit for a particular purpose. Principally, he relied on ss 60 and 61 of the ACL, we having identified those sections during the course of oral argument. 3. Sections 60 and 61 of the ACL provide: 60 Guarantee as to due care and skill If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill. 61 Guarantees as to fitness for a particular purpose etc. (1) If: (a) a person (the supplier ) supplies, in trade or commerce, services to a consumer; and (b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer; there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose. (2) If: (a) a person (the supplier ) supplies, in trade or commerce, services to a consumer; and (b) the consumer makes known, expressly or by implication, to: (i) the supplier; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made; the result that the consumer wishes the services to achieve; there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result. (3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier. 1. In identifying these sections of the ACL, we noted to Mr Mayhew the provisions of s 61(3) concerning the inapplicability of s 61 where a consumer does not rely on the supplier. 2. When explaining why the Tribunal was in error, Mr Mayhew made the following submissions: 1. as a service provider, the respondents had a mandatory obligation that the work done would be fit for purpose. Any suggestion that there was "no guarantee" was "illegal"; 2. what Mr Gittany did was wrong. He did not supply all of the ingredients necessary to do the work properly and substituted dirt when he ran out of rock; 3. there was no need for expert evidence, the photographs showing the crossing had failed and had moved. In this regard reference was made to two other crossing that had not moved (although we were not referred to any evidence to prove this last fact); 4. there was no solid foundation for the causeway, water clearly running under the concrete; 5. the contract was to build a crossing suitable for motor vehicles to be driven over for years to come. This had not been achieved; 6. in short, Mr Mayhew said he wanted a concrete causeway in the desired location, and did not need pipes. 1. In response, Mr Gittany referred to the evidence before the Tribunal concerning his verbal quotation and his recommendations concerning pipe and mesh and location. The respondents also rely on the evidence of Mr Mayhew that he chose the site, a matter Mr Mayhew accepted in his submissions in reply. 2. In reply, Mr Mayhew reiterated that any suggestion there was no guarantee was wrong and that he did rely on the supplier for everything. 3. In our view, a reading of the reasons as a whole indicates the Tribunal accepted the version of events of Mr Gittany concerning the formation of the contract, including as to the construction method and pipe sizes. As clear from the evidence of Mr Mayhew, the site was selected by him, the evidence revealing that Mr Gittany said the causeway should be built in a different location and using a different method. 4. In our view these findings show that the Tribunal accepted: 1. the concrete and material supplied was of suitable quality; 2. the concrete and material supplied was placed at a location required by Mr Mayhew; 3. the respondents had provided advice as to the appropriate location and construction method, which advice was not accepted by Mr Mayhew; and 4. the respondents carried out the work as directed by Mr Mayhew. 1. The effect of these findings is that Mr Mayhew did not rely on the skill and judgement of the respondent. Consequently, there was no obligation on the respondent is to ensure the causeway was fit for purpose or would achieve any required result, namely be suitable as a causeway across the creek in that location. 2. Further, to the extent services were supplied, they were rendered with due care and skill: reasons at [11]. 3. It is not shown that the Tribunal's evaluation of the evidence was incorrect or that the Tribunal's conclusions were unreasonable. Rather, work was performed at the direction of Mr Mayhew as he required, notwithstanding advice from the respondents that any causeway should be constructed in a different location using a different design. 4. In the absence of any expert evidence to suggest a competent supplier and installer should have taken different action to that of the respondents, the mere fact something Mr Mayhew required to be constructed failed is not sufficient to establish liability of the respondents. 5. Accordingly, no error is established, leave to appeal is refused and 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: 13 June 2023