Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Baranowski v Alan Walker t/as Stroud Plumbing and Gas [2024] NSWCATAP 50 Hearing dates: 6 July 2023 Date of orders: 3 April 2024 Decision date: 03 April 2024 Jurisdiction: Appeal Panel Before: K Ransome, Principal Member A Boxall, Senior Member Decision: (1) To the extent that the appeal raises questions of law, the appeal is dismissed. (2) Leave to appeal granted in part. (3) Appeal allowed in part. (4) Order that the respondent Alan Walker is to pay the applicant Bohdan Baranowski the sum of $2,200 within 28 days of the date of this order. Catchwords: APPEAL – whether denial of procedural fairness – whether decision against the weight of evidence – appeal allowed in part Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: Nil Category: Principal judgment Parties: Bohdan Baranowski (Appellant) Alan Walker t/as Stroud Plumbing and Gas (Respondent) Representation: Appellant (self-represented) Meridian Lawyers (Respondent) File Number(s): 2023/00139204 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 30 March 2023 Before: S Hausfield, Tribunal Member File Number(s): HB 22/46798 REASONS FOR DECISION 1. Between September and November 2021 Alan Walker, a plumber trading as Stroud Plumbing and Gas, carried out some work for Bohdan Baranowski at Mr Baranowski's home. The work involved three separate items: repair to a leaking pipe in the ceiling, relocation of a solar hot water system from inside a bathroom to an outside wall, roughing in new hot and cold water pipes to a new shower and hand basin in the bathroom, installing new shower waste pipe work connecting the new shower to the existing floor waste and repairs to another (second) solar hot water system. In October 2021 Mr Baranowski lodged an application with the Tribunal claiming that the works performed by Mr Walker were defective and that he be paid the cost of repairs. The Tribunal dismissed the claim. The Tribunal's decision 1. There was no dispute before the Tribunal or before us that Mr Baranowski's claim is a building claim under the Home Building Act 1989 (NSW). 2. The matter came before the Tribunal on 1 December 2022 and was adjourned to allow Mr Baranowski to amend his claim and for the parties to file documents. The directions made by the Tribunal Member included a note that "Expert evidence will be required about works of a technical nature". The matter came back before the Tribunal on 30 March 2023 and on that day was heard and determined by a different Tribunal Member. The Member has provided written reasons for his decision. At the end of his written reasons the Member noted that additional oral reasons were provided at the hearing. We note that the Member had taken the rather unusual step of providing his decision on certain items claimed along with oral reasons at various points in the hearing. In our consideration of the appeal we have taken those oral reasons into account. Leaking ceiling pipe 1. Mr Baranowski claimed Mr Walker's repair of a leaking solar hot water pipe in the ceiling was defective as a further leak developed some time later. The Member dismissed that part of the claim on the basis that Mr Baranowski had not provided "any expert or other cogent evidence that the leak repair was done without due care and skill" (in accordance with the statutory warranties under s 18B of the Home Building Act). Repairs to second solar hot water system 1. The repairs undertaken by Mr Walker to the second solar hot water system were to replace the circulating pump which had seized. Mr Baranowski claimed that the hot water system still did not work and that Mr Walker had damaged the control unit when installing the new pump by fitting the pump to the control unit with reverse polarity. Mr Baranowski had a report from an electrician to this effect. He claimed the cost of a new control unit. 2. In dismissing this part of the claim the Member noted that Mr Walker said he had photographed the wiring connections before installing the new pump and made sure he matched those connections. He also noted that Mr Baranowski had stated that the hot water system also had an electrical connection which worked and it was only the solar connection that wasn't working. The Member accepted Mr Walker's evidence that the control unit only controlled the solar part of the system. He stated that he had no expert or other evidence that the control unit was working before Mr Walker worked on the system and on that basis found that Mr Baranowski had not proven this part of his claim. Shower waste 1. The evidence before the Tribunal was that the floor of the bathroom was a concrete slab, that Mr Walker cut a new hole for the shower waste and installed pipes joining the shower waste to an existing floor waste. It subsequently transpired that this floor waste was not connected to the main drain. The shower waste was ultimately connected to a vanity basin waste which was connected to the main waste pipes but only after extensive investigations by another plumber and the removal of the vanity and tiling. The vanity and tiling had been installed after Mr Walker had completed his work. 2. Mr Walker gave evidence that he drained the water out of the solar hot water tank that was in the bathroom down the main floor waste before moving the tank outside. He estimated the tank held about 400 litres. Mr Baranowski said that Mr Walker drained the water from the tank using a hose put through a hole in the wall to the outside of the building and the tank held about 200 litres. The Member accepted the evidence of Mr Walker and stated that "the presence of several waste holes" would have led Mr Walker to drain the tank into one of them. The Member noted that the problems the owner found were about a year later. He then stated in his reasons: Since the home owners report concerning the remedy to the problem by Twin Rivers [the company that undertook investigations and remedial work] is uncertain whether the waste pipes were not connected to the shower waste or they were broken, I cannot be satisfied the pipes were broken or blocked when [Mr Walker] did his work. On that basis, I am not satisfied that [Mr Walker] failed to exercise due care and skill in his installation of the shower waste. [Mr Baranowski] has not proven this part of his claim. 1. Mr Baranowski appeals the Tribunal's decision. Scope and nature of internal appeals 1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides that an internal appeal from a decision of the kind in this appeal can be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. 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. 2. 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 the appellant may have suffered a substantial miscarriage of justice because (a) the decision under appeal was not fair and equitable, (b) the decision under appeal was against the weight of the evidence or (c) significant new evidence has arisen (being evidence not reasonably available at the hearing of the decision appealed from). 3. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel said, at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act 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 (a) or (b) not occurred or if the fresh evidence under (c) had been before the Tribunal. 4. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. 5. We note that Mr Baranowski lodged his appeal four days out of time. After hearing from the parties at the hearing we extended time to appeal. Grounds of appeal 1. Mr Baranowski states that he seeks leave to appeal. Not fair and equitable 1. Mr Baranowski states that the decision was not fair and equitable on two bases. The first is that the Tribunal Member did not allow him to fully present his case and refused to allow the Polish interpreter (who he had requested and the Tribunal had arranged) to interpret. The second is that the Member permitted Mr Walker to submit evidence late. Against the weight of the evidence 1. Mr Baranowski states that decision was against the weight of the evidence in respect of all three items claimed. In particular, he states that the Member disregarded the expert evidence he had provided to support his case. New evidence 1. Mr Baranowski also sought to rely upon new evidence at the hearing of the appeal. The evidence involved an invoice from a company which installed some items in the new bathroom in August 2022 which was said to show when the works were in fact completed and some photographs. 2. The Appeal Panel may permit an appellant to rely upon new evidence at the appeal if that evidence was not reasonably available at the time of the hearing. As explained to Mr Baranowski at the hearing, the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]. We did not permit Mr Baranowski to rely upon this evidence as we were not persuaded that the evidence which he sought to rely upon was not reasonably available at the time of the hearing. His own explanation for its absence concedes that it could have been obtained and put before the Tribunal but he did not think it was necessary. Decision not fair and equitable 1. Mr Baranowski has framed his appeal in respect of the conduct of the hearing and the reliance by the Tribunal on evidence filed late by Mr Walker as being a question of whether leave to appeal should be granted because the decision was not fair and equitable. 2. In Cominos v Di Rico [2016] NSWCATAP 5, at [13], the Appeal Panel noted that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12] the Appeal Panel noted that where an appellant is not legally represented, it is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent. In such circumstances and having regard to the guiding principle in s 36 of the NCAT Act, 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. 3. The Tribunal was obliged to afford both parties procedural fairness: NCAT Act s 38(2). In addition, the Tribunal was required to ensure that the parties understood the nature of the proceedings and to take such measures as are reasonably practicable to ensure each party had a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: NCAT Act s 38(5). If requested to do so, the Tribunal is also required to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings: NCAT Act s 38(5)(b). A failure to afford a party procedural fairness is an error on a question of law: Prendergast at [13]. In our view, the matters raised by Mr Baranowski in respect of the conduct of the hearing concern an alleged denial of procedural fairness and thus raise a question of law. 4. As noted above, at his request, a Polish interpreter was arranged for Mr Baranowski. The interpreter initially joined the hearing via a video link but was unable to hear or be heard. She subsequently joined the hearing by telephone. In his appeal Mr Baranowski asserts that the Member did not permit the interpreter to interpret. He states that he did not understand what the Member was saying and the Member did not understand him but at no point did the Member seek the assistance of the interpreter. Mr Baranowski states that his English language skills were not sufficient to explain his case to the Member. Mr Baranowski refers particularly to asking the Member questions at the end of the hearing as he did not understand but the Member not answering his questions and telling him he could appeal. 5. The transcript of the hearing shows that at the beginning of the hearing Mr Baranowski told the Member that he didn't need an interpreter and said that he had "asked for an interpreter to be sure". He went on to say that, if he didn't understand something, the interpreter could help him but stated that he is "quite good with English". We note that the interpreter was present on the telephone for the entire hearing. 6. At no time during the hearing when either he or Mr Walker were giving evidence did Mr Baranowski ask for assistance from the interpreter. The transcript also shows that the Member checked matters with Mr Baranowski numerous times during the hearing to ensure that he understood the point that Mr Baranowski was making. Unfortunately, the Member became impatient from time to time and interrupted Mr Baranowski but the transcript shows that he made considerable effort to ensure he understood Mr Baranowski's claim and that Mr Baranowski was advised of any issues or problems with his evidence. 7. It was Mr Baranowski's decision to proceed without the interpreter and it was open to him to seek the interpreter's assistance at any time during the hearing but he did not do so. We do not consider that he was denied use of the interpreter or that he was denied procedural fairness in this respect. We also do not consider that Mr Baranowski was denied an opportunity to present his case. He provided documentary evidence and addressed the Member on each of the items claimed. 8. Mr Baranowski complains that Mr Walker was permitted to rely upon evidence which was filed late. It does seem that Mr Walker's evidence was filed late with the Tribunal but we accept the information provided by Mr Walker's solicitor that the documents had in fact been emailed to Mr Baranowski on the due date. In any event, Mr Baranowski has not clearly articulated how he was disadvantaged by any late filing of material with the Tribunal. 9. Mr Baranowski also makes reference to the fact that at the Tribunal hearing Mr Walker was allowed to rely on two photographs which had not been supplied to him in advance. Mr Walker had attached the photographs to a statement he filed with the Tribunal in the proceedings, but Mr Baranowski stated they were not attached to the copy of the statement he received. While that was unfortunate, Mr Baranowski had an opportunity at the hearing to examine the two photographs in question and certainly made submissions about them. Bearing in mind the guiding principle set out in s 36 of the NCAT, that is, to facilitate the just, quick and cheap resolution of the real issues in the proceedings, we are not satisfied that he was denied an opportunity to put forward his views about the photographs and the transcript clearly shows that he did so. 10. Mr Baranowski states that at the end of the hearing the Member refused to answer his questions. The transcript shows that Mr Baranowski sought further explanation from the Member about his ruling after the Member gave his decision and brief oral reasons. The Member did try to give a further explanation but Mr Baranowski sought to re-argue aspects of his case. He was then advised by the Member of his right to appeal if he thought the decision was wrong. This interaction does not show that the Member unreasonably refused to fulfil his obligations in accordance with s 38 of the NCAT Act. The Member attempted to explain his decision to Mr Baranowski but, quite rightly, declined to enter into a debate about his reasons for making the decision he did. 11. We are not satisfied that Mr Baranowski was denied procedural fairness in the way the hearing was conducted by the Member. In our view he was given an ample opportunity to present his case and could have relied upon the interpreter at any time. The Member sought to explain to Baranowski what he was required to decide, the evidence needed to make that decision and the reasons why he made the decision he did. We are also satisfied that the matters raised by Mr Baranowski do not establish that the decision was not fair and equitable thus requiring leave to appeal. This ground of appeal is not made out. Against the weight of the evidence 1. At the outset, we note that 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]. Ceiling leak 1. Mr Baranowski's contention before the Tribunal and the Appeal Panel was that Mr Walker failed to properly repair the leaking pipe in the ceiling when he attended the property in about September 2021 and that this resulted in further leaking and damage to the ceiling at a later date. The Member's finding as set out in his written reasons was that Mr Baranowski had failed to provide expert or other cogent evidence that the leak repair was done without due care and skill. Mr Baranowski had given evidence that he called another plumber to repair the ceiling pipes as Mr Walker, due to ill health, could not return. He provided an invoice from Goodwins Plumbing Karuah dated 31 March 2022 in the amount of $365 for "repair 2 x hot water pipes in the roof". Mr Baranowski gave evidence that the new plumber had told him the leak was from the same place as the previous repair. It seems that another leak was from another pipe. Mr Walker gave evidence that he advised Mr Baranowski all copper pipe work in the ceiling would need to be repaired (a fact disputed by Mr Baranowski) but Mr Baranowski requested he simply repair the pipe which he did by cutting out a section of pipe and soldering in a new section. Mr Baranowski stated the leaks stopped after the repair by Goodwins Plumbing. 2. In the appeal Mr Baranowski seeks in effect to reargue matters he argued before the Tribunal. During the hearing the Member pointed out to Mr Baranowski that the invoice from Goodwins Plumbing contained no opinion about the source of the leak or the quality of Mr Walker's work. We agree with the Member that there was no expert or other cogent evidence before him that the new leak was because of poor workmanship by Mr Walker in effecting the first repair. It was clearly open to the Member not to rely upon Mr Baranowski's uncorroborated evidence about what the plumber from Goodwins Plumbing allegedly told him. The Member's conclusion was clearly open to him on the evidence before him. Repairs to second hot water system 1. In relation to the second solar hot water system, in November 2021 Mr Walker changed the circulating pump but the system still failed to operate. His evidence to the Tribunal was that, after he installed the new circulating pump, it became apparent that either the temperature sensors or the circuit board were faulty. He states that at the time Mr Baranowski agreed that the next step was to replace the sensors and Mr Walker offered to check if he had a second-hand sensor at home that would fit. Mr Walker did not contact Mr Baranowski after this. 2. Mr Baranowski engaged an electrician in July 2022 to examine the system. The electrician, Michael Kowalczyk Electrical, attended on 8 July 2022 and found that the control unit seemed to be damaged and that this appeared to be because the control panel was connected in reverse polarity. The electrician further stated that it "appears the incorrect connections were made when the pump was installed". Mr Walker gave evidence that he took photographs of the connections before and after he installed the new pump and that he connected the pump to the control unity with the same connections as previously. 3. As set out above, the Tribunal's finding was that Mr Baranowski had not provided any evidence that the control unit was working prior to the installation of the new pump. Mr Baranowski had thus not proved this aspect of his claim. 4. We have some sympathy for Mr Baranowski's position, but we agree with the Member's finding and conclusion. Even if it is accepted that Mr Walker connected the new pump to the control unit in reverse polarity, there is no evidence that this connection caused the control unit to fail rather than the control unit already being defective. It seems that the solar hot water system had not worked for some time. The evidence of the electrician, Michael Kowalczyk, is not definitive that the reverse polarity caused the control unit to fail. He states that the unit "seems" to be damaged which "appears" to be the result of being connected in reverse polarity. It cannot be discounted that the control unit was not working prior to any work carried out by Mr Walker. As was stated by the Member, there was no evidence that the control unit was working prior to Mr Walker attaching the new pump. This ground of appeal is not made out. Shower waste 1. It is accepted by both parties that in October 2022 when Twin Rivers undertook investigations into why the shower water did not drain, the pre-existing floor waste was not connected to the main waste pipes causing the water to back-up and flood the bathroom. It is also accepted that any connection of the floor waste to the main drain would be underneath the concrete floor slab. The opinion of Twin Rivers was that, because of the depth to which they had investigated under the concrete slab, it was apparent that there was a major issue and that either the floor waste gully was not connected or had been broken at the concreting stage when the house was originally built. The other evidence before the Member was that the room had never been used as a bathroom and was not in fact used as such until after other work was completed in about October 2022. 2. The finding of the Member was that he could not be satisfied that the pipes were broken or blocked when Mr Walker did his work. This finding appears to be based upon the Member's acceptance of Mr Walker's evidence that he drained the hot water tank into the floor waste rather than the evidence of Mr Baranowski that the tank was drained to the outside via a hose. The Member stated that Mr Baranowski's account "was probably a misremembering ... because the presence of several waste holes would have led [Mr Walker] draining the tank into one of them". The Member also placed reliance on the fact that Twin Rivers did not state with any certainty whether the waste pipe had never been connected or whether it had been broken. 3. We consider that the Member failed to adequately consider the evidence of Twin Rivers which was that the floor waste had either not been connected to the main drain or that it had been broken when the concrete was poured when the house was built (some ten years prior according to Mr Baranowski's evidence). The only evidence before the Tribunal that the floor waste was working was the evidence of Mr Walker that he drained the tank down the floor waste without any problem. The only reason given by the Tribunal for accepting Mr Walker's evidence was that, as a plumber, he would have used one of "several waste holes" that were present. No consideration was given to whether he in fact used the floor waste or another waste hole. However, the other available evidence was that at the time Mr Walker did the work there was another functioning waste pipe which was clearly visible into which the tank could have been drained, the room was empty, the room had never been used as a bathroom and that it was not used as a bathroom until October 2022 when the floor waste immediately backed-up. The evidence in the Twin Rivers report was that it had gone down to a depth of 1 metre below the floor grate and could not clear any blockage which indicated a major issue. The extent of the blockage would indicate that the floor waste could not have adequately drained a 400 litre tank without any issue. In addition, there was no evidence before the Tribunal that any work had been carried out between Mr Walker's work in September 2021 and when the shower was first used in October 2022 that could have resulted in damage to the pipe from the floor waste to the main drain under the concrete slab to create such a major issue. 4. In these circumstances, in our opinion the conclusion by the Tribunal that there was not sufficient evidence that the pipes were broken or blocked when Mr Walker did his work was against the weight of evidence. Furthermore, in our opinion Mr Baranowski suffered a substantial miscarriage of justice because of the Tribunal's failure to place sufficient weight on the opinion of Twin Rivers and the circumstances in which the work was done. 5. We are of the view that Mr Walker, acting with due care and skill should have ensured that the floor waste was working properly. We do not accept that he did for the reasons outlined above. Mr Baranowski claims the cost of the new plumbers, Twin Rivers, carrying out investigations and remedial works which included jackhammering up tiles which had been laid down after Mr Walker's work was completed. The Twin Rivers invoice is for $1,705. He also claims the cost of new tiles ($336) and repairs to the tile bed, waterproofing and refitting tiles ($925). It is apparent, however, that the investigative work and some remedial work to connect the waste water from the shower to a functioning waste pipe would have been necessary in any event and paid for by Mr Baranowski. Doing the best we can, we assess that Mr Baranowski should be awarded $2,200 for Mr Walker's failure to carry out building work in respect of the shower waste with due care and skill. Orders 1. To the extent that the appeal raises questions of law, the appeal is dismissed. 2. Leave to appeal granted in part. 3. Appeal allowed in part. 4. Order that the respondent Alan Walker is to pay the applicant Bohdan Baranowski the sum of $2,200 within 28 days of the date of this order. ********** 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: 03 April 2024