Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shaw v Alt [2024] NSWCATAP 178 Hearing dates: 11 September 2024 Date of orders: 17 September 2024 Decision date: 17 September 2024 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President S de Jersey, Senior Member Decision: 1. Leave to appeal is refused and the appeal is dismissed. 2. Within 7 days from the publication of these reasons, any applicant for costs (costs applicant) is to file and serve any application for costs (costs application) which is to include any evidence and submissions, submissions to be not more than 5 pages. 3. Within 14 days from the publication of these reasons, the respondent to the costs application is to file and serve any evidence and submissions in reply, submissions to be not more than 5 pages. 4. Within 21 days from the publication of these reasons, the costs applicant is to file and serve any submissions in reply (not more than 2 pages). Catchwords: ADMINISTRATIVE LAW – jurisdiction of the Tribunal under Part 6A of the Fair Trading Act 1987 (NSW) – whether the respondent is a supplier – meaning of the expression "carry on (or purporting to carry on) a business" – findings concerning whether a pony was owned by an agricultural partnership or by an individual – whether the Tribunal has jurisdiction to determine the sale of a pony – jurisdiction of the Tribunal concerning a contract not entered into in the course of carrying on a business – leave to appeal refused Legislation Cited: Australian Consumer Law (NSW) Constitution Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Tribunal Rules, 2014 (NSW) Fair Trading Act 1987 (NSW) National Parks and Wildlife Act, 1974 (NSW) Cases Cited: Al-Daouk v Mr Pine t\as Furnco Bankstown [2015] NSWCATAP 111 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd [2012] NSWCA 181 Collins v Urban [2014] NSWCATAP 17 Green Square Garage Pty Ltd v ATM Corporation Pty Ltd t/as What You Wreckin [2021] NSWCATCD 92 Levy v Mercedes-Benz Australia/Pacific Pty Ltd (No 2) [2024] NSWCATAP 155 Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 23 Plath v Snowy Monaro Regional Council [2019] NSWCATAP 165 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Smith v Capewell (1979) 142 CLR 509; [1979] HCA 48 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213 Texts Cited: Nil Category: Principal judgment Parties: Appellant: Kate Shaw First Respondent: Jane Alt Second Respondent: Christopher Alt Representation: Appellant (Self Represented) Kyle McCabe (First Respondent) (Second Respondent) Solicitors: Appellant: Not applicable Respondent (Rafton Family Lawyers) File Number(s): 2024/00193228 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 30 April 2024 Before: I Archibald, Senior Member File Number(s): 2023/00393688 reasons for decision Introduction 1. This appeal concerns a children's show pony called Tamlyn Farm Tobias ("pony) that was purchased by the appellant for an amount of $22,000 (inclusive of GST) (purchase price) in 2022. 2. Following purchase, the pony was apparently ridden by the appellant's daughter, including in various riding events. 3. The appellant commenced proceedings in the Tribunal being proceedings number 2023/00393688 (formerly GEN 23/23645) against the respondents by application filed 22 May 2023 (application). She claimed that the respondents were suppliers within the meaning of the Fair Trading Act 1987 (NSW) (FT Act) and that she was a consumer entitled to bring proceedings in the Tribunal on the basis that the proceedings were a consumer claim as defined by Part 6A. In this regard, she asserted that the horse was owned by a rural partnership operated by the respondents, known as CJ & JE Alt (partnership), and was sold to her by that partnership. 4. In her application, the appellant claimed an order that the respondents pay her compensation. This was made up of the purchase price together with various veterinary and feed expenses totalling $11,987, the claim being limited to $30,000 in the application. 5. The claim included assertions by the appellant that the respondents misrepresented the health of the pony and that it was not safe to ride or of acceptable quality. The claim was based on statements made prior to the sale, the fact that the pony was not "fit for purpose" and that there had been contraventions of the Australian Consumer Law (NSW) (ACL), including s 18 of the ACL 6. On 30 April 2024, the Tribunal dismissed the application, concluding the pony was not sold in the course of carrying on or purporting to carry on a business and the pony was owned by the first respondent (Ms Alt) not the partnership. The Tribunal provided reasons for its decision (reasons). In doing so, the Tribunal also made what it described as an "ancillary order" for the respondents to pay the applicant an amount of $2000 within 14 days, this amount representing a refund of GST not properly applied to the sale transaction: see order 1 and reasons at [73]-[74]. The formal orders of the Tribunal (decision) were as follows: 1. The respondents are to pay the applicant $2000.00 within 14 days. 2. The application to the Tribunal is otherwise dismissed. 1. By Notice of Appeal dated 23 May 2024, the appellant appeals the dismissal. History of the proceedings 1. It is necessary to set out a brief history of the proceedings at first instance in order to understand the issues raised by the appellant in this appeal. 2. As stated above, the application was filed on 22 May 2023. Following directions, the proceedings were listed for final hearing which occurred on 12 October 2023. 3. At that hearing, the parties provided evidence concerning what had occurred, including in relation to the formation of the contract, statements made prior to sale concerning the pony, problems experienced by the appellant's daughter who rode the pony as well as health issues which the pony experienced. For present purposes, it is not necessary to record in detail all issues which the appellant raised, it being sufficient to note there was an issue concerning the circumstances in which the contract was formed, the parties to the contract and whether the contract was entered into on 25 April 2022 or 26 April 2022. 4. As necessary we will refer to the evidence concerning these matters below. 5. At the hearing on 12 October 2023, the Tribunal Member said: I want to approach this case according to, strictly according to the law and what the law says about the obligations that apply on the sale of this animal which I, at the moment would take to be coming within Australian Consumer Law as a Consumer sale and as affected by the Consumer Law and the NSW Fair Trading Act and probably you both know in those acts there are various Consumer Guarantees and there are other obligations that have been referred to by Ms Shaw. 1. At the conclusion of the hearing, the decision was reserved. However, after this, by directions made 31 January 2024, the Tribunal raised an issue with the parties concerning whether the claim was in fact a consumer claim and whether the Tribunal had jurisdiction to determine the application. Those directions (January directions) were as follows: 1. In preparing the Decision in this matter the Tribunal has noted as follows: 1. In her Application filed with the Tribunal the applicant claims that she is entitled to damages and financial losses against the respondents "due to the multiple breaches of section 18 under section 236 of Consumer Law." The applicant further claims that she is seeking orders "to be reimbursed from this seller within my Consumer Rights in the option provided to me by Fair Trading." 2. In her submissions to the Tribunal the applicant has also referred to "multiple breaches under the Consumer Law Act" by the Respondents, the "consumer guarantee" under the "Australian Consumer Law" and to various sections of the Australian Consumer Law upon which she relies. 3. Under section 79D of the Fair Trading Act 1987 (NSW) "consumer" is defined to mean "Any of the following persons or bodies to whom or to which a supplier has supplied, or agreed to supply, goods or services (whether or not under a contract), or with whom or with which a supplier has entered into a contract that is collateral to a contract for the supply of goods or services— (a) a natural person 4. The term "supplier" is defined in s 79D of the Fair Trading Act as follows: "supplier" means a person who, in the course of carrying on (or purporting to carry on) a business, supplies goods or services. 5. Section 18 of the Australian Consumer Law (NSW) upon which the applicant relies provides: (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. 6. Various of the other sections upon which the applicant relies require the applicant to establish that the respondent either a "supplier" within the meaning of s 79D of the FTA or that the pony the subject of the Application was supplied by the respondent to the applicant "in trade or commerce". 7. In the interests of procedural fairness to both parties the Tribunal notes that the question of the jurisdiction of the Tribunal to determine the proceedings was not raised by either party, in their submissions, or at the hearing of this matter. 8. The Tribunal considers that before determining this Application it should proceed as follows: a. Each of the parties should have the opportunity to make submissions and to present any further written evidence which they may wish to provide going to the issue as to whether the Tribunal has jurisdiction to determine the Application. b. The applicant should provide her evidence and submissions first, followed by the respondent, with the applicant thereafter having the opportunity to reply. c. After the submissions had been received, the Tribunal will decide whether it is in a position to decide the matter on the material provided, or whether a further hearing on the issue of jurisdiction is necessary. 9. Accordingly the Tribunal now issues the following Directions: 1. By 16 February 2024 the applicant is to provide to the Tribunal and the respondents any further submissions or evidence upon which she may seek to rely in order to establish that the Tribunal has jurisdiction to determine the Application. 2. By 5 March 2024 the respondents are to provide to the Tribunal and to the applicant any submissions and evidence in response to the submissions of the applicant. 3. By 15 March 2024 the applicant is to provide any submissions in reply to the submissions of the respondent. 4. The Decision in this matter is further reserved. 1. Each of the parties provided further submissions and documents. As necessary, we will refer to these matters below. 2. There was no further hearing held by the Tribunal nor was any hearing requested by the parties. Rather, the Tribunal prepared written reasons which were published with the decision on 30 April 2024. Relevantly, having set out the parties submissions in relation to the jurisdictional issue and parts of the FT Act, the Tribunal said at [63]-[72] (footnotes excluded): Did the respondents supply the Pony in the course of carrying on a business? 63 In Smith v Capewell ("Kangaroo Skins case") [1979] HCA 48; (1979) 142 CLR 509 (4 October 1979). Chief Justice Barwick said a 514-515: 23. The expression "carry on business" would in general refer to some repetitive act in a trade and only rarely be satisfied by the proof of only one transaction. 64 Gibbs J said at 517-518: 5. In my opinion, an isolated sale of kangaroo skins, not made in the course of carrying on a wider business of selling such skins, would not be an offence against s. 105 (a) of the Act. The expression "carry on business", in its ordinary meaning, signifies a course of conduct involving the performance of a succession of acts, and not simply the effecting of one solitary transaction. In Smith v. Anderson (1880) 15 Ch D 247 , where the Court of Appeal considered the effect of s. 4 of the Companies Act, 1862 (U.K.) which spoke of an "association...formed...for the purpose of carrying on any... business", Brett L.J. said (1880) 15 Ch D, at pp 277-278 : "The expression 'carrying on' implies a repetition of acts, and excludes the case of an association formed for doing one particular act which is never to be repeated." In Kirkwood v. Gadd (1910) AC 422, at p423 , Lord Loreburn L.C. said: "What is carrying on business? It imports a series or repetition of acts." In the same case Lord Atkinson (1910) AC, at p 431 , referred with apparent approval to the statement of Brett L.J. in Smith v. Anderson (1880) 15 Ch D, at pp 277-278 . … A single transaction may amount to the carrying on of a business, although no other transaction has so far been effected, if it is proved that there was an intention to carry on a business and that the transaction was undertaken in pursuance of that intention: Fairway Estates Pty. Ltd. v. Federal Commissioner of Taxation [1970] HCA 29; (1970) 123 CLR 153, at pp 164-165 . It seems clear that a solitary transaction of sale or purchase of skins in New South Wales will only constitute an offence against s. 105 (a) of the Act, if the sale of purchase has been made by the defendant with the intention that it shall be the first of several transactions in a business which he thereby commences to carry on, or if it has been made in the course of a business which the defendant is carrying on elsewhere. (at p519) 65 Mason J said at 524: 4. Before I turn to the evidence, I should emphasize that what is prohibited by s. 105 (a) is the carrying on in New South Wales of the business of a skin dealer without a licence. In order to fall within the prohibition it is necessary that the defendant should engage in activities in New South Wales that constitute the carrying on of the business of a skin dealer. It would not be enough, for example, to show that the defendant entered into a single or isolated contract for the sale of skins. If this be all that emerged from the evidence, it could not be said that he was a dealer in skins or that what he did was something done in the course of carrying on the business of a skin dealer. (at p524) 66 Having regard to the above High Court authority I find that the supply of the Pony by the respondents by way of the sale to the applicant was not made in the course of carrying on a business. The supplier was not part of a course of conduct which involved the performance of a "succession of acts" as referred to by Justice Gibbs. Nor was it "a repetitive act in a trade" as referred to by Chief Justice Barwick. Rather, it was a "single or isolated contract" as referred to by Justice Mason. 67 Furthermore, I am not persuaded that the Pony was owned by the business known as "CJ Alt & J.E. Alt" (or "CJ & JE Alt") at the time of the sale. The previous owner of the Pony, Mrs Natalie Jane Currall had included in her Statutory Declaration a statement that she had "sold Toby to Jane Alt" and the pre- purchase inspection report by "Equine Veterinarians Australia" had identified "Jane Alt" as the purchaser of the Pony. If the Pony was owned by Mrs Alt, it could not have been sold in the course of business by the farming partnership. There was no evidence before the Tribunal of any assignment by Mrs Alt of an ownership interest in the Pony to the partnership. Was the Pony sold in the course of purporting to carry on a business? 68 However, it is further necessary to determine whether the Pony was sold by the respondents "in the course" of "purporting to carry on a business", as referred to in the definition of "supplier" s 79D of the FTA. 69 Whilst the inclusion of the Australian Business Number of the respondents on the tax invoice, as well as the inclusion of the trading name of the partnership, and the claiming of GST would weigh in favour of the sale being made in the course of purporting to carry on a business, in my opinion there was no "course," in the sense of a series of successive acts, of the respondents purporting to carry on the business in which the Pony was sold. 70 The single act which comprised the alleged "purporting" was the wording of the tax invoice which the respondents had drafted based on their understanding or assumption as to the advice which they had received from their accountant. However, the sale was not made in the course of the actual business of the respondents namely, primary production, and there was no actual business of the respondents in selling children's ponies. In my opinion, the single act of the drafting of the tax invoice based on a mistaken view of the accountant's advice or an assumption in relation thereto, is not sufficient to establish that the sale was made by the respondents in the course of them purporting to carry on a business. 71 Furthermore, in my opinion, the contract to sell the Pony was concluded before the tax invoice was issued. The applicant inspected the Pony at the premises of the respondent on 25 April 2022. Then, whilst she was travelling back to her home, the respondent removed the advertisement for the sale of the Pony from "Emma's Website" and sent a photograph of the pony to the applicant extracted from the website but with the advertisement now deleted and appearing above the photograph of the Pony were the words ""SOLD!! Tamlyn Farm Tobias. Sold within 24 hours to the first person to ride him. Wishing the new owners all the best for the future." I infer from this that the agreement between the parties, had been concluded prior to the removal of the advertisement. 72 Four the above reasons, I find that the respondents were not a "supplier" within the meaning of s 79D of the FTA and this has the consequential finding the Tribunal does not have jurisdiction to determine the application. Notice of Appeal and history of appeal proceedings 1. The Notice of Appeal was filed in time. 2. The grounds of appeal were difficult to read due to the font size in the Notice of Appeal. However, the appellants subsequently filed a legible copy of the grounds of appeal. These grounds raised the following matters: The factual or legal basis for the Tribunal's decision The Tribunal erred in the finding that no jurisdiction existed to determine the application. Issues of principle. Factual error that was unreasonably arrived at and clearly mistaken. Injustice which was reasonably clear. The Tribunal took into account irrelevant information. Question of law. Not fair and equitable against the weight of evidence. Significant new evidence. 1. The appellant also said: 1. The Tribunal made a finding of fact without evidence to support it. Here the appellant said there was no evidence to support the Tribunal's conclusions: 1. that the tax invoice had been prepared "based on a misunderstanding" of what the respondent had been told by their accountant, 2. that the transaction selling the pony to the appellant "was a one-of solitary transaction through [the respondents'] business"; 3. that the "ponies are not sold in the course of carrying on a business (or purporting to carry on) a business by the respondents". 1. the Tribunal took into account irrelevant information. This challenge related to the conclusion concerning when the contract was formed, being the Tribunal's findings concerning taking down of the Internet advertisement for sale and failing to take account of relevant considerations such as the tax invoice and text correspondence. In this regard the appellant referred to the three stages of contracting, namely offer, acceptance and consideration. 1. Finally, the appellant sought leave to appeal on the basis the decision was not fair and equitable or was against the weight of evidence. As necessary, we will return to her submissions on this aspect below. New evidence was also sought to be relied upon in seeking leave. 2. In raising these matters, the appellant said the "respondents at no point in any of this process have attempted to question the jurisdiction of the Tribunal". In this regard the appellant said the respondents' conduct "implied that they accepted the jurisdiction of the Tribunal". 3. It is sufficient to dispose of this last point by noting that the Tribunal is a statutory body authorised to determine disputes for which it is granted jurisdiction. As such, as reflected in many authorities of superior courts, including the High Court of Australia, the Tribunal must first determine that a dispute brought before it is within jurisdiction before it is able to adjudicate on the dispute. Parties cannot consent to jurisdiction the Tribunal does not have. If not within jurisdiction, the proceedings should properly be dismissed. The case of Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213 is an example of where this Tribunal must determine the anterior question of jurisdiction, albeit in that case the issue arose in the context of whether the Constitution prevented this Tribunal from hearing a dispute raising a federal matter because it is not a Court of a State. 4. Following a call over, each of the parties provided written submissions and evidence in support of their particular positions. 5. The hearing of the appeal occurred on 11 September 2024. The appellant represented herself. Ms Alt represented the respondents. Each party provided oral submissions. As necessary, we will refer to the parties' written and oral submissions below. 6. Also present was Mr Kyle McCabe, who identified himself as a lawyer. Ms Alt describing him as a "McKenzie friend". We did not permit Mr McCabe to make submissions or appear for the respondents. However, during the course of submissions, he did provide assistance to the Appeal Panel by identifying particular references in the documents and reasons about which we made enquiries. 7. At the commencement of the hearing we identified the documents upon which the parties wished to rely which had been provided to the Appeal Panel for the purpose of the hearing. We raised with the parties the following matters: 1. A complete transcript had not been provided for the appeal. We indicated that while we had been provided a copy of the sound recording, we would not be listening to it having regard to the directions made and because without a typed copy and specific matters being identified, the opposing party would not have an appropriate opportunity to respond. 2. Following discussions with the parties, neither wished to provide a complete copy of the transcript. We indicated we would proceed on the basis of the material provided and, to the extent there was evidence missing, that may result in relevant matters not been proved in the appeal. 3. It appeared we may not have been provided with all documentary evidence relied upon in the proceedings at first instance. No request was made to correct any deficiencies. Again we will proceed in the absence of this material. 1. The issue of completeness of the documents was again raised to during the course of oral submissions, as was the fact the Appeal Panel had made directions for the parties to provide all relevant documents from the proceedings at first instance if they were to be relied upon during the appeal. As noted above, neither party sought leave from the Appeal Panel to add to the material which had been provided to us. 2. Finally, new evidence, in the form of documents and statements made in written submissions on appeal, was identified. We referred the parties to the Appeal Panel decision in Al-Daouk v Mr Pine t\as Furnco Bankstown [2015] NSWCATAP 111 (Al-Daouk). Al-Daouk considered the meaning of the expression "significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)" found in Sch 4 cl 12(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). This provision limits the circumstances in which a party may be permitted to rely on new evidence for the purpose of an appeal from a decision of the Consumer and Commercial Division (of which this decision is one). 3. We will deal with the issue of new evidence below. Consideration 1. There is a right of appeal on a question of law. Otherwise leave to appeal is required: s80(2)(b) NCAT Act. Because this is an appeal from a decision of the Consumer and Commercial Division, leave may only be granted if the Appeal Panel is satisfied there may have been a substantial miscarriage of justice because the decision was not fair and equitable, against the weight of evidence or there is significant new evidence which has arisen that was 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 applicable to the grant of leave. 2. The substance of the appellant's claim on appeal was that the Tribunal erred in failing to conclude the respondents (or one of them) were a supplier of goods within the meaning of the FT Act and that the Tribunal had jurisdiction to determine this dispute. In addition, the appellant contended there was no evidence to support various findings of fact made by the Tribunal in concluding the respondents or either of them were not a "supplier" as that term is defined in 79D of the FT Act. The appellant also said that the Tribunal failed to have regard to relevant evidence. 3. Reference was made to various decisions including: 1. Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd [2012] NSWCA 181 at [58], which concerned a failure to take account of relevant evidence; 2. Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (Pollard) at [62]-[63], referring to State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 at [94], which concerned the requirement for a decision maker to deal with "evidence which is important or critical to the proper determination of the matter"; and 3. Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 (Lo), the appellant saying the decision of the Tribunal in the present case was manifestly unreasonable. The appellant relied on the statement of Basten JA [in Lo at [10], where His Honour said: The next concept is that of "taking into account". It covers a spectrum of conduct. If a decision-maker who gives reasons for a decision makes no reference to a particular matter, it may be inferred that he or she disregarded it, either deliberately or through inadvertence. In either case, if it were a mandatory consideration, there would be an error of law. If, however, the matter is referred to there may still be a basis for review. In some cases, it is asserted that there has been a failure to give "proper, genuine and realistic consideration", to a particular matter. That is best understood as a complaint of failure "to give adequate weight to a relevant factor of great importance": see Peko-Wallsend at 41 (Mason J). The other side of this complaint is giving "excessive weight to a relevant factor of no great importance". Dealing with these circumstances, Mason J continued: "The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'. This ground of review was considered by Lord Greene MR in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it." 1. The appellant also contended that she was a consumer as that term is defined in s 79D and that the presumption in s 79H that she was a consumer, which operated in her favour, was not displaced by any evidence of the respondents. This was said to support the contention the proceedings were a consumer claim and the Tribunal therefore had jurisdiction. On this point, the appellant's submission was misconceived. Any presumption that she was a consumer does not mean that the respondents were suppliers. 2. As noted above, the definition of a "supplier" is found in s 79D of the FT Act which says: supplier means a person who, in the course of carrying on (or purporting to carry on) a business, supplies goods or services. 1. "Goods" is defined in s 79D to mean "any tangible thing that is or may be the subject of trade or commerce, but does not include money or an interest in land". "Supply" is defined in s 79G. There is no dispute the pony could be goods for the purpose of s 79D nor that if it was sold by a supplier within the meaning of the FT Act, there would be a supply of goods by way of sale within the meaning of s 79G(1)(a). Rather, the issue is whether the respondents, or either of them was a supplier within the meaning of the FT Act. 2. As set out in the reasons extracted above, in determining whether the pony was supplied in the course of carrying on a business, the Tribunal referred to the decision of the High Court in Smith v Capewell (1979) 142 CLR 509; [1979] HCA 48 ("Smith's case"). Inter-alia, that case concerned whether the respondent (Capewell) had carried on a business in contravention of the National Parks and Wildlife Act, 1974 (NSW) (NPW Act). Ultimately, the High Court dismissed the proceedings finding the sale, said to have contravened the NPW Act, was protected by s 92 of the Constitution (which relates to interstate trade). In doing so, the Court considered what was necessary to carry on a business. 3. The focus of the Tribunal was on whether the respondents, or either of them, was carrying on the business of buying and selling ponies. The Tribunal did not appear to consider whether, having regard to the definition of supplier, the respondents, or either of them would fall within this definition if the pony was used in the course of carrying on an agricultural business constituted by the raising and selling of sheep and cattle and the growing and selling of hay (being the business conducted by the partnership). For example, if the pony was used for the purpose of mustering and livestock management in the course of carrying on the business, on one view the requirements of the definition of supplier could be met. 4. For the reasons that follow, we have decided that it is not necessary to resolve this question of statutory construction. This is because, even if this legal question was resolved in favour of the appellant, the facts found by the Tribunal as to who acquired the pony and what it was used for would still not result in a finding that the respondents, or either of them, was a supplier for the purpose of the FT Act. 5. As noted above, the Tribunal made the following findings of fact: 1. Ms Jane Alt was the owner of the pony. It was not part of the partnership property: reasons at [67]. 2. The Tribunal accepted that "the inclusion of the trading name of the partnership, and the claiming of GST would weigh in favour of the sale being made in the course of purporting to carry on a business". However following the analysis arising from a consideration of Smith's case, the Tribunal found that there was no "course", in the sense of a series of successive acts of selling ponies: reasons at [69]. 3. The raising of the tax invoice was based on a misunderstanding of advice the respondents had received from an accountant and was "not sufficient to establish that the sale was made by the respondents in the course of them purporting to carry on the business": reasons at [70]. 4. Further, the contract was, in any event, formed before the tax invoice was issued: reasons at [71]. 1. In doing so, the Tribunal ordered repayment of the GST included in the tax invoice on the basis the sale price was $20,000, not $20,000 plus GST: reasons at [72] and order 1 of the decision. In this regard we note that GST does not apply to a sale of private property between individuals. 2. In reaching these conclusions, the Tribunal identified the submissions of the parties which included: 1. a submission by the appellant that the purchase and sale of the pony was part of the business of the partnership, reference being made to the evidence of the respondents that the partnership involves "a livestock, cattle, sheep and cropping operation" and to the issue of the tax invoice: reasons at [44]-[46]; 2. a statement by the respondents that any purchase and sale of ponies by them "is a personal transaction for the purposes of their daughters' horse riding activities" in this regard they said: When their daughters outgrow a pony, they may sell the existing pony and purchase a different pony more suited to their own needs. 1. Of such transactions, they submitted it was "akin to an individual deciding to sell a personal motor vehicle to purchase a large motor vehicle for a growing family. The act of selling the motor vehicle is a personal transaction.": Reasons at [48]. 1. In referring to the respondents' submissions, the Tribunal made reference to the decisions of Green Square Garage Pty Ltd v ATM Corporation Pty Ltd t/as What You Wreckin [2021] NSWCATCD 92 at [30] which, in turn, referred to the decision of the Appeal Panel in Plath v Snowy Monaro Regional Council [2019] NSWCATAP 165. These decisions also considered the meaning of carrying on the business. 2. The essential question is whether the factual finding that the sale was not made in the course of carrying on the business of the partnership is correct. 3. First, the appellant says there was no evidence to support this finding. In part, this is because the appellant says relevant evidence was not adduced at the hearing. 4. The matters to which we have referred above, as recorded in the reasons, is evidence relevant to determining the question of whether the pony was sold in the course of carrying on the business of the partnership. The relevant documents recording the evidence are identified below. Hence the "no evidence" submission fails. 5. Further, insofar as the evidence was provided after conclusion of the hearing, the Tribunal was entitled to call for further evidence and submissions prior to making any final decision. In making the January directions, the parties were afforded an opportunity to be heard. The material provided through this process was material which the Tribunal was entitled to consider in determining the question of whether the pony was owned by and sold by the partnership in the course of carrying on a business. 6. While there was no oral hearing following the provision of further documents, neither party requested such a further hearing nor suggested it was necessary. 7. Consequently, any challenge based on procedural fairness ground must fail. 8. The appellant also put the "no evidence" submission on the basis that there was no evidence to support the following particular findings: 1. that the tax invoice issued under the partnership ABN was based on a misunderstanding of the respondents with the advice received from their accountant; 2. that the sale of the pony "was a one-off solitary transaction through [the partnership]". 1. Implicitly, these submissions suggest the sale of the pony was in fact by the partnership. 2. The Tribunal did not accept the partnership either owned the pony or sold it: reasons at [67]. 3. The evidence provided by the respondents to support the findings consisted of statutory declarations from themselves and from Ms Currall (the previous owner of the pony) and various other documents setting out the history of what occurred. This evidence includes evidence from Ms Currall that the pony was sold by her to Ms Alt (not the partnership) – see Respondents Submissions on appeal (RB) p8 para 14 of Ms Currall's statement – and that the pony was used as a children's horse and was ridden by children at various equestrian events, such as the Royal Easter Show in Sydney. 4. There is no evidence to which we were referred which suggests that the pony was either stock in trade for the partnership or that the pony was otherwise used for the purposes of the partnership, such as mustering livestock, other than the tax invoice. 5. On the other hand, in the submissions provided in response to the January directions, the respondents indicated that the sale of the pony was a "personal transaction" and that neither of them was a supplier within the meaning of the FT Act: RB p61 para 8. As to the evidence concerning their misunderstanding about the advice from their accountant, this is found at RB p 62 para 13. 6. The rules of evidence do not apply to these proceedings and the Tribunal was entitled to "enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice": s 38(2) NCAT Act. Consequently, the Tribunal was entitled to take these statements made by each of the parties as evidence in the proceedings. 7. In order to succeed on the factual challenge to the findings that the purchase and sale of the pony was not part of the business of the partnership, the appellant must obtain leave to appeal. 8. As stated above, to grant leave we must be satisfied that the appellant may have suffered a substantial miscarriage of justice. 9. As to the new evidence, including various Internet searches and other information provided by the appellant and/or the respondents, we reject this material. The evidence in question was reasonably available at the time of the original hearing as that term is explained in Al-Daouk at [19] and following. Indeed, it was reasonably available and permission could have been sought to provide it at any time up until the Tribunal delivered its decision. Certainly, it could have been provided as permitted by the January directions. 10. As to the decision not being fair and equitable, the appellant refers to the fact that the Tribunal called for submissions after the hearing concluded. The appellant also says the "respondents conduct intentionally prevented [her] from having [her] allocated time to respond to the new allegations as prescribed in the orders". This submission appears to be related to some late delivery of submissions by the respondents to the Tribunal in consequence of the January directions. 11. We are not satisfied any of these matters constitute a relevant unfairness or inequity such to warrant the grant of leave to appeal. The appellant was afforded an opportunity to make such submissions as she wished, including in reply to the respondents' submissions, and could have asked the Tribunal for an extension of time. Rather, she limited her response to complaints about late performance by the respondents. 12. As to the decision being against the weight of evidence, as noted above, we have identified the evidence in the material provided to the Tribunal entitling it to conclude the sale of the horse was a personal transaction by its owner, Ms Alt, not the partnership. To quote the words of the Appeal Panel in Collins at 77(2), it could not be said "the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach". 13. It follows that we are not satisfied the appellant may have suffered a substantial miscarriage of justice. Consequently, leave to appeal should be refused. 14. For completeness, we should deal with two further matters. 15. First, the appellant challenged the finding of the Tribunal about when the contract was formed. Whether the Tribunal was correct as to when the contract was formed, does not affect the conclusions about who owned the pony and who were the contracting parties. 16. Further, and in any event, the Tribunal had competing evidence concerning when the offer to sell contained in the Internet advertisement was accepted. 17. The question of when a contract is formed depends upon when acceptance was received by the offeror (the respondents) from the offeree (the appellant). The evidence of when the Internet advertisement was taken down, when taken with the respondents' other evidence, is material from which the Tribunal was entitled to infer the appellant had conveyed to the respondents an acceptance of the offer on 25 April 2022 and, therefore, to conclude the contract was formed on this date. 18. Secondly, we are not satisfied the reasons given by the Tribunal were inadequate. 19. The appellant placed reliance on the decision in Pollard. In Pollard, McColl JA referred to the decision Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. There, at 443-4, Meagher JA said: … the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of a set of evidence should be referred to. Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, we are findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported). Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well. Whilst it is desirable to address these elements in giving reasons for decision, it is the purpose for which the reasons serve which issue primary importance in determining the content of the reasons. That purpose must be weighed against other considerations. It has been noted in this Court that the content required of a statement of reasons is to be measured against the burden that the provision of reasons imposes on the judicial system: Sinak v Tess (Court of Appeal, 15 March 1995, unreported). 1. His Honour then said at 444: It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: we know reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered. … Lastly, it is to be noted that an appealable error arising from inadequate reasons does not necessarily mean that a new trial is required. An appeal court is 1. More recently, in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 23, Bell P (as the Chief Justice then was) set out the principles in evaluating whether reasons provided by the Tribunal were adequate. There, His Honour said at [70]-[72]: 70 As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court. 71 That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. 72 Whilst s 62(3) provides a useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed. 1. His Honour then continued at [76]-[77]: 76 What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context: Pozzolanic at 287. 77 These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291; (v) this there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291. 1. A fair reading of the decision leads us to the conclusion that the Tribunal had regard to the evidence before it, the submissions made by the parties, the Tribunal's understanding of the law and that the Tribunal applied the facts to the law. Consequently, it could not be said the reasons in the present case were inadequate. 2. The Tribunal was entitled to conclude on the evidence before it that the pony was purchased by Ms Alt and used by her children for eventing purposes and that the pony was not part of the partnership business. Orders 1. The appellant has not established any error on a question of law nor has she satisfied us leave to appeal should be granted. Leave to appeal should be refused and the appeal should be dismissed. 2. In saying so, we should make some concluding remarks: 1. There was no challenge to the order for repayment of the GST in the sum of $2000. There was no cross-appeal by the respondent against this order. While we have some doubt that the order made is properly to be considered an "ancillary" order which the Tribunal could make under s 29(2)(a) of the NCAT Act, as the point was not raised by either party it is not appropriate for us to deal with this question now. 2. The Tribunal had no jurisdiction to determine the substantive claim. We have not done so on appeal. Whether the appellant has rights which could be pursued in the Local Court arising from the contract for sale is a matter about which the appellant should obtain independent legal advice if she wishes to pursue any other claim. 1. Finally, during the course of the hearing the respondents raised the question of costs. In particular, Ms Alt indicated she may wish to make a claim for her time spent in preparing for this appeal and attending at the hearing. 2. In response, the appellant noted that the amount claimed was $30,000. While she identified heads of damage in excess of this amount, she noted any excess was not being pursued. 3. In light of these comments, we drew to the parties attention the following matters: 1. Firstly, the amount claimed was not more than $30,000. Therefore, s 60 of the NCAT Act would appear to apply in respect of costs. That is, each party is to pay their own costs unless there are special circumstances: see NCAT Act s 60 and cf r 38 and 38A Civil and Administrative Tribunal Rules 2014 (NSW). 2. Secondly, we indicated that individual litigants are not usually entitled to recover their personal costs in preparing for a hearing or attending the hearing: see e.g. Levy v Mercedes-Benz Australia/Pacific Pty Ltd (No 2) [2024] NSWCATAP 155 at [12]. 1. While we will make directions to permit either party to make a costs application in the appeal, these matters should be considered if a costs application is to be pursued and addressed in any submissions. 2. The orders of the Appeal Panel are as follows: 1. Leave to appeal is refused and the appeal is dismissed. 2. Within 7 days from the publication of these reasons, any applicant for costs (costs applicant) is to file and serve any application for costs (costs application) which is to include any evidence and submissions, submissions to be not more than 5 pages. 3. Within 14 days from the publication of these reasons, the respondent to the costs application is to file and serve any evidence and submissions in reply, submissions to be not more than 5 pages. 4. Within 21 days from the publication of these reasons, the costs applicant is to file and serve any submissions in reply (not more than 2 pages). ********** 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: 17 September 2024