Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Liu v Australian Water Project Management Pty Ltd [2024] NSWCATAP 254 Hearing dates: 9 September 2024 Date of orders: 11 December 2024 Decision date: 11 December 2024 Jurisdiction: Appeal Panel Before: R Titterton, Senior Member D Goldstein, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. Catchwords: APPEAL – Not fair and equitable – Tribunal using resolution process – Section 37 Civil and Administrative Tribunal Act 2013 Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: Tianshu (Janet) Liu (Appellant) Australian Water Project Management Pty Ltd (Respondent) Representation: Appellant (Self Represented) Respondent (Self Represented File Number(s): 2024/00216682 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 31 May 2024 Before: Mr D. Ash General Member File Number(s): 2023/368497 REASONS FOR DECISION 1. The appellant appeals against a decision in the Consumer and Commercial Division of the Tribunal in which her claim for damages for breach of contract against the respondent was dismissed. 2. The appellant was building a duplex and as part of that process obtained a services protection report from the respondent which was to be used for the purposes of protecting Sydney Water assets when pouring concrete or carrying out construction work which affected those assets. 3. The service protection report provided by the respondent was incorrect as regards the depth of the Sydney Water assets with the consequence that the appellant claimed two categories of damages which she alleged she sustained as a result of the error. First, she claimed damages allegedly sustained because of delay. Secondly, she claimed damages for additional work that had to be carried out because of the respondent's error as regards the depth of the Sydney Water assets. The total amount claimed in her application was $12,000.00, which was stated to include $6,712.47 +GST for the extra she paid for the additional work, $3,274.00 for 3 weeks mortgage payments, $148.00 for 3 weeks of toilet hire and her personal costs. 4. The respondent did not dispute that it had made an error of the type described above in its service protection report. The appellant accepted that despite the respondent's error, she was always obliged to undertake additional excavation in order to encase the Sydney Water assets with concrete. Her argument at the hearing was that due to the respondent's error, she lost the opportunity to obtain a competitive price for the additional work she was obliged to carry out. 5. The sum of $6,712.47 claimed by the appellant for the additional work was calculated by taking the amount she actually paid for all of the work carried out by her plumber for a scope of work which included the additional work, namely $19,482.27 and deducting from that $12,770.00 which was an amount quoted for a similar scope of work by a third party. The third party quote was obtained by the appellant after all of the work had been carried out. Notice of Appeal 1. In her Notice of Appeal the appellant stated her Grounds of Appeal in the following terms: 'There is an inconsistency/error between the order and of what the tribunal member had stated during the hearing. During the hearing, Officer D Ash stated that the respondent, AWPM will need to make compensation to me, He said it is only a matter of what figures to pay, and $0 is very unlikely in my case. Clearly he thought i was entitled for the compensation. And he had proposed a figure of $4750 during the hearing for both of the party to negotiate., and he informed us that if we did not come into agreement, he will decide on a figure in the final order, which could be more than $4750 or could be less than $4750. He never mentioned about a dismissal. But in the final order, throughout his reasoning for the decision, he got confused from the documents we supplied, he confused what my initial claim was and came up with the decision of dismissal based on wrong assumption and wrong claim.' 1. The appellant sought leave to appeal because the decision of the Tribunal was not fair and equitable. Appeal jurisdiction 1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT' Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)). 2. As regards the leave of the Appeal Panel, clause 12(1) of Schedule 4 of the NCAT Act states: 'An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).' 1. In Collins v Urban [2014] NSWCATAP 17 an appeal panel stated at [74 – 78]: 'Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where 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 - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved, then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence.' 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." 1. An appeal does not entitle a party to revisit the substance of what was said or done at the first hearing. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an appeal panel stated: 'An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.' Not fair and equitable 1. In that part of the Notice of Appeal in which the appellant described in detail why the decision was not fair and equitable, the appellant asserts that the Tribunal Member made an incorrect assumption that she was claiming for the whole cost of the concrete encasement of the Sydney Water assets and as a result concluded that that she had not established a loss and dismissed her claim. The appellant described her claim in the following words in section 6Bi of the Notice of Appeal: 'My claim had always been to seek compensation for the extra cost incurred to me as a result of the incorrect report provided by the respondent, that was clearly evident from my initial NCAT application. My claim was if I had the correct report initially, it would not cost me $19,482.27 + gst for the whole job, I could simply get the job done by $12,770 +gst (legitimate quote from third party constructor) and I am claiming the difference I paid between the above 2 figures.' 1. The appellant also asserts that the Tribunal Member made another incorrect assumption, namely finding that she contracted to have the work done because she thought she was given a reasonable price for the work. It is asserted that this was a wrong assumption because the appellant asserts that she paid the to have the work done at the price found because she had no choice, not because she considered the price to be reasonable. 2. Considering this aspect of the Appeal generally, we have come to the conclusion that this complaint is an application for leave to appeal on the basis that the decision of the Tribunal was against the weight of evidence. Self-represented parties 1. The approach taken in the preceding paragraph is an orthodox way to proceed in the case of a self-represented party. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ('Prendergast') at [12] an Appeal Panel stated: 'In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. 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.' 1. Such an approach was confirmed in Cominos v Di Rico [2016] NSWCATAP 5 where an Appeal Panel stated at [13]: 'It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. However, this must be balanced against the obligation to act fairly and impartially' Reply 1. In its Reply, the respondent states that the Tribunal Member did not say that the respondent would be required to pay compensation. The respondent states that the Member encouraged the parties to settle, but when the settlement did not occur the application was dismissed with reasons given. The respondent states that the appellant seeks to re agitate arguments from the original hearing, but does not identify an error of law. It is stated that the decision was not unfair or inequitable: to the contrary, it was based on the evidence given before the Tribunal which did not support the claim. The Tribunal Decision 1. The following facts emerge from the Tribunal's decision which are not challenged by the applicant. 1. In or around March 2023 the appellant retained the respondent to provide a service protection report, the purpose of which was to ensure, the protection of Sydney Water's assets when a concrete pour or other work took place; 2. A report was provided and the appellant sought a quote from a plumber to do work on the basis of the report. The parties agreed that there were three components to the quote, a water service, a server sideline and concrete encasement. The quote was $10,990 + GST and the appellant accepted the quote in April 2023. 3. The plumber and the appellant arranged for the work to occur on 23 August 2023. The plumber found that the report was inaccurate. As a result, the work except the concrete encasement was completed on that day. The respondent attended at the site and on 25 August provided an amended service protection report. 4. The respondent's error in the service protection report was that the March 2023 report identified Sydney Water assets at about 1m depth and the August 2023 amended report identified Sydney Water assets at about 2m depth. 5. Over the next week both the plumber and the respondent quoted to do the extra work, that is the work that could not be completed on 23 August 2023. The plumber reduced its quote which the appellant accepted. 6. The work was completed on or around 1 September 2023. 7. The plumber's final cost of doing the work was $19,482.27 exc GST. 1. The Tribunal Member's reasoning process was to have regard to what actually occurred. The Tribunal Member found that the prices obtained by the appellant for the work carried out by the plumber were reasonable, and that the price paid by the appellant for the additional work necessitated by the respondent's error, was obtained after competitive bidding between the respondent and the plumber. In addition the Tribunal Member found that there was no evidence that in paying for the additional work necessitated by the respondent's error, the appellant 'had to pay a premium for urgency'. 2. The Tribunal Member relevantly stated in connection with the quote for $12,770.00 obtained by the appellant: 'The real issue is how this quote is to be assessed on the evidence already before the Tribunal.' 1. The Tribunal Member answered the question by concluding that he was not satisfied that the quote obtained by the appellant justified the Tribunal ignoring what actually occurred. As a result of the findings that: 1. the prices obtained by the appellant for the work carried out by the plumber were reasonable, 2. the price paid by the appellant for the additional work necessitated by the respondent's error, was obtained after competitive bidding between the respondent and the plumber; and 3. there was no evidence that in paying for the additional work necessitated by the respondent's error, the appellant 'had to pay a premium for urgency', the Tribunal Member in effect found that he was satisfied that the cost incurred by the appellant was a cost that she would have occurred if the March 2023 service protection report had been correct. Determination of the application for leave to appeal 1. The Tribunal Member clearly understood the appellant's argument. He stated: 'This claim is essentially a "but for" claim. The home owner says but for the admitted error which manifested itself in the uncompleted component of the work scheduled on 23 August 2023, she would have been able to bargain for a cheaper price than she had to pay. In the words of her application "I believe if I had been given the correct [report] in the first place, the construction job would cost much less if I had the time to look around and compare prices." 1. And later in the reasons: 'The home owner provided in her documents a quote from a third party plumber of $12,770 + gst, a little over $14,000 inc. The argument, clearly enough, is "I ought to have had the correct report in March 2023, had I had the correct report I would have got a quote which reasonably can be taken to have been $12,770 + gst, I have paid $6,755 + gst, I want the difference." 1. In her submissions in support of her appeal, the appellant referred to the fact that the Tribunal Member stated at the hearing that the respondent would need to make compensation to her and did not mention that her application might be dismissed. Extracts from the transcript have been provided which indicate that the Tribunal Member was giving the parties an opportunity to settle the appellant's claim before he made a decision, and as part of that process suggested a figure of $4,750 that the parties might consider. The extracts provided record the Tribunal Member as stating: "Please be remind what I about to say does not indicate at all the decision I will reach, I will reach the decision after I gone back over the evidence and I've consider what you've said today, the decision I reach may well be well below and it may well be well above, now I am suggesting something now, that it will include a figure, and I'm just making this figure to give the parties the opportunity to see if they could reach a conclusion, what I am proposing is that I give that figure as a suggestion, not based on my assessment of what the case is worth, it is not, it is just a figure that I am suggesting that you have 10 minutes to think about as a commercial way to walk out the chance that I may be higher in your favour (Ms Liu's) or I may go lower in your favour (AWPM's), it's just a figure, it doesn't provide any assessment of who is right and who is wrong. Yeah, what I'm going to suggest that I will go out of the room for 10 minutes and I say the following figure, which I will give to you in a sec, I stress again, it does not indicate that I have reach that figure, it does not indicate that when I've looked the reasons and arguments more closely and considered them all, that I come to a lower figure or higher figure, but it's just a figure to allow you 10 minutes to lock out the uncertainty that she may get more or he may have to pay less, ok?" 1. Section 37 of the NCAT Act states: '(1) The Tribunal may, where it considers it appropriate, use (or require parties to proceedings to use) any one or more resolution processes. (2) A resolution process is any process (including, for example, alternative dispute resolution) in which parties to proceedings are assisted to resolve or narrow the issues between them in the proceedings.' 1. We find that the Tribunal Member was proceeding in accordance with s37 of the NCAT Act when he encouraged the parties to negotiate a settlement and in so doing suggested a figure around which they might negotiate. We reject any suggestion by the appellant that because the Tribunal Member did not mention the possibility that her case might be dismissed, the decision was not fair and equitable. The parties were clearly told that what the Tribunal Member said would not indicate at all the decision that would be reached after he had gone back over the evidence and considered what the parties had said during the hearing. 2. We also reject the appellant's ground for asserting that the decision was not fair and equitable because the Tribunal Member's decision was based on a wrong assumption, namely that she was asking the for reimbursement of the whole cost of the concrete encasement work for the Sydney Water assets. As referred to at [24] and [25], the Tribunal Member understood the appellant's case. We reject the appellant's submission that the Tribunal misunderstood her case or proceeded on a wrong assumption. The Tribunal Member found that the price the appellant paid for the additional or extra work was a reasonable price and one arrived at after competitive bidding between the respondent and her plumber. On that basis the Tribunal found that he would not place the quote obtained by the appellant after the work had been completed, over what had actually occurred. 3. The appellant also seeks leave to appeal the decision on the basis that the Tribunal Member incorrectly assumed that she contracted to have the work done because she thought she was given a reasonable price for the work. It is asserted that this was a wrong assumption because the appellant asserts that she paid the to have the work done at the price found, because she had no choice, not because she considered the price to be reasonable. 4. The Tribunal Member found that there was no evidence that in paying for the additional work necessitated by the respondent's error, the appellant 'had to pay a premium for urgency'. We have not been referred to any evidence given at the hearing which would establish that the finding referred to was contradicted by the evidence, or was against the weight of the evidence. 5. For the reasons we have provided, we refuse leave to appeal and dismiss the appeal. Order (1) Leave to appeal refused. (2) Appeal dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2024