Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Daley v Flynn [2014] NSWCATAP 79 Hearing dates: 25 September 2014 Decision date: 06 November 2014 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President D Patten, Principal Member Decision: 1. The application for leave to appeal is upheld. 2. The appeal is upheld. 3. The proceedings are remitted to the Consumer and Commercial Division for rehearing. Catchwords: Appeal - Civil and Administrative Tribunal (NSW) Legislation Cited: Consumer Trader and Tenancy Tribunal Act NSW (2001) (the CTTT Act) Civil and Administrative Tribunal Act NSW (2013) (the Act) Cases Cited: Collins v Urban [2014] NSWCTAP 17 Category: Principal judgment Parties: Brian Daly (appellant) Karen Flynn (respondent) File Number(s): AP 14/46415 Publication restriction: nil Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-05-02 00:00:00 Before: D Charles File Number(s): HB 13/58271 reasons for decision Background 1This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal made on 2 May 2014. That decision dismissed the appellant's application to set aside an earlier decision of the Tribunal made on 27 February 2014. The earlier decision of 27 February 2014 resulted in an order that the appellant pay to the respondent the sum of $7,378.90. 2Unfortunately, these proceedings have some protracted history and it is necessary to explain what led up to the decision of 2 May 2014. 3The respondent to this appeal, who is the homeowner, contends that she engaged the appellant to undertake some refurbishment work at her home. The respondent was dissatisfied with that work and commenced proceedings in the Tribunal's predecessor against the appellant in 2013. Those proceedings were heard in October 2013 in the absence of the appellant. The appellant applied for a rehearing and the former Tribunal granted a rehearing by an order made on 11 November 2013. The proceedings thus far described all occurred in the Consumer, Trader and Tenancy Tribunal which was abolished on 1 January 2014. Its jurisdiction was taken over by this Tribunal. 4As a result of the order made on 11 November 2013, this Tribunal heard the proceedings on 27 February 2014. Those proceedings were heard in the absence of the respondent. 5The relevant parts of the reasons for the decision made by the Tribunal on 27 February 2014 are as follows: The applicant seeks an order that the respondent pay her compensation for the cost of rectifying work on her bathroom, carried out by the respondent pursuant to an oral agreement in late 2010. The work was completed in early 2011. The applicant relies upon a folder of documents filed in proceedings HB 13/31061, and a report of Sherlock Holmes Inspection. In the absence of the respondent, the Tribunal also had regard to the respondent's expert report. The applicant gave evidence that she engaged the respondent to undertake and coordinate the bathroom renovation. The estimate which he gave to the applicant confirmed the respondent undertook the coordination of the tiling, waterproofing, lining of walls and plumbing. The applicants states that she paid the respondent in accordance with the quotation. Sometime later she noticed that water was pooling in the corner of the bathroom. The respondent denied that it was any part of his work which was defective. However, both expert reports confirm that the leaking is caused by a failure to provide a water stop. In addition, the applicant's expert has identified the need to replace the particle board flooring which has been damaged by the leaking. Both experts note that the floor has inadequate fall, contributing to the issues, and the applicant's expert identifies a breach of the water proof membrane. The Tribunal accepts the evidence of the applicant's expert. The more extensive scope of works is accepted as being necessary. The Tribunal does not accept the respondent's expert statement that the fall on the water was not part of the contract. The work done must result in a floor which is fit for purpose, and accordingly the respondent was required to correct any inadequacy as an essential part of the contract works. 6The appellant filed an application in March 2014 seeking a rehearing of the hearing which had occurred on 27 February 2014. The application was expressed as an application under the CTTT Act for a rehearing under section 68 of that Act. As the Act had been repealed and the Tribunal abolished, this Tribunal treated the application as an application to set aside the orders made on 27 February 2014. Directions were made for the filing and service of evidence and that application came before the Tribunal for hearing on 2 May 2014. Both the appellant and the respondent were present at that hearing. 7The Tribunal delivered its decision on the same day (2 May 2014) and made an order that the application to set aside the orders made on 27 February 2014 be dismissed. There was a further order that the order made on 27 February 2014 remains in full force and effect. Those parts of the reasons for the decision that are relevant to this appeal are set out as follows: The Tribunal is not satisfied that the absence of the applicant at the hearing on 27 February 2014 resulted in a lack of procedural fairness to the applicant. Other than the applicant's further timeline of events (received by the Registry on 26 March 2014), the presiding member had before her all of the applicant's documents including the report of Mr Rosa and it is tolerably clear that she had regard to Mr Rosa's report in making her determination. Her reasons state, relevantly: "The Tribunal accepts the evidence of the applicant's (the homeowners) expert. The more extensive scope of works is accepted as being necessary. The Tribunal does not accept the respondent's (Mr Daley's) expert statement that the fall on the floor was not part of the contract. The work done must result in a floor which is fit for purpose and according (sic) the respondent was required to correct any inadequacy as an essential part of the contract works." 8The Tribunal then went on to say: "Although the order made on 27 February 2014 was made in the absence of Mr Daley the Tribunal is not satisfied that Mr Daley's case was not adequately put to the Tribunal on that occasion. The findings set out above are sufficient to dispose of the application by dismissal. However, if the Tribunal had decided issue (a) differently and set aside the order the order of 27 February 2014, the Tribunal is satisfied on the basis of the evidence it heard today that the homeowner Ms Flynn (the respondent on this application) has successfully made out a case for a money order..." [Issue (a) was whether the order made on 27 February 2014 should be set aside] 9And the Tribunal continued: "The Tribunal accepts Ms Flynn's evidence. It finds that there was a contract between the parties other than for the limited purpose (on Mr Daley's case) of plumbing work in the bathroom of Ms Flynn's residence. The Tribunal finds the contract between the parties also covered Mr Daley arranging for and supervising the work of trades persons such as tilers and water-proofers. The Tribunal is satisfied that the works carried out in the bathroom under Mr Daley's supervision were defective and non-compliant with the Building Code of Australia. In this regard, both experts concur." Notice of Appeal and Appellant's Contentions 10The notice of appeal stated the following grounds of appeal: (1)I was denied a proper hearing (2)I was not paid for tiling-waterproofing-painter. And did not supervise them. (3)The other party has admitted the estimate was a guide for her only. (4)The other party has no receipt for other trades and does not want to supply them (5)The other party shows a bank state (sic) only with $5000 withdraw but said she paid me more than $10,000. (6)I was not paid to supervise other trade. I only introduced them. 11The appellant filed a number of documents in accordance with the directions of the Appeal Panel. These included a statement which purported to explain the appellant's involvement in the contract he had entered into with the respondent. At the hearing of the appeal the appellant was asked to explain the nature of the contract which he contended that he had entered into with the respondent. He said that he had an oral contract with the respondent by which he was to strip the bathroom at the respondent's home and undertake some plumbing works. He was also to install a toilet, taps and vanities. He said that he provided to the respondent a document which contains the heading "B Daly Plumbing" and which sets out an estimate of work to be undertaken to the respondent's premises. It is document 8 being a document bearing the number 0257 and it contains, according to the appellant, a description of work to be undertaken, and a total estimate of the costs of the work namely $10,257.50 (inclusive of GST). He stated that that document was provided to the respondent to assist her to obtain bank finance but did not constitute a quotation or contract between him and the respondent. Rather the contract made between the parties was an oral contract. 12The appellant went on to assert at the appeal hearing that he only rendered two invoices, the first being an invoice for $900 (0159 ) and the second being an invoice $450 (160) for the work which he undertook. He said that he was not licensed to do the other work which the respondent had caused to be undertaken to her bathroom, but that he had introduced a number of tradesmen to undertake that work. There were three tradesmen being a waterproofer, a tiler named Mark and a painter named Jess. He had retained no contact details for Mark or for Jess. 13The appellant asserted that he did not supervise any of the tradespeople. He did speak to them to indicate where the work was to be undertaken but did nothing further. Respondent's submissions 14The respondent has provided to the Tribunal submissions under cover of a letter dated 8 September 2014 which the respondent supplemented orally at the hearing. The respondent's position was that she needed an estimate of the cost of the proposed work in order to obtain a bank loan. She agrees with the appellant that the appellant supplied such an estimate being the document referred to earlier bearing number 0257. The respondent said that the appellant agreed that he would organise and supervise tradespeople other than the electrician (because the respondent had her own electrician). She agreed that the contract between her and the appellant was an oral agreement. 15The respondent said that the tradespeople came and undertook the work. She did not know who they were and did not pay them. Rather, she received requests for cash from the appellant for the purposes of enabling him to pay the tradespeople. She gave cash to the appellant and understood that the appellant would pay the tradespeople. She claims to have paid the appellant the sum referred to in document 0257 namely $10,257.50 by approximately two to three instalments. 16The respondent stated that when problems emerged with respect to the bathroom she had the appellant return and he attempted to fix the problems unsuccessfully. 17The respondent stated that the appellant was not telling the truth when he said that he had not paid the tradespeople. She pointed to a letter she had obtained from the tiler, Mr Steve Russell, in which Mr Russell stated that he had completed the installation of the membrane at the respondents property. The letter states that he was contacted to "quote and complete the work by Mr Brian Daley". He also wrote that on completion of the work he was paid in full by the appellant personally and that the appellant had instructed him to issue an invoice to the respondent. The appellant agreed he had paid Mr Russell with cash provided by the respondent. 18The respondent stated that she understand that the appellant was supervising the work of the tradespeople. The words she used at the appeal hearing was that the appellant was "overseeing the job". The Appeals panel decision 19The appellant asserts five grounds of appeal. The first is that he was denied a proper hearing. This ground has no basis as there was a hearing at which the appellant was present on 2 May 2014 and it is evident that the Tribunal took evidence from both appellant and respondent and considered their respective documentary evidence. The other five grounds of appeal are assertions concerning factual matters and none identifies a ground of appeal which would constitute a question of law. 20The Act sets out the basis upon which appeals from decisions of the Consumer and Commercial Division may arise under section 80 of the Act. That section states that an appeal may be made as of right on any question of law (s80(2)(b)) or with leave of the appeal panel on any other grounds (s80(2)(b)). Schedule 4, clause 12 of the Act says that an appeal panel may grant leave 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). 21In the notice of appeal the appellant seeks leave to appeal on the basis that the decision made on 27 February was not fair and equitable as he was not present and did not receive notice of the hearings. The difficulty for the appellant is that the decision on 27 February 2014 is not the decision on which this appeal is based. This appeal is an appeal from the decision made on 2 May 2014 and the appellant does not assert that that decision was not fair and equitable. However, the appeal panel will consider the appeal on the ground that it seeks to assert that the decision of 2 May 2014 was not fair and equitable or against the weight of evidence. 22The appeal panel is concerned as to whether the central issue between the parties was adequately addressed on 2 May 2014. In the opinion of the appeal panel the central issue between the parties was the terms of the contract between the appellant and the respondent and, in particular, the scope of the responsibilities which the appellant agreed to undertake. The appellant asserts that that scope did not include supervision of the work of the waterproofer, tiler or painter. On the other hand, the respondent asserts that the scope of responsibility agreed to by the appellant did include agreeing to supervise that work. 23Before considering the decision of 2 May 2014 it is necessary to refer to the earlier decision. The decision of the Tribunal on 27 February 2014 does not contain a finding that the Tribunal accepted the evidence of the respondent that she engaged the appellant to undertake and supervise the bathroom renovation as asserted by the respondent. 24The decision of 27 February 2014 states that the applicant claimed she paid the respondent in accordance with the quotation. However both parties informed the appeal panel there was no quotation. There was an estimate prepared for the purpose of raising finance but not a quotation. 25In the opinion of the appeal panel the decision of 27 February 2014 treats the estimate as a quotation and therefore as evidence of the contract between the parties. Because both parties do not in fact contend that the estimate was the contract or evidence of the contract between them that decision cannot be described as one which reflects that the appellant's case was adequately put to the Tribunal. The decision of 2 May 2014 concludes the opposite, namely that the Tribunal was not satisfied that the appellants case was not adequately put to the Tribunal. 26The decision on 2 May essentially draws two conclusions. The first is that the Tribunal was not satisfied that the appellant's case was not adequately put to the Tribunal on 27 February 2014. The appeal panel has already commented on that conclusion. The second conclusion was that there was a contract between the parties other than for the limited purpose of plumbing work in the bathroom and that the contract also covered the appellant arranging for and supervising the work of tradespeople such as tilers and waterproofers. 27The decision of 2 May 2014 does not identify the evidence upon which the finding is made as to the terms of the agreement. However, because the decision effectively states that the appellant's case was adequately put to the Tribunal on 27 February 2014 it must be assumed that the decision of 2 May 2014 also relied on the estimate as evidence of the agreement between the parties. 28In view of what the parties contend as to the status of the estimate the appeal panel is not satisfied that the decision of 2 May 2014 was open to the Tribunal in so far as it purported to say that the appellant's case was adequately put to the Tribunal on 27 February 2014. 29For the above reasons the appeal panel is of the view that the decision of 2 May 2014 was not fair and equitable. Accordingly, the appropriate course is to give leave to the appellant to appeal, to uphold the appeal and order a rehearing. This result may seem harsh to the respondent who has been successful before the Tribunal on three occasions. Nevertheless, given the appeal panels analysis of the decision of 2 May 2014 the appropriate course is, as stated, to order a rehearing. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ******** 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: 06 November 2014