Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kandemir Investments Pty Ltd v Haefli [2015] NSWCATAP 7 Hearing dates: On the papers Date of orders: 10 February 2015 Decision date: 10 February 2015 Jurisdiction: Appeal Panel Before: D Patten, Principal Member R Titterton, Principal member Decision: Extension of time in which to commence the appeal allowed Appeal allowed, and the orders made below quashed. Remit the matter to the Tribunal constituted by a member other than the member who made the original decision, to be determined in accordance with these reasons and otherwise according to law Catchwords: Appeal - Civil and Administrative Tribunal (NSW) Extension of time - principles Submissions - inappropriateness of intemperate or colourful language Errors of law re admissibility of evidence Errors of law calculation of damages Legislation Cited: Civil and Administrative Tribunal Act NSW (2013) Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Kandemir Investments Pty Ltd t/as Automotive Hospital (Appellant) Lorenz Haefli (Respondent) File Number(s): AP 14/46536 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Civil and Consumer Division Citation: Not applicable Date of Decision: 23 May 2014 Before: N Correy File Number(s): MV 14/03291 reasons for decision Introduction 1. In this matter the appellant seeks to appeal from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) of 23 May 2014. 2. The appellant supplies vehicle pre-purchase inspections and other services for motor vehicles in the Sydney metropolitan, inner west and eastern suburbs, and has done so for over 20 years. 3. In August 2012 the appellant agreed to carry out a pre-purchase inspection on a motor vehicle which the respondent proposed to purchase. It is common ground that the appellant carried out a visual inspection and a diagnostic scan of the motor vehicle. Relying on the pre-purchase inspection report the respondent purchased the motor vehicle, but later decided to sell it because of a number of mechanical failures. When he went to sell the motor vehicle a prospective purchaser carried out a pre-history check, which revealed that the motor vehicle had previously been written off. 4. The respondent claimed that the appellant breached the contract in failing to ascertain and disclose the true history of the vehicle. The Tribunal accepted this, and also accepted that the respondent eventually sold the motor vehicle for $18,000. It assessed the respondent's loss as being the difference between the sale price and the notional market value of a similar vehicle at the time of sale. 5. The Tribunal found that the true value of the vehicle was between $18,000 and $41,000 and ordered the appellant to pay the respondent the sum of $11,500 immediately. 6. This is a matter in which the appellant has filed his appeal out of time, and requires the Appeal Panel to extend the time for the making of the appeal. The appeal was filed on 22 August 2014, while the decision appealed from was made on 23 May 2014. Unless the Tribunal grants an extension of time under s.41 of the Civil and Administrative Tribunal Act 2013 (the Act), appeals in respect of proceedings (other than residential proceedings) must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later): see regulation 25(4)(c) of the Civil and Administrative Tribunal Rules 2014. 7. The respondent objects to the appeal being lodged out of time. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel considered the principles which govern the granting of an extension of time. The Appeal Panel stated at [22] that generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider the length of the delay, the reason for the delay, the appellant's prospects of success (that is usually whether the applicant has a fairly arguable case); and the extent of any prejudice suffered by the respondent (to the appeal). We shall consider each factor in turn. 8. The length of the delay; the reason for the delay. These factors can be considered together. As noted above the decision appealed from was made on 23 May 2014 and the appeal was lodged on 22 August 2014. Accordingly the appeal has been lodged approximately two months' out of time. No explanation has been given by the appellant for the delay. The respondent notes in his Reply, section 13 of the notice of appeal requires the appellant to explain why the appeal was not filed within time. The appellant has stated "if this application is not heard/read, it is a gross miscarriage of justice". As the respondent submits, this is clearly not a valid reason for the delay. The absence of any explanation at all by the appellant militates against the grant of an extension of time. We are of the view that, where 28 days is allowed in which to file an internal appeal, a delay of approximately two months weighs towards an extension of time not being granted. 9. Prejudice to the respondent Neither party addressed the question of prejudice to the respondent. We note that as the Tribunal granted a stay of the order of 23 May 2014 on condition that if the appeal was unsuccessful the appellant was liable to pay interest on the $11,500 ordered to be paid. While prejudice in the sense of strain and time can never be entirely eliminated, we are satisfied that any prejudice to be suffered by the respondent would be minimal. This is a neutral matter in determining whether or not to extend time. 10. Appellant's prospects of success The most important matter when considering whether or not to extend the time in which to lodge an appeal is an appellant's prospects of success on appeal. The appellant's grounds of appeal appearing in its notice of appeal were as follows: 1. Evidence provide by respondent. Insufficient & did not meet the standard set by CTTT/NCAT. 2. Respondent provided verbal evidence within hearing which arbitrator accepted – but respondent lied. 3. Verbal evidence provided by respondent was not contained within provided by respondent to Tribunal – but accepted. 4. Evidence provided by applicant – re website was not accepted – even though we could not provide earlier. 5. Arbitrator awarded payment without a true commercial value. 1. These grounds were amplified in the appellant's written submissions. The principal issue in this case concerned the terms of the contract between the parties and, in particular, whether the appellant was obliged to conduct an enquiry into the history of the vehicle, apparently known as a REVS check. 2. It was the appellant's case that it would have made a REVS check if requested at an additional cost of $35, the check itself having to be made by an external provider. It was also the appellant's case that Mr Kandemir specifically directed the attention of Mr Haefeli to the availability of the option but Mr Haefeli declined to avail himself of it. 3. Although we do not have a transcript of the hearing below it appears that the respondent's case was a denial that Mr Kandemir raised the availability of the REVS check as an additional option and a reliance upon the appellant's website which from the version attached to our papers under the heading "pre Purchase Check List" contained the statement: "REVS Check REVS Check for added peace of mind for vehicle write-off & financial interests that may be recorded" 1. At the hearing the appellant sought to establish that on a "drop down box" on the website there was the further statement: "At an additional cost upon request we can perform a REVS check." The learned Tribunal member declined to allow this evidence to be adduced on the basis that it had not been served in compliance with previous directions. 1. The Tribunal dealt with the factual issue in its reasons as follows: "Both parties have given evidence in a frank and open fashion and it is conceivable that memories can fade in an almost two-year period. The evidence however is diametrically opposed and acceptance of one witnesses version amounts to rejection of the other. Having considered all the evidence I find it is more probable than not that [the respondent] would have chosen to have a prehistory check carried out in addition had it been brought to his attention as being a relevant as he was buying an expensive car and he chose to have the additional scan done $120 four times the price of the prehistory check suggests cost was not a bar. I am satisfied that the respondent held out on the front page of the website that the REVS check was included even though the finer detail in the drop down box (not in evidence brackets may have painted a different picture if one could read the small print. On that basis I find the applicant has [established] the breach alleged. 1. Although it may be that the drop-down box quoted above was not part of the appellant's website at the time of the making of the contract, we think it was a wrongful exercise of judicial discretion to refuse to allow the appellant to reduce evidence of the full contents of a document on part of which the respondent relied. Although consideration of the whole document may not have changed the result, in our view the decision to reject the evidence was in the circumstances not fair and equitable and amounted to a substantial miscarriage of justice. Incidentally, we note that the appellant's report to the respondent patently omitted to refer to a REVS check. 2. There was also in our view an error of law in the approach of the Tribunal to the assessment of damages. The Tribunal upon its finding of a breach of contract was obliged to make findings as to the damages consequent upon such a breach. This in terms it omitted to do. If it found that the respondent, if informed that the car had previously been written off would not have proceeded with the purchase, the damages would be calculated by reference to the difference between the value of the car at the time with a history of being written off and the value of the car without such a history. There was as we understand it no evidence as to these matters and the Tribunal was not entitled to speculate as it did by reference to a sale price a considerable period afterwards. 3. The Act sets out the basis upon which appeals from decisions of the Consumer and Commercial Division of the Tribunal can be made. Under s80 of the Act 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)). 4. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered the requirements for establishing an "error of law" giving rise to an appeal as of right. The Appeal Panel stated at [12] that 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, and that 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. 5. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast referred at [13] to the following as constituting errors of law: 1. Whether there has been a failure to provide proper reasons. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law has been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account a relevant (mandatory) consideration. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision was so unreasonable that no reasonable decision-maker would have made it. 1. In our view, the failure of the Tribunal to refuse to allow the appellant to adduce evidence of the full contents of the website, and the failure to make findings as to the damages consequent upon the breach of contract by reference to admissible evidence, were errors of law. 2. In our view these errors of law are sufficiently significant to warrant the grant of an extension of time to appeal and as a consequence, we have reached the conclusion that in the interests of justice there should be a rehearing of the matter at first instance. In the circumstances we consider that the appropriate course is to set aside the decision of the Tribunal and to remit the matter to a differently constituted Tribunal for rehearing. A directions hearing should be held to deal with issues of the evidence to be relied on at the rehearing. 3. There is one final matter. We note that the appellant made a number of submissions containing personal criticisms of both the member constituting the Tribunal and of the respondent. These submissions are expressed in intemperate and exaggerated language. A party's submissions are never assisted by such language. To describe a Tribunal decision maker's reasoning as "garbled", or to comment on the decision maker's age, to state their comprehension of English as "incompetent", or to submit that they displayed "contempt" towards a party, is unhelpful and inappropriate. Nor it is appropriate to accuse another party of lying or committing perjury. No doubt the language employed by the appellant reflects Mr Kandemir's frustration, but the language is not appropriate in the processes of the NSW Civil and Administrative Tribunal. Orders 1. For these reasons, the Appeal Panel makes the following orders: 1. The time in which the notice of appeal is to be lodged is extended to 22 August 2014. 2. The appeal is allowed, and the orders made below quashed. 3. Remit the matter to the Consumer and Commercial division of the Civil and Administrative Tribunal constituted by a member other than the member who made the original decision, to be determined in accordance with these reasons and otherwise according to law. ******** 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. 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