Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AHA International Pty Ltd v De Sen He and Yuan Fei He [2015] NSWCATAP 47 Hearing dates: 4 February 2015 Date of orders: 23 March 2015 Decision date: 23 March 2015 Jurisdiction: Appeal Panel Before: D Robinson, Principal Member S Thode, Senior Member Decision: The name of the Appellant is amended to AHA International Pty Ltd; Leave to appeal is refused; The Appeal is dismissed. Catchwords: HOME BUILDING – breach of contract –leave to appeal. Legislation Cited: Civil and Administrative Tribunal Act 2013. Texts Cited: Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: AHA International Pty Ltd (Appellant) De Sen He and Yuan Fei He (Respondents) Representation: Mr Lin appeared in his capacity as director of the Appellant and was assisted by a Mandarin interpreter Mr He appeared in person assisted by a Cantonese interpreter File Number(s): AP 14/49195 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 09 September 2014 Before: M Eftimiou, General Member File Number(s): GEN 14/36192 REASONS FOR DECISION Introduction 1. The respondents needed to have electrical work done at their home. They contracted with Mr Ding to do that work but he did not do it all himself. Mr Lin is a licensed electrician and the director of the Appellant company. He was retained to install an electrical meter box at the respondents' home. 2. On 9 September 2014, the Tribunal's Consumer and Commercial Division awarded $1350 against two respondents jointly, Mr Ding and the Appellant, on the basis that the work was not performed in a proper and workmanlike manner. 3. Only the second respondent appealed that decision. The homeowner informed the Appeal Panel that the first respondent has paid $675 in discharge of half of the judgment debt. The decision under appeal 1. The Tribunal published its written reasons for decision on 9 September 2014. The respondent (the homeowners) and Mr Ding were present at the hearing. Mr Lin, in his capacity as the director of the Appellant company, did not attend the hearing. 2. The relevant findings are contained at page two of the Tribunal's decision: "In January 2014 the applicants entered into an oral agreement with the first respondent for him to carry out electrical works at their residential premises. The applicants are owner/builders. The first respondent did not hold the required electrical licence to carry out external work and he subcontracted to the second respondent to carry out some of the electrical work…. An amount of $1350 was paid to the respondents for the work. AUSGRID provided a Defects Notice to the applicants in relation to the electrical work. A dispute then arose between the parties as to who was responsible for the work and who was responsible to rectify the defects in the notice. On 1 June 2014 the applicants engaged a licensed electrician to rectify the defects. The cost of rectification was $1400. The Tribunal finds on the evidence before it that the Home Building work undertaken by the respondents has not been completed in a proper and workmanlike manner. The Tribunal is satisfied that it has cost the applicants $1400 to rectify the defects. Accordingly, the Tribunal makes an order that the respondents refund to the applicants the amount paid for the work being $1350." Legislation and jurisdiction 1. The Appellant may appeal on a question of law but must seek the appeal panel's leave to appeal "on any other grounds" (see s80 (2)(b) of the Civil and Administrative Tribunal Act 2013 (the Act)). 2. When considering applications for leave to appeal from such decisions the Appeal Panel is required to be satisfied of the matters set in clause 12 of schedule 4 of the Act. That clause relevantly provides that the Appeal Panel may grant leave only in limited circumstances, if: (a)The decision of the Tribunal was not fair and equitable, or (b)The decision of the Tribunal under appeal was against the weight of the 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. An appeal by leave may only succeed if the Appellant can establish that he may have suffered a substantial miscarriage of justice. The Appeal Panel recently considered the concept of substantial injustice in the decision of Collins v Urban [2014] NSWCATAP 17 at [79]: "In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]." The Notice of Appeal 1. By Notice of Appeal dated 15 July 2014 the Appellant seeks leave to appeal from the Tribunal's decision. The appeal was erroneously filed by the director of the Appellant company in his personal capacity. At the hearing the Appeal Panel ordered that the Appellant's name be amended to AHA International Pty Ltd. 2. The Notice of Appeal form, signed by the Appellant's director, did not raise any question of law. The ground of appeal raised by the Appellant in his Notice of Appeal was that "The respondent did not provide any contract and witness about the issue of AHA International. I lodged to complain AUSGRID INSPECTOR CIN 200762756 on 4 September 2014 about providing false inspection report and serious safety issues. There is still no response till now. My job is to provide AUSGRID Meter to 22 Morrison Rd Gladesville only". 1. The main contention of the Appellant was that the decision was not fair and equitable: "I sent Email to NCAT on 7.13am on 29 August 2014 for extension of the hearing before the deadline not on 5 September 2014; On 5 September I sent email to NCAT about my statement and forwarded extension email again; I didn't get the letter of hearing so I miss the hearing". 1. In the section "Decision of the Tribunal was against the weight of the evidence" the Appellant declares the following: Answer: 1. The Tribunal Member didn't check my email on August 29 and 5th September carefully. 2. The Tribunal Member didn't check the respondent's contract (there is not business and any matter about this case.) In the response to the question on the Notice of Appeal "what evidence did the other party give? What documents did the other party show the Tribunal?" the Appellant answered "No evidence about this case. Some evidences about something else." In response to the question "what decision do you think the Tribunal should have made given the evidence/documents presented at the original hearing" the Appellant responds: Because I didn't get the letter of hearing the first respondent did not want to attend the hearing. Question of Law 1. Although not specifically raised by the Appellant, we must consider whether questions of law arise on the appeal. 2. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 recently considered the requirements for establishing an "error of law" giving rise to an appeal as of right. The Appeal Panel at para 11-12 said 11 As noted above, an appeal to the Appeal Panel lies as a matter of right on a question of law. The notice of appeal does not articulate in express terms any question of law. It is necessary that a question of law be stated with precision, as an Appellant's right to appeal arises from the question of law. Additionally, the question of law is the subject matter of the appeal: see for instance Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50]; in relation to appeals to the Federal Court of Australia, from the Administrative Appeals Tribunal, which lie only on "questions of law"; and Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [35] in relation to s 67 of the Consumer, Trader and Tenancy Tribunal Act (2001) (NSW) where appeals to the District Court lay only where that Tribunal had decided a question with respect to a matter of law. 12 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. The Notice of Appeal did not articulate any question of law. What constitutes a question of law was discussed by the Appeal Panel in Prendergast. Without listing exhaustively possible questions of law, the Appeal Panel in Prendergast cited the following at [13]: 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 this appeal the Appellant was not legally represented and the Notice of Appeal did not set out any error of law. However, in oral submissions the applicant complained that he was told at the first directions hearing that the matter would not be listed for hearing until all the evidence was filed. He stated in an email to the Registrar dated 29 August 2014 and 5 September 2014 that he needed an extension of time to file his documents as he was still waiting for AUSGRID documents. He received no response to these emails. He submits the correspondence should have been considered and an extension of time to file documents should have been granted. 2. The standard direction of the Tribunal is to afford each party reasonable time to file its evidence and after expiration of that time the matter is listed for hearing. There is nothing before the Appeal Panel to suggest that the Registry deviated from this course or that some undertaking was given to the Appellant. The Appeal Panel is not satisfied that the failure to provide further time to file documents constituted an error of law. 3. The Appellant tendered the 29 August 2014 and 5 September 2014 emails. The 5 September email states "we only provide the electronic meter nothing to do with installation work". The document does not seek an extension of time or adjournment. The 29 August email states "because AUSGRID delay to provide the referred info about this case. Please let me extend one week about the document". The Hearing was not listed until 9 September 2014 and although the Appellant received no response to his email, the Appeal Panel is not satisfied that there has been a denial of procedural fairness. 4. The Appellant claims he did not receive the Notice of Hearing. In light of the fact that notices were sent to the registered address and principal place of business of the company, and were not returned, the Appeal Panel is not satisfied that the Tribunal fell into error when it concluded that "the Tribunal is satisfied on the evidence before it that the respondents have received a notice of hearing." The Tribunal determined the hearing should proceed as the "applicants should not be disadvantaged by the respondent's failure to attend." As the Tribunal had found that service on the company had been effected it was entitled to proceed to hearing and an error of law or denial of procedural fairness has not been established. Notice of Reply 1. On 28 October 2014 the respondent filed a Reply to Appeal attaching typed grounds of reply, attaching the AUSGRID Defects Notice 153535 stating: "the new meter box and switch board was not secured in position onto the pole at the front of the building block." Appeal by leave "on other grounds" Decision not "fair and equitable" 1. We now turn to whether leave to appeal can be granted 'on other grounds'.. The requirements of the Act are set out in s 80(2), which states that in relation to any decision other than a first instance interlocutory decision, an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel on any other grounds and in limited circumstances as set out in paragraph 9 above. 2. The Appellant states that the Registry's failure to allow more time to file documents led to an unfair and inequitable outcome. This ground of appeal was addressed at paragraphs 16 and 17 above. For the reasons set out above the Appeal Panel is not satisfied that a ground for leave to appeal has been established. Against the weight of the evidence 1. The Appellant states that the finding was against the weight of the evidence but also stated to the Appeal Panel "that if the meter is the problem then I admit responsibility". The Tribunal found that the Appellant was responsible for external electrical work. The defects notice of AUSGRID clearly supports a finding that the meter box was installed defectively. The Tribunal was entitled to take the inspection defect notice into account in accordance with section 48N of the Home Building Act 1989 and admitted it into evidence. 2. In circumstances where the Tribunal had the sworn evidence of the first respondent that the second respondent installed the meter box, and an inspection report from AUSGRID, it cannot be said that the findings about the liability of the Appellant or the nature of the defective work were against the weight of the evidence. Evidence not reasonably available 1. The appellant stated that an email of 4 April 2014 was not reasonably available at the time the proceedings were completed. However, the email supports the homeowners' claim that the meter box was defective. It states that AUSGRID disconnected the building services because paperwork supporting the new connection was not submitted or had been incorrectly filled in. The AUSGRID correspondence is addressed to the Appellant company as it performed the work. An email attaching the defect notice was sent from the homeowner to the Appellant. It is unclear how this email assists the Appellant's case. The homeowner stated that this email was tendered at the hearing below and that it was available to the Tribunal at first instance. The Appellant has not explained why this email has only now been provided or why he alleges it was not reasonable available at the time the proceedings were completed. It was tendered. 2. The legislation provides for leave to be granted where there may be a substantial injustice because significant new evidence has arisen that was not reasonably available at the time the proceedings under appeal were being dealt with. The evidence to which Mr Lin refers was reasonably available and does not assist the Appellant's case. 3. There is no evidence before the Tribunal that the evidence could not have been obtained and leave is refused for AHA International on grounds other than questions of law. Conclusion 1. We do not accept that the Tribunal fell into error when it considered the AUSGRID notice and concluded that the meter box was not installed correctly. 2. The Tribunal did take into account the uncontested sworn evidence before it and concluded that the Appellant was liable for the external meter box and its faulty installation. 3. The Tribunal was entitled to proceed to hearing once it was satisfied that the company had been duly served on its registered address and principal place of business. 4. The Appellant did not adduce any evidence that may have persuaded the Appeal Panel to arrive at a finding that the Tribunal findings and orders amounted to a substantial miscarriage of justice. 5. The application for leave to appeal, and the appeal itself, must therefore be 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: 23 March 2015