Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Aavelaid v J.A. Hayek t/as Laing & Simmons [2015] NSWCATAP 130 Hearing dates: 22 April and 23 May 2015 Date of orders: 03 July 2015 Decision date: 03 July 2015 Jurisdiction: Appeal Panel Before: The Hon DA Cowdroy OAM QC, Principal Member Ms K Rosser, Senior Member Decision: 1. The proceedings are remitted to the Tribunal as originally constituted to make findings and give reasons in relation to the following issues: (i) the period during which the unit was not advertised on the internet in September 2013; (ii) whether any fraudulent conduct exists with regard to screen shots of internet advertisements for the unit given to the Appellant in September 2013; (iii) whether, arising from the findings made in respect of (i) and (ii) above, the Appellant is entitled to additional damages and if so, the quantum of any additional damages and (iv) whether the reasons for decision dated 11 December 2014 should be amended under s 63(3) of the Civil and Administrative Tribunal Act 2013 to correct the reference in [41] of the reasons for decision to "the short period of two weeks from 17 July 2013 to 16 August 2013" and if so, to make the relevant amendment. (2) Prior to determining the issues referred to in order (1) above, the Tribunal is to consider: (i) whether further evidence and/or submissions from the parties in relation to the relevant issues is required and (ii) whether a hearing can be dispensed with in accordance with s 50(2) and (3) of the Civil and Administrative Tribunal Act 2013 and may make directions accordingly. (3) The appeal is otherwise dismissed. (4) The parties are to pay their own costs. Catchwords: APPEAL: Error of law; adequacy of reasons; procedure of Tribunal Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Rules 2014 Consumer Claims Act 1998 Cases Cited: Derry v Peek (1889) 14 App Cas 337 Crown v McNeil (1922) 31 CLR 76 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Collins v Urban [2014] NSWCATAP 17 House v R [1936] HCA 40; 55 ALR 499 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 Minister for Immigration and Citizenship v SZMDS [12010] HCA 16; 240 CLR 611 Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Brown v Dunn (1894) 6 The Reports 67 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Sydney Supermarkets Pty Ltd v Xu [2009] NSWADTAP 28 Carlson v King (1947) 64 WN(NSW) 65 Wainohu v New South Wales (2011) 243 CLR 181 Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33 The State of Queensland v J. L. Holdings Pty Ltd (1997) 189 CLR 146 Aon Risk Services Pty Ltd v Australia National University (2009) 239 CLR 175 Category: Principal judgment Parties: Urmas Aavelaid – Appellant J.A Hayek Holdings Pty Ltd t/as Laing & Simmons - Respondent Representation: Appellant – Self-represented Respondent – Ms Mahony File Number(s): Gen 13/54539 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 11 December 2014 Before: T Simon, Tribunal Member File Number(s): Gen 13/54539 reasons for decision Introduction 1. By Notice of Amended Appeal filed on 9 January 2015, the Appellant, who was the applicant in the proceedings below, appeals a decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal (the Tribunal) delivered on 11 December 2014 and notified to the Appellant on 15 December 2014. 2. The application determined by the Tribunal was an application filed in the then Consumer Trader and Tenancy Tribunal and determined pursuant to transitional provisions contained in the Civil and Administrative Tribunal Act 2013 (the NCAT Act). 3. Pursuant to the findings of the Tribunal, the only order made was as follows: The Respondent is to pay the Applicant the amount of $900.00 immediately. Jurisdiction 1. Section 80(1) of the NCAT Act provides that an appeal against an internally appealable decision may be made to an Appeal Panel. An internally appealable decision is defined in s 32 of the NCAT Act to include a general decision made by the Tribunal. A general decision is defined in s 29 of the NCAT Act as a decision made in the exercise of the Tribunal's general jurisdiction which is, in turn, ascertained by reference to legislation other than the Act. In this case, the Tribunal's jurisdiction was enlivened by s 7 of the Consumer Claims Act. The Tribunal therefore had general jurisdiction in relation to a consumer claim and the Appeal Panel has jurisdiction in relation to the internally appealable decision. 2. An appeal from an internally appealable decision lies as of right on any question of law or, with the leave of the Appeal Panel, on any other ground: 80(2) of the NCAT Act. The question of leave is restricted in the case of an appeal from the Consumer and Commercial Division, by clause 12 of Schedule 4 of the NCAT Act to the following grounds: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Background 1. As appears from the Tribunal Member's decision, a dispute between the Appellant and the Respondent arose when the Appellant alleged breaches by the Respondent of an Exclusive Management Agency Agreement ("the agency agreement") made between the parties. The agreement related to the management of the Appellant's investment unit ("the unit"). The Agency Agreement was signed by the Respondent (the Respondent) on 1 July 2011 and by the Appellant on 29 September 2011. The agreement commenced on 1 July 2011 and was to continue until terminated. 2. The Appellant made a number of claims in his application in relation to the management of the unit after his tenant gave notice on 17 July 2013 of an intention to vacate the unit on 13 August 2013. The Appellant claimed that the unit was not re-let immediately because of the Respondent's failures to advertise the unit correctly. The failures include three periods in which the unit was incorrectly advertised: 1. From 17 July until 6 August the unit was wrongly listed under 'house to rent' rather than a 'unit to rent' on the Respondent's website. 2. After the Appellant asked the Respondent to advertise the unit at $875.00 per week, it was advertised as $8,750.00 per week for a short period. 3. During a period in September 2013, the unit was not advertised on the internet. 1. The Appellant also claims that during the period in which the unit was not advertised on the internet, the Respondent's employee sent him a screen shot of the advertisement purporting to show that the unit was in fact being advertised on the internet. (We note that this latter claim was specifically raised on the second day of the Appeal hearing.) 2. In his application, the Appellant sought damages in the sum of $6,685.64, being rent at the rate of $900 per week for the entire period the unit was vacant (that is, from 13 August 2013 to 4 October 2013), plus interest and $5000 in exemplary damages. The Appellant filed amended applications in which the sum sought finally rose to $18,543.07. This amount included a claim for exemplary damages in the sum of $10,000 and refund of a management fee of $946. 3. The Respondent submitted that, subject to errors in advertising for a short period, it managed the unit with due care and skill. The tenant had given notice of termination on 17 July 2013. The Respondent immediately advised the Appellant, and the Respondent advertised the unit for rent on 17 July 2013. 4. The Respondent acknowledged that the rent was advertised at the incorrect rental amount for a short period of 1 hour and 38 minutes. The Respondent also acknowledged that the unit was wrongly advertised from 17 July 2013 to 6 August 2013 under the advertisements for houses for rent. This error was identified and changed. The unit was re-let on 25 September 2013 at $860.00 per week. On the second day of the Appeal hearing, the Respondent conceded that the unit was not advertised on the internet for a period in September 2013, although the length of the period was disputed. 5. The Respondent agreed to compensate the Appellant for the period of erroneous advertising, and offered the Appellant 50% of two weeks rent, totalling $900.00. The Respondent declined to offer more, submitting that $860.00 per week was the real market value at that time. As to the Respondent's errors, the Respondent submitted that the time taken to correct the typing error concerning quantum of rental was not significant; and that a person searching on the website for a residence would investigate both houses and units. 6. The Respondent also stated that the unit was open for inspection on 24 July 2013 and that an application was taken on 31 July 2013 from a prospective tenant who elected ultimately to rent elsewhere. 7. The Respondent submitted that the asking price of $900.00 per week for the unit, which the Appellant sought and instructed the Respondent to advertise, was excessive. The Respondent made such assessment based upon the rental of another unit in the same complex which had a newer kitchen and was located on the 12th level. The appellant's unit is located on the 5th level. 8. The Respondent stated that a prospective tenant had agreed to occupy the unit from 24 August 2013, as evidenced by his email dated 15 August 2013. However, the prospective tenant sought a rent reduction from $900.00 to $875.00 and sought a 12 month lease. The Appellant would not agree to a 12 month lease. Another prospective tenant was found as recorded in the Respondent's email to the Appellant dated 10 September 2013, but an issue between the Appellant and that person arose concerning a refrigerator remaining in the premises. In an email dated 16 September 2013 from the Respondent to the Appellant, options were provided to the Appellant to either remove the refrigerator at his cost, to reduce the rent to $860.00 per week and to accept a 12 month lease. 9. This email was sent to the wrong address. However, the Respondent stated that the Appellant later spoke with the prospective tenant. In an email dated 20 September 2013, the Respondent informed the Appellant that the tenant decided not to take the unit because of the manner in which the Appellant had spoken to him. 10. The Respondent provided certain evidence in the form of statutory declarations in support of its contention that it had managed the unit appropriately. Summary of Tribunal findings 1. The essential findings of the Tribunal are: 1. The claim was brought by the Appellant upon two causes of action, namely a claim under the Consumer Claims Act for breach of contract, namely the Agency Agreement, and secondly a claim under Australian Consumer Law; 2. For a period of "two weeks", said to be from 17 July 2013 to 16 August 2013, the Respondent had advertised the unit erroneously as a 'house'; 3. That the mistake occurred in the advertising of the amount of the rent, namely $8,750.00 instead of $875.00; 4. The wrong rent was advertised for less than two hours, and accordingly, was of no significance; 5. The Respondent failed on one occasion to send an email to the Appellant at the correct address, but this had no significance to the leasing of the unit, nor did it constitute a breach of the due care and skill expected of the Respondent; 6. The Appellant's requirements with respect to the advertised rent of $900 per week, the fixed term period, and the refrigerator remaining on the premises, were unreasonable and that it was for these reasons that prospective tenants did not proceed to lease the unit; 7. The rental sought by the Appellant was excessive; 8. The sum of $900.00 was fair and just compensation in respect of the error concerning the period during which the unit was wrongly advertised; 9. There was no failure by the Respondent which resulted in the unit being rented at $40.00 less than the Appellant sought; 10. When the listing error was rectified, it remained difficult to lease the unit at the Appellant's asking price; 11. The preparation of statements by the Respondent for the Appellant and its responsibilities under the Respondent Agreement were carried out with due diligence. Whilst there were minor errors, they were rectified promptly; 12. The Respondent's fee of $946.00, should not be refunded to the Appellant; 13. No error was made intentionally, knowingly, or with malice; 14. There was no basis for the Appellant's claim for exemplary damages; and 15. The claim for interest should be rejected. 1. As to the hearing, the Tribunal stated: 1. It had considered all the evidence provided by the parties; 2. An employee of the Respondent named Anna was not able to give evidence nor to be cross-examined. However, since the correspondence was largely done via email, the Tribunal accepted that those documents recorded the relevant events and correspondence between the parties. Grounds of appeal 1. The Appellant claims that the Tribunal failed to consider material facts; that the decision was against the weight of evidence; was not fair and equitable; that material facts were ignored; that the Tribunal failed to consider the Respondent's negligence and deceitful and fraudulent behaviour, and that accordingly the decision was against the evidence and the weight of evidence. Further, it is asserted that the Member did not deal with any of the central material facts and failed to give adequate reasons. The Appellant alleges that the evidence submitted by the Respondent, namely two statutory declarations, should not have been admitted and that penalties should have been imposed under the Oaths Act 1900 (NSW) against the Respondent. Reply to appeal 1. The Respondent opposes the grounds of appeal. Further, the Respondent points out that since these proceedings are residential in nature, the appeal must be lodged within 14 days from the date on which the Appellant was notified of the decision. It follows that the appeal is out of time, since the decision was notified on 15 December 2014 to the Appellant. Timing of appeal 1. Rule 25 of the Civil and Administrative Rules 2014 (NSW) concerns the timing of appeals. Rule 25(4) provides that unless the Tribunal grants an extension under s 41 of the Act, (that is, the NCAT Act) "an external or internal appeal must be lodged: (a)… (b) in the case of an internal appeal against a decision made in residential proceedings – within 14 days from the day on which the Appellant was notified of the decision or given reasons for the decision (whichever is later), or (c)…" 2. "Residential proceedings" is defined in Rule 3 of the above Rules as including: Proceedings allocated to the Consumer and Commercial Division of the Tribunal arising under any of the following:… 1. Several statutes are listed, but these do not include the Consumer Claims Act. Accordingly, the assertion by the Respondent that the Appeal should have been brought within 14 days of notification fails. The application was lodged, as required by the Rules, within the time prescribed. Conduct of Appeal 1. The Appellant filed lengthy submissions prior to the initial hearing of this appeal. As will appear later in these reasons for decision, the Appeal Panel considered that it was necessary to hold a further day of hearing in view of its receipt from the Appellant of further voluminous submissions after the hearing. The subsequent submissions and the subsequent hearing will be referred to later in this decision, and we refer now to the submissions provided on the first day of hearing of this appeal. Appellant's submissions 1. The Appellant's submissions were made both orally and in writing. They contain a mixture of fact, opinion, assertion of legal principles, and references to reported decisions. For this reason, at the beginning of the hearing, the Appeal Panel required the Appellant to formulate concise grounds of appeal and to address the Appeal Tribunal accordingly. We record the principal submissions made orally by the Appellant, acknowledging that his written submissions supplement his oral submissions. 2. The grounds of appeal argued orally by the Appellant at the first hearing and our findings in relation to these grounds follow. 1 Erroneous finding 1. The Appellant submits that the Tribunal erred in making the observation contained at [51] of the decision, namely that intention was relevant to his claim of deceit. At [51], the Tribunal Member said:- In relation to the claim for exemplary damages, the Tribunal does not find that the respondent has done anything to warrant a finding for the awarding of exemplary damages. The Tribunal finds that any error made was not done intentionally, knowingly or with malice. While the error of advertising the unit under "house" as opposed to a "unit" may have been a breach of due skill and care, the Tribunal does not consider such a breach worthy of the making of an order for exemplary damages. The Appellant therefore claims that the Tribunal Member made an error of law in reaching this finding. 1. In our view, inherent in the finding at [51] of the Tribunal's reasons for decision is a finding that there was no intentional act done, nor was any act done by the Respondent knowingly or with malice. We are satisfied that this is the Tribunal Member's finding in relation to the claims of fraud and deceit. 2. The Appellant refers to the decision in Derry v Peek (1889) 14 App Cas 337 (Derry v Peak), and asserts that the Tribunal Member erred in finding that the Respondent had not made its errors intentionally. The Appellant says that intention is irrelevant where fraud is concerned. 3. In Derry v Peak at 374, Lord Herschell stated: If fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made. See also Crown v McNeil (1922) 31 CLR 76 at 104. 1. Accordingly, in applying such principle, the threshold question is whether or not fraud has been proved: only then, if proved, is intention irrelevant. In the present appeal, the Tribunal Member made a finding that no fraudulent conduct existed. Accordingly, the question of intent relied upon by the Appellant as constituting an error, does not arise because fraud on the part of the Respondent was not established. That is, in the absence of a finding of fraud, the issue of intent is not relevant. We are not satisfied that the Tribunal Member erred in the way in which she dealt with this issue. It follows that we reject the first ground of appeal. 2 Period of incorrect advertising 1. The Appellant submits that the Tribunal Member failed to appreciate that the unit was not advertised properly for 31 days. This includes a period of eleven days in September 2013, when the unit was not advertised on the internet, the period from 17 July 2013 to 6 August 2013 when the unit was advertised under "houses" rather than under "units"; and the period when the unit was advertised at the incorrect rental. 2. The Appellant also submits that the conduct of the Respondent constituted concealment, fraud, and misrepresentation. On the second day of the Appeal hearing in particular, the Appellant referred to screen shots of the advertisement which were sent to him in September 2013, apparently during the period in which the unit was not advertised on the internet. The Appellant alleges that these screen shots are evidence that an employee of the Respondent sought to mislead him into believing that the advertisement was in fact on the internet. 3. The Tribunal made findings in relation to the period during which the unit was incorrectly advertised as a house and the period during which the incorrect rent was advertised. However, the Tribunal made no finding about the period during which the unit was not advertised on the internet in September 2013. This aspect of the Appellant's claim was included in the Appellant's original application (at Annexure B, paragraph F) and the oral submissions made by both parties during the Appeal hearing make it clear that the failure to advertise during this period was raised during the hearing before the Tribunal. 4. It is not clear whether the issue concerning the screen shots was raised during the hearing before the Tribunal Member, as there is no reference to it in the reasons for decision. However, the Respondent did not deny that this issue had been raised before the Tribunal Member. We are satisfied that the issue of the failure to advertise on the internet for a particular period and the related issue of the screen shots, are material issues on which findings should have been made, as they go to whether the Respondent breached its agreement with the Appellant. In these circumstances, we are satisfied that the Tribunal failed to make findings on material question of fact and as a consequence failed to provide proper reasons. This is an error of law: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. 5. Therefore we shall refer the proceedings back to the Tribunal Member for findings to be made and reasons given with respect to these issues. The Tribunal Member is also to consider whether the damages awarded to the Appellant should be increased as a result of her findings in respect of any failure to advertise the unit on the internet for a specified period and/or any behaviour of the Respondent in respect of the screen shots. Subject to any submissions made by the parties, it will be up to the Tribunal Member to determine whether any further evidence or submissions on these issues will be allowed and whether or not a hearing should be dispensed with. 6. We note that it is not in dispute that the unit was advertised as a house for the period from 17 July 2013 to 6 August 2013, which is a period of 20 days. These dates are correctly recorded at [22] of the Tribunal's reasons for decision under the heading "The Respondent's case". However, at [41] of the reasons for decision, the Tribunal refers to "the short period of 2 weeks from 17 July 2013 to 16 August 2013". It appears to us that the references to "2 weeks" rather than 20 days and the reference to "16 August" rather than 6 August may be errors that could be corrected under s 63(1) of the NCAT Act (the slip rule). We have accordingly directed the Tribunal Member to consider whether such errors have been made and whether to make an appropriate order under the slip rule. 7. In any event, even if the errors made by the Tribunal Member at [41] are more than errors capable of being corrected under the slip rule, we are not satisfied that they constitute an error of law or that this is a matter in relation to which we would otherwise grant leave to appeal in accordance with the principles enunciated in Collins v Urban [2014]NSWCATAP 17. 3 Adequacy of damages 1. In this ground of appeal, the appellant maintains that $900.00 is not sufficient to compensate him for his loss because of the erroneous advertisement in respect of the subject premises. 2. The decision to award $900.00 takes into account the other factors which the Tribunal Member found were responsible for causing delay in the reletting of the premises; that is, the high rental demanded by the appellant, the term which the appellant sought, and the presence of the refrigerator. The incorrect advertising did not constitute the sole cause of the delay. 3. Subject to findings that may be made by the Tribunal Member in relation to the failure to advertise on the internet and the screen shots, we see no error in the award of $900.00. The quantum of damages is a matter within the discretion of the Tribunal Member. It is a decision which is not so unreasonable as to demonstrate an error of law: see House v R [1936] HCA 40; 55 ALR 499: 44, 74-75. Nor are we satisfied that the Tribunal's decision in relation to damages was not fair and equitable or against the weight of evidence. We stress however that the adequacy of the amount awarded is subject to further consideration by the Tribunal Member. 4 Tribunal Member's erroneous approach 1. The Appellant claims that the Tribunal Member determined the proceedings based upon the allegation of breach of contract, when in fact, his claim also involved allegations of negligence. 2. In the original application the Appellant states, inter alia: I, as the Applicant, rely on the Exclusive Management Agency Agreement – residential… 1. Thereafter there are allegations that the Respondent failed to advertise, to reduce the asking rent, to respond to emails, to perform other duties and was therefore in breach of the Agreement, and refers thereafter to each alleged breach of contract. The particulars of the second amended application provided in support lists nine examples of negligence of the Respondent. Item 1(k) states: The Applicant also claims exemplary damages in the amount of $10,000 as a result of the Respondent's grossly negligent conduct, including deceitful and fraudulent misrepresentation. 1. An allegation of the Respondent's gross negligence is contained in ground 3 of the amended Notice of Appeal, which in effect reiterates the grounds of negligence raised before. Ground 4 asserts the Respondent "acted in a deceitful and fraudulent manner", amounting to, inter alia, "fraudulent misrepresentation". The Applicant claimed that he suffered loss as a result, and sought exemplary damages. 2. The Tribunal Member understood such claims to arise out of the Agency Agreement. In [3] of the reasons for decision, the Tribunal Member stated: By application received 16 October 2013, the applicant was initially seeking an amount of $11,685.64 from the respondent. The applicant was claiming that the Respondent had failed to advertise and manage the unit in accordance with the managing agency agreement. He was claiming the respondent had breach [sic] the contract between the parties and had failed to act with due care and skill. 1. The relationship between the Appellant and the Respondent was bound by their contract. Within that contractual relationship, the Respondent, if negligent in the performance of its duties, thereby breached the contract. All of the particulars of negligence provided relate to the negligent performance of the duties of the Respondent under the agreement. When the Tribunal Member found that the Respondent had failed to exercise due care and skill when it failed to advertise the unit on the internet under "unit", it is an acknowledgement of a failure by the Respondent to perform the Agency Agreement on its part. 2. A "consumer claim" as defined by s 3 of the Consumer Claims Act is one which arises where a supplier (in this case, the Respondent) has agreed to supply services, "whether under a contract or not". It follows that the Tribunal Member was considering the appellant's claim under s 3: that claim could arise in negligence, fraud or deceit in addition to a contracted claim. 3. The Appeal Panel rejects the submission that findings on each claim raised by the Appellant in the form set out in the application were necessary. The Tribunal Member did not characterise every individual claim made by the Appellant, but observed at [43] of the Tribunal's reasons for decision that s 38 of the NCAT Act establishes the procedures which a Tribunal may adopt. 4. We are not satisfied that there was any error in the manner in which the Tribunal Member characterised the issues to be determined. In relation to this, the Tribunal "is not bound by the rules of evidence and may inquire 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. Further, the Tribunal "is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms": s 38(4) NCAT Act. 5. Accordingly, we reject this ground of appeal. 5 Failure to consider a material fact 1. The Appellant submits that the "weight of evidence and logic" should have resulted in a finding that the demands made by the Appellant concerning the duration of a new lease and the increased rent he required were not unreasonable demands. 2. At [47] and [48] of the Tribunal Member's reasons for decision, reference is made to the terms which the Appellant stipulated for any new tenancy agreement. The Tribunal Member found, inter alia: From the evidence, it appears that the rent amount of $900 was too high. Even when the clearance rate is relatively low, if the rent is too high, a unit is going to be more difficult to rent. The feedback provided in various emails demonstrates that prospective tenants did not proceed to lease the premises for various reasons including that either the rent was too high, some wanted the landlord to remove the fridge at his own cost or wanted a longer fixed term period. Accordingly, the Tribunal finds that a return of half the rent for a period of two weeks and for a total amount of $900 is fair and just to compensate for the error in advertising the unit under 'house' as opposed to 'unit'. 1. The claimed absence of logic in the decision maker's decision can be interpreted as a submission that the decision was "irrational", or "unreasonable", as referred to in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. To succeed on such a ground, an appellant must demonstrate that the conduct of the Tribunal Member was so unreasonable that no reasonable person could so conclude. A high level of unreasonableness might be equated to irrationality: see Minister for Immigration and Citizenship v SZMDS [12010] HCA 16; 240 CLR 611. However, insofar as the Wednesbury test is to be applied, it applies only to the decision-maker's discretionary decisions, but not to fact-finding; see Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. 2. A claim of unreasonableness or irrationality may amount to no more than disagreement with the decision. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, the High Court of Australia observed that expressions such as "illogical or unreasonable, or irrational" used in challenging a decision may merely be an emphatic way of "saying that the decision is wrong" at 626 per Gleeson CJ and McHugh. To describe a conclusion that a decision maker is not satisfied as 'irrational' might mean no more than that, on the material before the decision maker, the court would not have reached the required status of satisfaction: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at 1167 [5] per Gleeson CJ. 3. Further, courts have repeatedly found that where there might be "mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions, this is not a sufficient reason for overturning a judicial decision on review", see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 48. 4. The Tribunal Member had material before her from which she could readily draw the inference that because of other factors, namely the high rent and rental term required by the appellant and the presence of the refrigerator in the unit, the wrongly placed advertisement was not the sole reason or even a substantial reason that the unit failed to rent immediately. As the fact finder in the proceedings, the decision of the Tribunal Member in relation to this issue was open to her. It does not constitute an error or law and is not unfair or inequitable. Nor is it against the weight of evidence. The Appeal Panel accordingly rejects this ground of appeal. 6 Absence of witnesses 1. The Appellant submits that he was not able to cross-examine witnesses of the Respondent, since no oral witnesses were called. Two documents entitled Statutory Declarations were provided by the Respondent. The Appellant maintains that the Statutory Declarations were not true declarations because they were not in proper form and claims that penalties should be ordered against the makers of the declarations because of this fact. 2. Further, the Appellant referred the Appeal Panel to well-known authorities such as Brown v Dunn (1894) 6 The Reports 67 and Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 in support of his submission that because the Respondent did not cross-examine the witnesses called by the Appellant, their testimony was required to be accepted. 3. At [43] to [44] of the Tribunal Member's decision, the Tribunal found that although the person having the conduct of the matter within the Respondent's office was not available to give evidence or be cross-examined, the negotiations between the Appellant and the Respondent were done via email, and that such emails "have been provided to the Tribunal and record the events and correspondence between the parties." 4. The rigid requirements of a court proceeding, namely strict pleadings and compliance with the rules of evidence, have no application in the Tribunal. It follows that the Tribunal Member was entitled to proceed to enquire into and inform herself on any matter as she saw fit: s 38(2) NCAT Act. We are not satisfied that the procedures adopted by the Tribunal Member in this instance, namely to pay regard to the facts as set out in the email correspondence and not to require the deponents of the statutory declarations for cross-examination, constitute an error of law or were otherwise not fair and equitable. 5. In relation to the Appellant's assertion that as his witnesses were not cross-examined, the Tribunal Member was obliged to accept their testimony, where testimony is uncontested, it is normally accepted. However, this does not result in the conclusion that the Tribunal Member erred by not referring to the evidence of the Appellant's witnesses. The Tribunal Member was entitled to consider all of the material before her in reaching her decision. To the extent that the evidence of the Appellant's witnesses went to whether or not the unit was advertised on the internet during a period in September 2013, it is not in dispute that there was a period during which the unit was not so advertised. The implications of this issue will be considered by the Tribunal Member upon remittal. Appellant's written submissions 1. We now turn to the written submissions provided by the Appellant. The Appellant's original written submissions comprise numerous pages of typed material. The submissions raise many allegations and assertions of fact and contain references to numerous authorities. 2. The Appellant refers to his claim for damages arising out of the claimed fraudulent misrepresentation by the Respondent. Other matters contained in the written submissions refer in detail to the timing of which the erroneous advertisements were published. As noted above, the Appellant refers to screen shots taken of the advertisement placed by the Respondent on the website, and analyses the precise minutes and hours when the screen shots were taken. The Appellant makes claims that these screen shots demonstrate fraud by the Respondent. 3. The Tribunal Member did not refer to the screen shots to which the Appellant refers, and no finding on this claim was made. As noted above, the Appeal Panel finds that additional findings and reasons are required to answer the Appellant's submission in relation to the screen shots of the advertisements. 4. The Appellant refers to the fact that the Respondent had not pleaded contributory negligence and should have done so in order to justify any conduct of the Appellant being taken into account when assessing damages. However, it is a matter for the Respondent to formulate its own defence. In any event, the Tribunal is not a court of strict pleading and the Tribunal was entitled to take into account all of the evidence – including the evidence in relation to the Appellant's own conduct – when deciding what damages to award. 5. Next, the Appellant submits that the Tribunal's reasons are inadequate. The importance of reasons was considered, in the context of judicial review, by the High Court of Australia of Minister for Immigration and Citizenship v SZMDS by Gummow ACJ and Kiefel J at [32]. In relation to the Administrative Decisions Tribunal, being the predecessor to this Tribunal, it has been held that adequate reasons for a decision must be provided: see Sydney Supermarkets Pty Ltd v Xu [2009] NSWADTAP 28 at [56]-[60]. The same principle applies to decisions made in this Tribunal: see Collins v Urban [2014] NSWCATAP 17 at [53]-[56]. It is fundamental that a decision-maker should provide reasons for a decision or to make "a note of everything necessary to enable the case to be laid properly and sufficiently before the Appellate Court if there should be an appeal": see Carlson v King (1947) 64 WN(NSW) 65 per Jordan CJ at p 66. However, as was stated in Collins v Urban at [57], the content and detail of the reasons for decision "will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision": Wainohu v New South Wales (2011) 243 CLR 181 at [56] per French CJ and Kiefel J. 6. As stated in Collins v Urban at [60]: 60. The obligation of the Tribunal is to resolve proceedings in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings as required by s36(4) of the Act. 1. A "pragmatic and functional approach" is to be applied in determining whether the obligation to give reasons has been satisfied: see Collins v Urban at [57], quoting Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33 at [46] per Basten JA. 2. It is a matter for assessment whether an appellate body considers that adequate reasons explain the decision. We are satisfied that, subject to the issue of the failure to advertise the unit on the internet for a particular period and the issue of the screen shots of the advertisement, the Tribunal Member has made it plain how she arrived at her decision. We reject this ground of appeal. Application by Appellant to rely upon new evidence and amended ground of appeal 1. During the hearing, the Appellant sought to rely upon an amendment to his grounds of appeal. Notification was provided, at the earliest, on the day prior to the hearing of the additional claim for which leave would be sought before the Appeal Tribunal. However, the Respondent states that whilst an email was received from the Appellant on the day before the hearing of this appeal, the actual text of the proposed amendment was not provided until they arrived at the hearing. 2. Having apprised ourselves of the content of the proposed amended ground of appeal - that is, that new evidence is now available that was not reasonably available at the time of the hearing - we are satisfied that leave should be refused for the following reasons. 3. The Appellant, by his proposed amendment, seeks to rely upon a tenancy agreement in relation to the unit entered into in October 2014, more than a year after its last letting by the Respondent. The rent under the recent tenancy agreement is for $950 per week. The Appellant submits that this proves that his rent demand made 12 months previously for $900 per week was not excessive. 4. If the Tribunal permitted such amendment, the Respondent would be entitled to call evidence to show, for example, that the rental market had improved in the 12 month period. 5. This is an entirely fresh matter, and was not foreshadowed until, at the earliest, the day before the hearing of this appeal. 6. The Appellant relied upon the decision of the High Court in The State of Queensland v J. L. Holdings Pty Ltd (1997) 189 CLR 146 (J.L Holdings) as authority supporting his late application to amend. However, the facts in this present matter are entirely different. In J. L. Holdings, the application was made late because of only recently discovered material, the hearing date would not be prejudiced and the point sought to be argued could not be avoided as it was apparent on the face of certain documents. 7. No such considerations apply in the present case. Here, the hearing had concluded and the new issues were first raised on this appeal. Evidence to demonstrate that $900 was an appropriate market rent could have been raised before the Tribunal Member. It was not. 8. The High Court of Australia in Aon Risk Services Pty Ltd v Australia National University (2009) 239 CLR 175 has made it plain that the parties are bound by the way in which they have conducted their cases: see French CJ at [28]-[30]; Heydon J at [133]. At this stage of the proceedings, to allow a further ground of appeal which could well raise issues of further evidence involving rental assessments and other factors should not be permitted. To do so would only extend the hearing and result in further costs. 9. We are satisfied that it would not be in the interest of just, quick and cheap resolution of the dispute between the parties to allow such a ground to now be raised. Accordingly, we refuse leave to amend the Notice of Appeal. Appellant's further written submissions 1. As noted above, following the first Appeal hearing date on 22 April 2015, the Appellant filed further lengthy submissions. Contained in the Appellant's submissions was a complaint concerning what he asserted was procedural unfairness. Upon receipt of the submissions, the Appeal Tribunal held a further hearing on 23 May 2015. 2. In dealing with the Appellant's further written submissions and further oral submissions made on 23 May 2015, we shall only refer to matters that have not already been referred to previously in these reasons for decision. 3. The Appellant addressed the Appeal Panel extensively. His concern was that allegations had been made by the Respondent that the proceedings were frivolous or vexatious, that there had been dishonesty by the Appellant, and that that there had been a lack of fairness by the Tribunal Member in reaching findings when the Respondent had not sought to cross-examine any of the Appellant's witnesses. He complained that the fact that the decision made by the Tribunal Member being adverse to him was unfair in light of the evidence he had adduced. He also complained concerning the limitation of time afforded to him to make oral submissions at the first Appeal Panel hearing. Limitation on time for the hearing of submissions 1. Given that on 22 April 2015 the appeal was listed for half a day, both parties were given 45 minutes to make oral submissions, as we considered such a period of time all that was reasonably necessary for the fair and adequate presentation of the parties' cases: s 36(6) NCAT Act. At the second Appeal Panel hearing on 21 May 2015, the Appellant addressed the Appeal Panel for approximately two hours. 2. Pursuant to s 36(4) of the NCAT Act: In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the costs to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. 1. We are satisfied that the Appellant was given an adequate period to make oral submissions, noting in particular that the Appellant was only required to address orally the written submissions already provided to the Appeal Panel. Payment of management fee 1. In the Appellant's further written submissions, he claimed that he should be reimbursed the $946.00 management fee he paid the Respondent, because of the "the breach of contract, the negligence etc". This part of the Appellant's claim was made in his second amended application to the Tribunal. In relation to this, we see no error in the way that issue was determined by the Tribunal Member in the reasons for decision. Observations 1. The above represents the matters argued by the Appellant on the second day of hearing. As already indicated, the written submissions filed by the Appellant subsequent to 22 April (the first day of the appeal hearing), have been addressed, and the Appellant acknowledged that there were no further matters which he wished to raise on the appeal. 2. The Appellant appears to have approached the hearing before the Tribunal Member as if it were a hearing in a court where strict rules of pleading and of evidence apply. Such approach is not applicable in the Tribunal. Rather, the Tribunal may determine its own procedure and is not bound by the rules of evidence; it may enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(1) and 38(2) of the NCAT Act. 3. Pursuant to s 38(6)(a) of the NCAT Act, the Tribunal is to ensure that all relevant material is disclosed to it "so as to enable it to determine all of the relevant facts in issue in any proceedings". The object, as stated in s 3 of the NCAT Act is, inter alia, "to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply, and with little formality as possible…": see s 3(d). 4. In this case, we are satisfied that the Tribunal Member's reasons for decision, subject to the issues we have noted, adequately explain findings that she was entitled to make on the evidence before her. We are also satisfied that the findings made by the Tribunal Member were open to her on the evidence provided. Other than in respect of the issues referred to in our orders, we find that questions of law are not established on the appeal. Nor are we satisfied that the Appellant has established that he may have suffered a substantial miscarriage of justice. In these circumstances, we have not given consideration to the issue of leave to appeal. Costs 1. The Appeal Panel heard argument as to costs of the appeal. Pursuant to s 60(2) the Appeal Panel may only make an order for costs if it is satisfied that there are special circumstances warranting such an award. 2. We are not satisfied that the facts or circumstances in this appeal constitute "special circumstances" justifying an order for costs. Orders 1. The Tribunal orders: 1. The proceedings are remitted to the Tribunal as originally constituted for findings and reasons in relation to the following issues: 1. the period during which the unit was not advertised on the internet in September 2013; 2. whether any fraudulent conduct exists with regard to screen shots of internet advertisements for the unit given to the Appellant in September 2013; 3. whether, arising from the findings made in respect of (i) and (ii) above, the Appellant is entitled to additional damages and if so, the quantum of any additional damages and 4. whether the reasons for decision dated 11 December 2014 should be amended under s 63(3) of the Civil and Administrative Tribunal Act 2013 to correct the reference in [41] of the reasons for decision to "the short period of two weeks from 17 July 2013 to 16 August 2013" and if so, to make the relevant amendment. 1. Prior to determining the issues referred to in order (1) above, the Tribunal is to consider: 1. whether further evidence and/or submissions from the parties in relation to the relevant issues is required and 2. whether a hearing can be dispensed with in accordance with s 50(2) and (3) of the Civil and Administrative Tribunal Act 2013 and may make directions accordingly. 1. The appeal is otherwise dismissed. 2. The parties are to pay their own costs. 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: 03 July 2015