Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kang v Khan [2015] NSWCATAP 156 Hearing dates: 23 April 2015 Date of orders: 30 July 2015 Decision date: 30 July 2015 Jurisdiction: Appeal Panel Before: P Wass SC, Senior Member K Rosser, Senior Member Decision: 1. The application for leave to appeal is dismissed. 2. The appeal is otherwise dismissed. Catchwords: Appeal - Whether decision not fair and equitable; whether new evidence was not reasonably available at time of the hearing; whether denial of procedural fairness Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Khan v Kang [2014] NSWCATAP 48 Collins v Urban [2014] NSWCATAP 17 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596; 97 ALR 177; (1990) 65 ALJR 167; 21 ALD 651 Kioa and Ors v West [1985] HCA 81; (1985) 159 CLR 550; (1985) 62 ALR 321; (1986) 60 ALJR 113; 9 ALN N28 Texts Cited: Nil Category: Principal judgment Parties: Shinwoo Kang and Sung Ju Lee – Appellants Nazmul Nisha Khan - Respondent Representation: Parties self-represented File Number(s): AP 14/60570 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 9 December 2014 Before: D Goldstein, Senior Member File Number(s): HB 14/09386 reasons for decision Introduction 1. By a Notice of Appeal filed 23 December 2014, the appellants appeal against a decision of the Tribunal made on 9 December 2014. The Tribunal's decision was made on remittal from a differently constituted Appeal Panel, following the respondent's successful appeal against an earlier decision made by the Tribunal: Khan v Kang [2014] NSWCATAP 48. For the reasons that follow the Appeal Panel has determined to dismiss the application for leave to appeal and to dismiss the appeal. The Appellants' Case 1. The dispute between the parties arises from an agreement between the parties that the install, sand and coat stairs and flooring for the sum of $9,760. 2. The appellants rely on the following grounds of appeal: 1. The Tribunal accepted inappropriate evidence in order to prove that their work was not carried out in a proper and workmanlike manner; 2. The Tribunal's lack of knowledge in sanding and coating processes led to a premature decision and it found defects that are "generally resolved after the final coating"; 3. The Tribunal failed to refer to the counter evidence (especially the complete guide to sanding and technical data sheet), resulting in an unfair decision; 4. The Tribunal took into account irrelevant matters or matters not in evidence from the respondent, including two quotations which were irrelevant as they incorrectly refer to "completed" work; 5. The Tribunal's reasons were unsupported and/or irrelevant, especially where based on photographic evidence (which showed no visible faults) and timber installation; 6. The findings of the Tribunal at paragraph 32(f) were not relevant. The creaking on the stairs was a matter about which the appellants had no notice, could have been resolved and was not related to sanding. Further, the contract required three coatings of sealer, followed by a finish coat. Accordingly further sanding was required at the time the respondent refused to allow the appellants to complete the work. 7. The Tribunal erred in allowing $800 for purchase of timber, which was not required. There were no quotations to support the measurements. 8. The Tribunal did not indicate the amount of time needed for the hearing, leading to an inequitable decision, depriving the appellants the opportunity for a complete hearing. The appellants had to leave the hearing before it was completed. 1. The appellants seek the following orders from the Appeal Panel: 1. An order in the appellants' favour, that they do not have to pay $3,600 for rectification work as they were forcefully and unreasonably interrupted by the respondent; 2. An order in the appellants' favour, that they do not have to pay the claimed $800 for repurchasing excess timber; 3. An order that the respondent pay the appellants $3,100; and 4. An order that the appellants do not have to pay the respondent any compensation for late completion. The Respondent's Case 1. In her Reply to Appeal, the respondent relevantly states as follows: 1. Mr Lee did not attend at the Tribunal hearing on 29 October 2014 or on 18 November 2014. The appellants sought to give evidence through others, which was not allowed. 2. The Tribunal determined the matter on the evidence, including expert quotes from someone with over 25 years of experience; 3. The "technical data" referred to by the appellants was not tendered at the hearing. 4. The measurements submitted by the appellants were not undertaken by an expert. 5. Both parties were given an opportunity to present their case. 6. The photos provided clearly show the wrong putty colour and other defective work, supported by three quotes for rectification. The Tribunal's Decision 1. The Tribunal delivered its reasons for decision on 9 December 2014 ("Reasons"). The only matter for consideration was whether or not the appellants had carried out the work in a proper and workmanlike manner: [28] Reasons. 2. The Tribunal relevantly made the following findings of fact: 1. The hearing concluded at 3 pm because the appellants had made arrangements to be elsewhere: [4] Reasons. 2. The appellants contracted with the respondent to install, sand and coat 17 stairs and 183 square metres of flooring for the sum of $9,760: [7] and [8] Reasons. 3. The appellants commenced work, however, the relationship between the parties regarding the performance of the work became acrimonious and the work was not completed: [22] Reasons. 1. As to the use that could be made by the Tribunal of the quotations submitted by the respondent in support of her claim, the Tribunal referred to the earlier Appeal Panel decision: Khan v Kang [2014] NSWCATAP 48 at [50]. The Tribunal observed at [29] Reasons: 1. A quotation can, depending on the circumstances and the nature and content of the quotation, constitute evidence of the defects or incomplete work; 2. The weight of the evidence will depend on the circumstances; 1. The Tribunal found the quotations in this case to be relevant: [30] Decision. The Tribunal found that the quotations, together with the evidence as a whole, established as follows ([32] Decision): 1. There were nail holes filled with putty that did not match the timber; 2. There were rips or gouges in the timber flooring; 3. Some sanding of floors was unfinished; 4. The sanding that the appellants performed left "ripples" in the surface of the floor timbers; 5. The sealing of the floors in some areas is rough because dust was left on the floor after sanding and then coated over; and 6. The timber cladding to three stairs creaks and the wrong coating was used. 1. As to the respondent's claim for the $800, the Tribunal found the following relevant facts: ([34] –[43] Decision): 1. The respondent purchased the timber for the appellants to install; 2. Based on appellants' quote of 183 square metres (made up of 168 square metres of flooring, 8 square metres of stair timber, and 7 square metres of "extra" timber), the respondent purchased 180 square metres of timber. 3. In support of the respondent's claim, she attached measurements, calculating that 122.55 square metres of timber was used. The 7 metres of "wastage" used in cutting the timber was accepted. 4. The respondent also tendered an invoice from the timber supplier showing that the appellant paid $74 per square metre for timber. That invoice was not in question. 5. The Tribunal member found that the respondent would only need to prove 11 square metres in excess timber to establish her claim. 6. The appellants referred the Tribunal to the quotation from T Flooring, which provided a measurement of a greater area, namely 157 square metres. The Tribunal accepted that quotation. The Tribunal calculated that 157 metres plus 7 metres of wastage established that the respondent over-ordered 16 square metres of timber in reliance on the appellant's calculation. 7. The stairs required 8 square metres of timber. 8. The respondent had excess timber stored in her garage. 1. The Tribunal, having regard to the fact that the measurements were not precise, was satisfied that the amount of $800 was a reasonable estimate of the respondent's over-ordering: [42] Decision. 2. As to the requirement that the respondent pay to the appellant $3,100, the respondent sought an order pursuant to s.48(c) of the Fair Trading Act, relieving her of the obligation to pay the balance otherwise owing under the contract. The Tribunal refused to make the order: [52] Decision. The respondent's claim for compensation for late completion also failed: [57] Decision. The respondent has not appealed against either of those findings. Relevant legal principles Appeal requiring leave 1. This is an internal appeal pursuant to s 80(2) of the NCAT Act. An internal appeal may be made as of right on a question of law and otherwise with the leave of the Appeal Panel. Pursuant to Schedule 4, cl 12 of the NCAT Act, the Appeal Panel can only grant leave to appeal from decisions of the Tribunal's Consumer and Commercial Division if it is satisfied that: 1. the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, 2. the decision was against the weight of evidence or 3. significant new evidence has arisen that was not reasonably available at the time the proceedings under appeal were being dealt with. 1. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel set out the meaning of "substantial miscarriage of justice" at [71] and [79] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [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 . . . 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." 1. The Appeal Panel has a discretion whether to grant leave to appeal even in cases where the appellant has demonstrated that they may have suffered a substantial miscarriage of justice. The principles to be applied in determining whether leave to appeal should be granted were also considered in Collins v Urban. The Appeal Panel conducted a review of the relevant cases at [65]-[79] and summarised the general principles derived from these cases as follows at [84]: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. …. Appeal as of right 1. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel considered what is required to establish a question of law that would give rise to an appeal as of right. Without providing an exhaustive list of possible questions of law, the Appeal Panel referred at [13] to the following in this regard: 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 only ground set out in the Notice of Appeal that raises an arguable question of law is Ground 8. If established, this ground could give rise to a finding that there was a denial of procedural fairness, which would be a question of law. All of the other appeal grounds require leave. Hearing before the Appeal Panel 1. The appellants were represented at the Appeal Panel by Mr Kang only. Mr Lee did not appear. Mr Kang spoke to the Tribunal with the assistance of an interpreter. 2. The appellants attempted to tender material that they claimed was a detailed document about how well they did work for others. This material was therefore only of marginal relevance to the issues determined by the Tribunal. In any event, it was material that could have been put before the Tribunal at the hearing but was not. The appellants said that they did not wish to provide it to the Tribunal because the information in it was confidential. The document had not been filed in preparation for the appeal and it had not been served upon the respondent. No indication had been given that a document of this kind would be relied on. In these circumstances, the Appeal Panel did not admit the document. 3. The appellants then contended that they wished for a third party expert to be arranged by the Appeal Panel so that an objective assessment of the flooring could be prepared. The Appeal Panel pointed out to the appellants that it was incumbent upon them to prepare their own evidence (in line with clear directions requiring them to file and serve any expert evidence in advance of the hearing), that it was necessary to show error in the Tribunal's decision and that it was not a rehearing. 4. Mr Kang then sought the assistance of Mr Don Hee Lee, who was present at the hearing, to make submissions on behalf of the appellants, which was allowed. Determination of the Appeal - Grounds 1, 2 and 4 1. The appellants contend that the Tribunal accepted inappropriate evidence in order to prove that their work was not carried out in a proper and workmanlike manner. They contend that the Tribunal's lack of knowledge in sanding and coating processes led to a premature decision and to the Tribunal finding as defects issues that are "generally resolved after the final coating"; 2. They contend further that the quotations provided by the respondent were irrelevant because they referred to completed work, when they were yet to complete the work. They contend that the faults referred to would have been "generally resolved in the final coating". 3. They contended in oral submissions before the Appeal Panel that the quotation from Sydney Floor Centres set out defects which would have been resolved after the final coat, which they weren't allowed to finish. The quote was based on the fact that the floor had been said to have been finished, which it was not. 4. It is noted that the appellants did not provide to the Tribunal any independent evidence in response to the respondent's quotations, even though they had ample opportunity to do so. The Appeal Panel finds that it was open to the Tribunal to accept the quotations, together with the evidence of the respondent, to support a finding that the work was defective and not carried out in a workmanlike manner. These appeal grounds are not made out. Determination of the Appeal - Ground 3 1. The appellants contend that the Tribunal failed to refer to their evidence (especially the complete guide to sanding and technical data sheet), resulting in an unfair decision. They contend that they provided "counter evidence" which was ignored by the Tribunal. The contend that had the Tribunal taken into account the evidence presented by the appellants showing the methods of sanding and polishing timber, it would have understood that what was perceived as faults was due to incomplete of the work and mistreatment by others. For example, they contend that: 1. the putty is usually applied a darker shade than the wood, to allow for the boards to deepen in colour following finishing and UV exposure. Further, they state that the timber was of varying colours and that it would have been affected by the final coats. Further it was contended the final putty had not been applied in some cases as this was to be done at the time of the final coat of sealer; 2. "rips and gouges" and "ripples", said to be present in the flooring were not referred to the quotation and are not visible in the photographs. Further, the sanding was not finished. 3. rough areas were due to dust on the surface, which was due to the respondent insisting that all work at the premises be performed at the same time. Further they contend that the final smooth sanding had not been done. 1. However, the Tribunal made clear reference to the material relied on by the appellants: [18] Decision. Whilst reasonable minds might differ about the effect of the evidence and which evidence is more compelling, it was open to the Tribunal to accept the respondent's evidence above that of the appellants. No error has been established. Determination of the Appeal - Ground 5 1. The appellants contend that the Tribunal's reasons were unsupported and/or irrelevant, especially where based on photographic evidence (which showed no visible faults). The appellants contend that the Tribunal accepted "invisible" faults. They further contend that most of the photos submitted are unreliable and do prove anything as they are blurry, and include notations, for example, "ripples not visible in photo" and "dust not visible in photo". Furthermore, they contend that the photos were out-dated, having been taken months after the second coating had been completed. The appellants contend that the respondent ill-treated the unfinished timber, which they claim was apparent from a comparison of other photos. 2. The appellants contended in oral submissions before the Appeal Panel that the photos do not show any problems and that in the final treatment any problems would have been removed. 3. Again, what is to be made of the photographs tendered by each of the parties is a matter about which reasonable minds might differ. Copies of the photographs were not tendered before the Appeal Panel. In any event, it was not submitted that the photographs did not reveal the defects alleged, but rather that not all of the photos did so and that the "defects" were not true defects in the sense that they were to be rectified in the final floor treatment. 4. The Appeal Panel finds that it was open to the Tribunal to accept the evidence of the photos, together with the quotations and the evidence presented by the respondent and to find, on the basis of that evidence, that the work was not carried out in a workmanlike manner. This ground of appeal is not made out. Determination of the Appeal - Ground 6 1. The appellants contend that findings of the Tribunal at paragraph 32(f) were not relevant. First, they contend that creaking on the stairs was a matter about which the appellants had no notice, which could have been resolved and which is not related to sanding. The appellants further contend that there was no creaking at the time the installation was completed and that, had they been required to solve the issue they would have done so. 2. Second, they contend that the contract made provision for three coats of sealer, then a gloss coat followed finally by an oil-based coat. In that case, they contend, further sanding was to be carried out, but the respondent refused to allow this to occur. 3. As with other previous grounds, it was open to the Tribunal member to accept this evidence and as a result find that the work was not performed in a workmanlike manner. This ground of appeal has not been made out. Determination of the Appeal - Ground 7 1. The appellants contend that the Tribunal erred in allowing $800 for purchase of timber, which was not required. The appellants assert that there were no quotations to support the measurements. They contend that there was no evidence to support the finding that the area was 183 square metres (made up of 168 square metres flooring and 8 square metres of stairs, with 7 extra metres). They contend that the measurement was as per their quotation, being 87.27 square metres on the ground flooring, including the first half of the stairs, plus 80.6 square metres of the first floor including the second half of the stairs plus 9% wastage. This, they contend, results in 183 square metres being required. 2. The appellants assert that the respondent was "trying to hide the actual measurements" measured by other quotations (in particular T Flooring), which would support the appellants' contention. 3. It was submitted in oral submissions before the Appeal Panel that the quotes did not show the true measurements and that the quotations are different from the measurements performed by the appellants. It was further submitted that the Tribunal ought to have preferred the measurements in the appellants' quotations. 4. The Tribunal makes clear the basis upon which the measurements were calculated. The calculation was open on the evidence. No error is identified and this ground of appeal accordingly fails. Determination of the Leave Question 1. We are not satisfied that the appellants have established Grounds 1 – 7. The Tribunal made findings that it was entitled to make on the evidence. However, even if the appellants had established one or more of Grounds 1-7, we would not have granted leave to appeal. This is because this appeal does not involve an issue of principle or a question of public importance, because there is no reasonably clear injustice and the Tribunal has not gone about its fact-finding process in such an unorthodox manner that it is likely to have produced an unfair result: Collins v Urban at [84] Determination of the Appeal - Ground 8 1. The appellants contend that the Tribunal did not indicate the amount of time needed for the hearing, leading to an inequitable decision and depriving the them of the opportunity for a complete hearing. The appellants assert that they had to leave the hearing before it was completed. They contend that "had to leave the hearing" … "due to other businesses". 2. In oral submissions before the Appeal Panel the appellants contended they had to leave early because they had other things to attend to. They asserted that the Tribunal didn't have enough time to hear what they had to say. They contended that because they had to leave early the Tribunal member could not have heard all of the evidence. They accept that they did not seek to put anything else they wished to say in writing so that all of their points could be addressed. They also accept that they did not seek an adjournment. 3. If established, an unreasonable failure to allow a party sufficient time to complete their case may constitute a failure to accord procedural fairness. 4. The duty to accord procedural fairness arises because the power involved is one which may "destroy, defeat or prejudice a person's rights, interests or legitimate expectations": Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598; 97 ALR 177; (1990) 65 ALJR 167; 21 ALD 651. The content of the duty in a particular case depends upon the circumstances of the case and the nature of the power being exercised: Kioa and Ors v West [1985] HCA 81; (1985) 159 CLR 550 at 585 and at 612-615; (1985) 62 ALR 321; (1986) 60 ALJR 113; 9 ALN N28. 5. In Collins v. Urban [2014] NSWCATAP 17, the Appeal Panel comprised of Wright J, President, S Westgarth, Deputy President and M Harrowell, Principal Member, commencing at [40], held in respect of procedural fairness in hearings before the Tribunal, that s 38(5)(c) of the NCAT Act requires that the Tribunal "take such measures as are reasonably practicable ... to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": Collins at [40]. 6. Procedural fairness does not require the Tribunal to accommodate the appellants' desire to leave the hearing at a particular time. The appellants were notified of the hearing, they attended it and they could have remained at the hearing longer rather than leave to attend to other business if they had additional evidence to give or submissions to make. In any event the appellants did not put before the Appeal Panel any material that, had it been put to the Tribunal below, might have affected the outcome. 7. The Appeal Panel is not satisfied that the appellants have demonstrated that they were denied procedural fairness or that giving further evidence or making further submissions would have changed the outcome of the hearing. This ground of appeal also fails. Orders 1. As the appellants have not established any of their grounds of appeal and, even if they had established one or more grounds requiring leave, we would not have granted leave, we make the following orders: 1. The application for leave to appeal is dismissed. 2. The appeal is otherwise 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: 30 July 2015