Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Quinn v Montgomery Homes Pty [2015] NSWCATAP 193 Hearing dates: On the papers Date of orders: 09 September 2015 Decision date: 09 September 2015 Jurisdiction: Appeal Panel Before: S Higgins, Principal Member K Rosser, Senior Member Decision: 1. The application of Montgomery Homes to rely on further evidence in this appeal is refused. 2. Mr Quinn's application for leave to appeal is refused. 3. Mr Quinn's appeal is dismissed. 4. Montgomery Home's application for costs is dismissed. Catchwords: ADMINISTRATIVE LAW – internal appeal - appeal on a question of law – adequacy of reasons – Tribunal failed to expressly state its findings on specific aspects of the appellant's claim – whether appellant may have suffered a substantial miscarriage of justice Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Collins v Urban [2014] NSWCATAP 17 Sydney Supermarkets PTY Ltd v Xu [2009] NSWADTAP 28 Category: Principal judgment Parties: Jason Quinn (appellant) Montgomery Homes Pty Ltd (respondent) Representation: Counsel: S J McMahon for the appellant Solicitors: Wayne Hodgins Solicitors for the appellant Wide Legal for the respondent File Number(s): AP 14/58735 Decision under appeal Court or tribunal: Consumer and Commercial Division of the Tribunal Citation: (unreported 12 November 2014) Date of Decision: 12 November 2014 Before: N Corey, Tribunal Member File Number(s): HB 14/34442 HB 14/42450 Reasons for decision Introduction 1. The appellant homeowner, Jason Quinn (Mr Quinn), seeks to appeal a decision of the Tribunal, in the Consumer and Commercial Division, concerning pre-construction work undertaken by the respondent builder, Montgomery Homes Pty Ltd (Montgomery Homes). The pre-construction work involved the preparation of drawings and lodgement of a development application for a dwelling on Mr Quinn's land, which was a sloping site. Mr Quinn wanted to build a full two-storey brick home of around 350m2 with a 5 metre or less set back from the road. 2. The Tribunal had two applications before it for determination. Montgomery Homes had lodged an application on 7 July 2014 seeking an order that Mr Quinn pay it an amount of $11,284 being the amount that remained outstanding for the work the company undertaken as per their agreement (Application File No HB 14/34442 or Montgomery Homes' claim). Mr Quinn lodged an application, by way of counterclaim, on 26 August 2014, seeking an order that he did not have to pay Montgomery Homes $11,284 and an order that Montgomery Homes refund the $7,500 deposit he had paid (Application File No HB 14/4250 or Mr Quinn's claim). 3. On 12 November 2014, the Tribunal determined both applications. 4. In regard to Montgomery Homes' claim the Tribunal made the following order: "1. JASON QUINN …. is to pay MONTGOMERY HOMES PTY LTD …. The sum of $11284.00 immediately." 1. In regard to Mr Quinn's claim, the Tribunal ordered that the application should be dismissed. 2. In his Notice of Appeal, Mr Quinn identified the orders he sought to appeal as those relating to the Montgomery Homes' claim. However, on the front page of his Notice of Appeal Mr Quinn identified both file numbers as being the orders the subject of his appeal. Further, on page 4 of his Notice of Appeal, Mr Quinn identified the following as the orders (decisions) he thought the Tribunal should have made given the evidence/documents presented at the hearing: "1. That Jason Quinn does not have to pay to Montgomery Homes Pty Ltd the amount of $11284.00. 2. That Montgomery Homes Pty Ltd pay to Jason Quinn the amount of $7500.00 within 21 days, such payment being the deposit paid by Jason Quinn to Montgomery Homes Pty Ltd on or about 20 July 2012.' 1. In light of this, we have approached the appeal as one in which Mr Quinn seeks to appeal the orders in his claim before the Tribunal and also the orders in the Montgomery Homes' claim. That is, Mr Quinn in effect contends that the Tribunal should have dismissed Montgomery Homes' claim and made the orders he sought in his claim. Internal appeals 1. The orders of the Tribunal in respect of each claim are internally appealable decisions of the Tribunal (see ss 27(1) and 80(1) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act)). 2. Subs 80(2), of the NCAT Act provides that an internal appeal may be made against such decisions as of right on any question of law, or with leave of the Appeal Panel, on any other grounds. Mr Quinn did not raise any questions of law in his Notice of Appeal, but sought leave to appeal, which is subject to the requirements of cl 12 of sch 4 of the NCAT Act as the decisions are of the Tribunal in the Consumer and Commercial Division. That clause provides as follows: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In his Notice of Appeal, Mr Quinn indicated that he did not object to his appeal being dealt with on the papers. In its Reply to Appeal, Montgomery Homes also indicated that it did not object to the appeal being dealt with on the papers. Material before the Appeal Panel 1. In accordance with directions made by the Appeal Panel on 22 January 2015, Mr Quinn and Montgomery Homes filed and served written submissions and material on which they relied for the purpose of this appeal. Montgomery homes also filed and served a copy of the material it had filed before the Tribunal below and two further statements. These were a statement of John Wallace and a statement of Simon Campbell. Both men had given evidence before the Tribunal below and Mr Quinn objected to their tender in this appeal. In his Notice of Appeal Mr Quinn made reference to the evidence he had provided to the Tribunal below, but did not provide a copy for the purpose of this appeal. However that material has been considered in order to finalise this appeal. 2. We have considered all the material that is before us and for the reasons set out below we have dismissed the appeal. Background and the claims of the parties before the Tribunal below 1. Following a meeting with Mr John Wallace, a Sales Executive of Montgomery Homes, on or about 20 July 2012, Mr Quinn paid a commencement fee of $7,500 to Montgomery Homes. On 8 August 2012, Mr Quinn signed a Montgomery Homes "Proceed to Drafting" agreement and on 19 November 2012 he signed a Montgomery Homes "Lodging to Regulatory Bodies" agreement. 2. In late January or early February 2013, Montgomery Homes lodged a development application to the City of Newcastle for Mr Quinn's sloping site. On 14 February 2013, the City of Newcastle wrote to Mr Quinn advising that an inspection of the site had been carried out and listed a number of matters that required his attention. Street frontage, or setback was one of the matters listed. 3. On 19 September 2013, Montgomery Homes wrote to Mr Quinn stating that it appeared his job had stalled at Council and the company was left with having to decide whether he wanted to proceed or cancel his planned project with the company. Montgomery Homes went on to explain what their costs had been to date and the amount that remained owing by Mr Quinn (i.e. $11,284). Mr Quinn was requested to advise the company, by 30 September 2013, if he wished to cancel his project. 4. As we have already noted, in July 2014, Montgomery Homes lodged an application with the Tribunal seeking an order that Mr Quinn pay it an amount of $11,284 being the amount that remained outstanding for the work the company undertaken as per their agreement. 5. Montgomery Homes' claim was based on the "Proceed to Drafting" Agreement and the "Lodging to Regulatory Bodies" Agreement signed by Mr Quinn. Each agreement was part of a larger tender document. In signing the "Proceed to Drafting" Agreement Mr Quinn acknowledged that the tender document accurately reflected his requirements relating to the drafting of plans. In signing the "Lodging to Regulatory Bodies" Agreement Mr Quinn confirmed that the tender document was complete & correct and that he understood no further changes could be made by Montgomery Homes, but changes might be necessary due to Regulatory requirements. 6. On 15 August 2014, the City of Newcastle wrote to Mr Quinn and advised that his development application had been determined by a refusal on a number of grounds, which included street frontage or setback. 7. Shortly after this, on 26 August 2014, Mr Quinn lodged his application with the Tribunal seeking an order that he did not have to pay Montgomery Homes $11,284 and an order that he be repaid his deposit. Mr Quinn's application was based on the following: 1. an alleged oral guarantee by John Wallace of Montgomery Homes that they could build a home to Mr Quinn's requirements (i.e. a full two-storey brick home of around 350m2 with a 5 metre set back or less); 2. an alleged representation by Mr Wallace that they were the sloping site specialists; 3. an alleged representation by Montgomery Homes that they "build with professionalism, attention to detail, professional approach, have a wealth of experience & knowledge, architectural design homes, experts in the field & problem free process", when they did not have the acceptable care and skill or technical knowledge; and 4. an alleged failure by Montgomery Homes' failure to provide him with a detailed cost agreement. 1. Mr Quinn asserted his development application had been rejected on the grounds of the proposed setback in the plans drawn by Montgomery Homes which did not comply with the requirements of the Council's Development Control Plans or the Local Environment Plans. Mr Quinn asserted Montgomery Homes should have been aware that these Plans did not allow for a 5 metre or less setback and advised him accordingly before any drawings were commenced. 2. In his application before the Tribunal below, Mr Quinn made reference to the following provisions of the Australian Consumer Law (Cth): 1. S 18(1) - misleading or deceptive conduct - i.e. a person must not, in trade or commerce, engaged in conduct that is misleading or deceptive or is likely to mislead or deceive, 2. S 29 – false and misleading representations about goods and services – i.e. a person must not, in trade or commerce, make a false or misleading representation that the services are of a particular standard, quality, value or grade, 3. S 60 - guarantee as to due care and skill - if a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill. Mr Quinn's Notice of Appeal 1. In his Notice of Appeal, Mr Quinn asserted that the decision was not fair and equitable and the decision was against the weight of evidence. 2. In his written submissions, filed on 23 February 2015, counsel for Mr Quinn noted that the "short facts" of the matter were set out in the Tribunal's reasons for decision. He then noted some additional facts by reference to his tender bundle before the Tribunal and the transcript of the hearing. We note that the transcript was prepared, on the instructions of Mr Quinn's solicitor, from the audio recording of the hearing. Montgomery Homes has relied on the same transcript for the purpose of this appeal. 3. Counsel for Mr Quinn reiterated the grounds of appeal as contained in the Notice of Appeal and at paragraphs 4 and 5 of his submissions said the following: "4. The importance of identifying questions of law cannot be discounted, Quinn states the questions of law to be determined by the Appeal Panel are: a. Did the Tribunal err in determining that as a result of Quinn's experience as a real estate agent he would have knowledge of development applications? b. Did the Tribunal err in failing to determine the question of whether the verbal representation was made by Wallace? c. Did the Tribunal err in failing to determine the question of Montgomery Having the requisite knowledge of the various Council requirements in relation to set back's? d. In relation to the 3 questions above did the Tribunal err in failing to give proper reasons? In effect the questions above ask if the Tribunal made a decision that was wholly against the weight of evidence and in doing so did it fail to give proper consideration to the evidence before it. Further they ask did the Tribunal take notice of a fact without any reasonable basis for that fact found in evidence. 5. There are 3 areas of complaint the subject of the Appeal in which Quinn submits the Tribunal at first instance has erred. As a result of these 3 errors it is respectfully submitted the determination made by the Tribunal is fundamentally flawed." 1. At paragraph 9 of counsel's written submissions it was submitted the Tribunal had "erred on 3 central points in relation to questions of fact which led the Tribunal to fall into errors of law." The "3 central points" were identified in paragraph 10 of the submissions as being: 1. a finding that "as a result of his experience in employment as a real estate agent", Mr Quinn "would have knowledge of the risk of a development application being rejected." 2. a failure to find "that verbal representations were made by Wallace at a meeting on site with Quinn", or "if it found the verbal representation was made that because of the first complaint [i.e. (a) above] that it could not be relied upon." 3. "Council requirements for set back's [sic] and what Montgomery Homes knew, or should have known prior to entering into the drafting agreement and how this effected the "reasonable expenses" incurred by Montgomery Homes pursuant to the drafting agreement." 1. Further argument and explanations in regard to each of these findings, or lack thereof were also contained in the submissions. 2. On, 7 April 2015, counsel for Mr Quinn filed and served written submissions in reply to the submissions filed and served by the solicitor for Montgomery Homes. At paragraph 6 of his submission, Mr Quinn said: "The Appellants complaint is not one as to a failure to give proper reasons it is of the failure to give proper reasons for a decision and the decision making process compounded by findings of fact that were unsupported on the evidence. … The Tribunal at first instance failed to make certain findings of fact and failed to give any reasons why no such finding was made or how it would materially effect the final determination. …" 1. Objection was also taken to the Appeal Panel having regard to the additional affidavits filed by Montgomery Homes in this appeal. 2. As neither the Notice of Appeal - nor counsel's written submissions questioned the findings of the Tribunal in regard to the amount that had been expended by Montgomery Homes in preparing drawings for Mr Quinn, we have not considered any further the findings of the Tribunal in this regard. Montgomery Homes' Reply to Appeal 1. In its Reply to Appeal, the solicitor for Montgomery Homes opposed leave being granted to Mr Quinn to appeal and in this regard submitted: "A. The decision of the Tribunal was fair and equitable. B. The decision of the Tribunal reflected the weight of evidence. C. No new significant evidence has arisen. D. No question of law is being appealed." 1. Attached to the Reply was a copy of the evidence Montgomery Homes had tendered before the Tribunal (i.e. a statement of Simon Campbell dated 10 September 2014 and a statement of John Wallace dated 7 July 2014). 2. In written submissions filed on 24 March 2015, by the solicitor of Montgomery Homes it was contended that Mr Quinn's appeal did not raise any questions of law. It was submitted that the Tribunal's decision was consistent with the evidence before it and the appeal should be dismissed as Mr Quinn had failed to demonstrate he had suffered a substantial miscarriage of justice as he had failed to explicitly outline how his case would have been different had the asserted errors of fact been differently decided. The submissions went on to point to the evidence before the Tribunal concerning the alleged oral guarantee by Mr Wallace, Montgomery Homes' alleged knowledge of Council requirements and the alleged knowledge of Mr Quinn of such requirements due to his real estate experience. These submissions were primarily by reference to what was contained in the transcript of the hearing. 3. It was also submitted, on the reasoning of the Appeal Panel in Collins v Urban [2014] NSWCATAP 17, at [57], that the reasons provided by the Tribunal were proper in their content, detail and proportionality to the complexity of the subject matter of the proceedings and facilitation of just, quick and cheap resolution of proceedings. The decision of the Tribunal 1. The Tribunal gave short written reasons for decision in regard to both applications as follows: "The applicant builder seeks payment of the excess costs incurred by it with respect to preparation and lodgement of a development application to Newcastle Council with respect to the respondent's premises at Tighes Hill. The builder asserts that it proceeded to draft the necessary plans and prepare all other relevant information for the purpose of the DA pursuant to written instructions/agreement from the homeowner. The homeowner paid an initial deposit to the builder of $7500. The agreement to proceed to drafting dated 8 August 2012 contained the following clause: "I/We are aware that the costs of the works above may be more than our commencement fee and therefore the difference between our commencement fee and these costs may be payable by me/us if we do not proceed to signing Contracts." A further agreement dated 19 November 2012 headed Final Tender and Plans Agreement had a similar clause. The homeowner asserts that he entered the agreement on the basis of the verbal guarantee from Mr Wallace of the builder that approval would be obtained from council for a full brick home to be built at the site with a maximum setback of no more than 5 metres. The evidence of Mr Wallace is that there was no guarantee that Council would approve the application on that basis but that such an application was made having regard to many other houses in the Street having setbacks of two metres or so. The homeowners asserts that he was misled by the builder regarding the prospects of having the application approved and further that it should have been obvious to the builder that there was no way having regard to Councils requirements that the application as presented was ever going to be approved. The homeowner therefore says that the builder should have told him from the start that it was not possible to obtain approval for such an application. The builders evidence is that Council LEP requirements are not inflexible and given the other houses in the street that were built with set backs considerably less than 5 metres it was not unreasonable to pursue such application on the basis it was submitted. I am not satisfied that the homeowner having regard to his experience as a real estate agent for considerable number of years would not have been aware of the risk of such an application being rejected. I am satisfied that the costs incurred by the builder as particularised have been reasonably incurred in pursuance of the application pursuant to the agreement with the home owner and that that written agreement entitles the builder seek reimbursement of those costs over and above the $7500 deposit paid. The homeowners cross application that they should be ordered not liable to this amount should be dismissed." (emphasis in bold added) Consideration 1. There are primarily three issues for determination in this appeal. These are: 1. whether we should permit the tender of fresh evidence in this appeal; and 2. whether the grounds relied on by Mr Quinn raise questions of law; and 3. in the event no questions of law arise, whether leave to appeal should be granted on the grounds relied on by Mr Quinn. Fresh evidence 1. As we have noted the additional statements of John Wallace and Simon Campbell are in effect additional or further evidence about particular matters recorded at pages 11, 28, 30, 31, 32 and 34 in the transcript of their evidence before the Tribunal below. 2. In our view, they do not assist the Appeal Panel in dealing with the principal issues in this appeal. The statements if allowed to be accepted into evidence would constitute fresh evidence, which in our view, is not warranted in this case. The parties, including Mr Quinn were given ample opportunity to put all relevant matters before the Tribunal below. Questions of law 1. As we have already noted, subs 80(2) of the NCAT Act provides that an appeal can be made on a question of law as of right (i.e. no leave of the Appeal Panel is required). A failure to give adequate reasons is an error of law. 2. In Collins v Urban [2014] NSWCATAP 17, at [47], the Appeal Panel noted s 62 of the NCAT Act establishes a regime under which the Tribunal is not under a statutory obligation to provide reasons for decision unless requested to do so. However, in many cases, as in this case, the Tribunal does prepare and give reasons for decision without a request to do so from parties. The Appeal Panel said s 62 did not exhaustively define when there is a duty to give reasons for decision or the extent of the duty. The Appeal Panel accepted that s 62 did no more than confirm existing law as it applied to the Tribunal: see Sydney Supermarkets PTY Ltd v Xu [2009] NSWADTAP 28 and Khan v Kang [2014] NSWCATAP 48 at [40-46]. And at [57], the Appeal Panel noted the following propositions derived from the authorities in regard to the adequacy of reasons: " … (2) the content and detail of the reasons for decisions to be provided 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; (3) the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46] per Basten JA; (4) not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] per Basten JA. 1. At [60], the Appeal Panel noted the Tribunal's obligation under subs 36(4) of the NCAT Act to facilitate the resolution of the issues between the parties 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. 2. In Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, at 443, Meagher JA having set out the purpose of providing reasons for decision said the following in regard to the content of adequate reasons: "… reasons need not necessarily be lengthy or elaborate … Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to the relevant evidence. … Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. … Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. …" 1. Mr Quinn argues the Tribunal erred in failing to give "proper reasons" in three matters. The first matter relates to the Tribunal's finding that Mr Quinn's experience as a real estate agent meant he would have "knowledge of development applications". In our view, the alleged error does not raise a question of law, in particular an error going to the failure to provide adequate reasons on which a finding of this nature was made. The alleged error, if any, is one of fact and not law as contended by Mr Quinn. 2. The other two matters concern the Tribunal's alleged failure to determine whether Mr Wallace made a verbal representation as alleged by Mr Quinn and whether Montgomery Homes had the requisite knowledge of Council's requirements in relation to setbacks. As noted above, both matters formed the foundation of Mr Quinn's claim. 3. The "verbal representation" alleged to have been made by Mr Wallace was the verbal guarantee from Mr Wallace that Montgomery Homes could obtain approval from the council for the construction of a home to Mr Quinn's specification on his site. At paragraph 3 and 4 of its reasons for decision, the Tribunal set out the evidence of the parties in regard to this issue. While not stated expressly, on the basis of the Tribunal's findings in the last sentence of paragraph 4 in its reasons for decision, it is evident that the Tribunal was not persuaded by Mr Quinn's evidence as to the content of the alleged verbal guarantee, or that he had relied on it even if it were to be established. That is, it preferred the evidence of Mr Wallace. 4. We make a similar finding in regard to the Tribunal's reasoning in so far as it related to Mr Quinn's claim of alleged misrepresentation by Montgomery Homes and the alleged breach of the consumer guarantee that it services would be provided with acceptable skill and care. 5. We agree that in its reasons for decision the Tribunal has treated these aspects of Mr Quinn's claim in a brief manner and did not fully disclose the basis of its findings that the claim should be dismissed. However, having regard to the transcript of the proceedings and the material relied on by Mr Quinn to support his claim, in our view, the Tribunal in its reasons for decision adequately set out the basis on which Mr Quinn had made his claim and why it had failed. 6. The onus was on Mr Quinn to prove his claim before the Tribunal below and in doing so to provide the Tribunal with sufficient relevant and probative evidence. This, in our view, as concluded by the Tribunal, Mr Quinn failed to do. His only direct evidence was a short three paragraph letter addressed "to whom it may concern" and his oral evidence during the hearing. The letter was dated 23 October 2014 and it made no mention of the three page statement Mr Wallace had made on 7 July 2014. 7. Mr Quinn had also tendered into evidence three letters, addressed to him, from the City of Newcastle, dated 14 February and 8 and 15 August 2013 and a copy of page 8 of the Newcastle Development Control Plan. This correspondence and page 8 of the Plan were consistent with the evidence of Mr Wallace, namely the council setback rules were a guide and variations would be considered depending on the circumstances. There was a clear inference to be drawn from the material that Mr Quinn was well aware of the Plan and the development application processes. 8. Mr Quinn's other claims against Montgomery Homes were closely linked to his breach of oral guarantee claim. The Tribunal also dealt with this aspect of Mr Quinn's claim at paragraph 3 and 4 of its reasons for decision. Again the onus was on Mr Quinn to prove these claims and in our view he failed to place sufficient evidence before the Tribunal to support his claim other than by way of assertion. He asserted Montgomery Homes had breached the consumer guarantee that it would provide its services with acceptable care and skill or technical knowledge and that it had falsely represented it was "the sloping sight specialists." Mr Quinn did not identify in which respect the services provided by Montgomery Homes under the "Proceed to Drafting" agreement or the "Lodging to Regulatory Bodies" agreement had been provided without acceptable care and skill or technical knowledge. The evidence was that they had drafted plans in accordance with his instructions and also lodged his development application in accordance with his instructions. Mr Quinn's only grievance was that they were drafted and submitted without reference to the relevant regulatory requirements. Mr Wallace's evidence, as noted in paragraph 4 of the Tribunal's reasons for decision was that these regulatory requirements were flexible and given the circumstances it was not unreasonable to pursue the development application. We note from the statement of Mr Wallace that it was Mr Quinn who decided not to pursue it further. 9. In support of his assertion of a false representation Mr Quinn submitted copies of what appear to be promotional flyers of Montgomery Homes. He did not explain when he acquired these flyers and the circumstances in which they were acquired. We note the copies he provided to the Tribunal below were dated 2014, which was long after he had signed the agreements with Montgomery Homes. 10. For the reasons already stated, while the reasons for decision of the Tribunal in regard to Mr Quinn's breach of a statutory warranty claim and misrepresentation claim are brief, in our view they adequately set out the basis on which Mr Quinn had made these claims and why they had not been established. 11. Accordingly, we find Mr Quinn has failed to establish that the Tribunal erred in law as contended. Leave to appeal 1. In Collins v Urban, the Appeal Panel considered the requirements of cl 12 of sch 4 of the NCAT Act. At [76] and [79] the Appeal Panel said: "76 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. … 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 …" 1. At paragraph 3 of his written submissions, Mr Quinn submitted the Tribunal: 1. made a decision which was wholly against the weight of evidence before it; 2. failed to give proper consideration to the evidence before it; 3. ignored or did not give sufficient weight to the evidence before it; 4. took notice of a fact without any reasonable basis for that fact found in the evidence; 5. took notice of a fact on expert evidence from a witness who had no specialised training, knowledge or experience and which opinion was not substantially based on that specified knowledge. 1. The only factual finding challenged by Mr Quinn is the Tribunals finding that it was not satisfied that Mr Quinn "having regard to his experience as a real estate agent for a considerable number of years would not have been aware of the risk of such an application being rejected." 2. In our view, this finding was open to the Tribunal on the evidence before it. 3. In his statement dated 7 July 2014, Mr Wallace said: (13) During the period I was dealing with [Mr Quinn] he informed me that he had been in real estate for approximately 15 years and that he had recently tried to develop a large unit block at Kurri Kurri but it was rejected due to size issues. With his background in real estate and property development [Mr Quinn] would be aware that there are often many council issues when getting approvals.' 1. Mr Quinn did not question this assertion in his letter to the Tribunal below. 2. In his evidence, as recorded on page 30 of the transcript, Mr Wallace is recorded as having said the following: "My comment in relation to that would be Mr, Mr Quinn would know quite well. He's been in real estate 15, 20 years. He's been involved in developments. He has a full understanding that council guidelines are guidelines. They are not black and white. Virtually no, no policy in council is black and white. We go outside council guidelines every day with every customer. It is a balancing act of what council will let us get away with in relation to each job. So while some jobs may get away with a setback other jobs will get away with the height restrictions. Other jobs will get away with another aspect. We don't know until we get to council which aspects council will pick up and then we negotiate with the customer and council as to the, the happy medium. That happens with every customer so, and Jason would be aware of that, having his extensive knowledge in real estate that that is the case that councils are not black and white. Its what you think you can get away with. … 1. At page 31, Mr Wallace is also recorded as saying: "But it's never black and white. It's never been and Mr Quinn's fully aware that its not black and white. He's been involved in a multiunit development himself so he knows full well about council leniency, looking at guidelines, looking at things because it's not black and white." 1. This was followed by the following interchange: Quinn: Yes, absolutely. What development? Where is my unit development? If you know so much … Wallace: You were building a multiple unit site. You told me personally. Quinn: There's no multiunit at … so don't make up stories Wallace Member What's your profession Mr … Quinn: It's real estate and we just sell mainly existing houses so they've already been built. So I don't go through this process. …" 1. At page 39, the Tribunal Member is recorded as saying to Mr Quinn that he must have had some awareness, to which he responded he had none because he mainly sells houses. Mr Quinn is also recorded as stating that Mr Wallace was also a real estate agent. 2. Neither Mr Wallace nor Mr Quinn gave evidence as experts. Their evidence was based on what they knew from their own experiences. It was for the Tribunal to assess their respective evidence and positions. It clearly preferred that of Mr Wallace. 3. At the same time we re-iterate that the onus was on Mr Quinn to prove, on the balance of probabilities, the alleged representation/guarantee by Mr Wallace and that he relied on the representation. 4. Accordingly, we find that Mr Quinn has failed to establish any of the matters set out in paragraph 54 above; in particular its finding that it was not satisfied that Mr Quinn, having regard to his experience as a real estate agent for a considerable number of years would not have been aware of the risk of his development application being rejected. 5. On this basis, Mr Quinn has failed to establish any of the grounds set out in cl 12(1)(a) to (c) of sch 4 of the NCAT Act. Hence we are not satisfied that he may have suffered a substantial miscarriage of justice and his application for leave to appeal must be refused. Costs 1. In its written submissions, Montgomery Homes submitted that the appeal should be dismissed with costs. 2. In Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120, at [7 to 9] the Appeal Panel held that the applicable provision in regard to cost orders in appeal proceedings arising from a was s 60 of the NCAT Act. That is, s 60 applied even where the decision the subject of the appeal was a decision of the Consumer and Commercial Division. That is, rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) did not apply: see also Reskella v Xiang [2015] NSWAATAP 23. 3. Under s 60 of the NCAT Act, the general rule is that each party is to pay their own costs: see subs 60(1). However, subs 60(2) of the NCAT Act gives the Tribunal (including the Appeal Panel) a discretion to award costs if "satisfied that there are special circumstances warranting an award of costs." Subs 60(3) of that Act specifies the matters to which the Tribunal may have regard when considering whether or not special circumstances exist. That subsection is in the following terms: 60 Costs … (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. 1. Although Mr Quinn has not succeeded in his appeal, in our view, this alone is not sufficient to constitute "special circumstances" warranting an order for costs in favour of Montgomery Homes. 2. In the absence of any other matters having been raised by Montgomery Homes we find that there is no basis to warrant the making of an order for costs. Conclusion and Orders 1. For the reasons set out above, Mr Quinn has failed to establish an error of law in the Tribunal's reasons for decision. Nor has he established a ground for leave to appeal under cl 12(1) of sch 4 of the NCAT Act. And on this basis his appeal must be dismissed. 2. As noted above, we have also refused the application of Montgomery Homes to adduce further evidence. 3. On the basis of our findings we order: 1. The application of the Montgomery Homes to rely on further in this appeal is refused. 2. Mr Quinn's application for leave to appeal is refused. 3. Mr Quinn's appeal is dismissed. 4. Montgomery Home's application for costs is 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: 09 September 2015