Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Thiessen v Poolsurf QLD Pty Ltd [2015] NSWCATAP 250 Hearing dates: 2 November 2015 Date of orders: 25 November 2015 Decision date: 25 November 2015 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President S Thode, Senior Member Decision: (1) Leave to appeal granted. (2) Appeal upheld. (3) The orders made on 10 July 2015 in applications HB 15/03370 and HB 15/10573 are set aside. (4) Applications HB 15/03370 and HB 15/10573 are remitted for rehearing. (5) The parties are at liberty to file and serve further evidence (in addition to the evidence previously filed and served) subject to complying with directions made on the remittal. Catchwords: Leave to appeal – decision not fair and equitable – against the weight of the evidence. Legislation Cited: Civil and Administrative Tribunal Act NSW 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Thiessen (Appellant) Poolsurf QLD Pty Ltd (Respondent) Representation: Appellant: self-represented Respondent: G Burton (Director) File Number(s): AP 15/46800 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 10 July 2015 Before: K Holwell, General Member File Number(s): HB 15/03370 and HB 15/10573 reasons for decision Introduction 1. This appeal arises out of a decision of the Consumer and Commercial Division published on 10 July 2015. The notice of appeal was filed with the Tribunal on 11 August 2015. The decision at first instance (which we will refer to as the Decision) dismissed the appellant's application and, in addition, ordered the appellant to pay to the respondent the sum of $1,200.00. The applicant below is the appellant. 2. The basic facts as recorded in the Decision are not disputed. The appellant engaged the respondent to pebblecrete a swimming pool which had been constructed by another builder. The work was done in November 2014. The appellant alleged that during the pebblecreteing work the pool's coping tiles were affected by acid which resulted in damage to those tiles in that they were discoloured. The appellant asserts that that damage was caused by the respondent during the course of the respondent's performance of the pebblecreteing work. 3. The appellant claimed the sum of $6,341.80 (comprising $1,391.80 for replacement tiles and $495.04 for labour). Other claims referred to in the original application were not pressed by the appellant. 4. The Decision concluded that the evidence was "too conflicting" and that the applicant could not prove "on balance that the damage to the coping tiles was solely caused by the work performed during the pebblecreteing". The appellant's application was therefore dismissed. As stated above, the appellant was also ordered to pay to the respondent the sum of $1,200.00 being the amount then unpaid in respect of the work performed by the respondent. 5. The appellant seeks an order that the respondent repairs the damaged tiles or pay to have them replaced. Grounds of appeal 1. Decisions of the Consumer and Commercial Division may be the subject of appeal on a question of law (see s 80 of the Civil and Administrative Tribunal Act NSW 2013 (the Act)) or with leave on other grounds. Clause 12 of Sch 4 of the Act provides that an Appeal Panel may grant leave under s 80(2)(b) of the Act 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 new evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. Here, the appellant seeks leave and relies upon grounds (a) and (b), namely that the decision was not fair and equitable and was against the weight of evidence. 2. The appellant submits that the decision was not fair or equitable because all of the appellant's evidence was not taken into account. The appellant referred to a video demonstration of the "acid/water" mixture used by the respondent on a test tile and the appellant stated that the test tile showed identical damage to the coping tiles around the pool, which had allegedly occurred during the respondent's pebblecreteing. 3. The appellant also submitted that the Tribunal gave undue weight to the evidence of the respondent and in particular to the evidence contained in the video produced by the respondent. 4. The appellant referred to photographs which the appellant produced at the hearing. Those photographs allegedly were taken on the date and time indicated on each photograph. The appellant submitted that the photographs showed the colour of the tiles prior to and after the respondent's acid wash had washed the pebblecrete. The appellant argued that the Tribunal had not given appropriate weight to this evidence. 5. The appellant submitted that he had not been given a chance to dispute the respondent's video as it was supplied after the "document exchange period". The appellant submitted that the video produced by the respondent did not accurately show the way the pool had been acid washed because in fact the respondent had used a high pressure cleaner. 6. The appellant further submitted that the Tribunal did not understand the evidence and that the Decision reflects the Tribunal's misunderstanding of certain aspect of the evidence. The grounds of appeal referred to the following matters which the appellant submitted were not understood correctly by the Tribunal: 1. In paragraph 10 of the Decision the Tribunal stated that the respondent's evidence was that tarpaulins were laid over the work site and "the only work applied to the coping tiles was water blasting following the end of the job". The appellant states that tarpaulins were in place initially but were removed when the respondent commenced to acid clean the pool. 2. In paragraph 13 of the Decision the Tribunal referred to the evidence of Daniel Suto (the supplier of the tiles). The appellant states that the evidence of Mr Suto was that if the discolouration was not caused by "concrete dust" then it could only be the case that the tiles were damaged by acid/water cleaning during the pebblecreteing. However, the Tribunal found that Mr Suto qualified his opinion by stating he could not decide what the marks on the tiles were caused by. 3. The appellant submitted that the Tribunal did not understand the evidence of Mr Pollard. In paragraph 14 of the Decision the Tribunal states that Mr Pollard asked the question whether the tiles were acid washed during the works. The Tribunal referred to the evidence of the respondent that the acid washing was only applied to the pebblecrete work and not to the tiles. The appellant refers to the fact that Mr Pollard had recommended to the appellant that a sample tile be tested and that the appellant had in fact undertaken such a test producing the same damage as allegedly caused by the respondent. 4. The appellant referred to paragraph 16 of the Decision in which there is reference to the evidence of Mr James Carr (who represented the manufacturer of the sealer). The appellant submitted that the Tribunal had not read Mr Carr's letter. 5. The appellant referred to paragraph 20 of the Decision in which the Tribunal made reference to the evidence of Olga de Marco in which Ms de Marco apparently stated that it was unfortunate that a harsh cleaner had been used. The appellant's submission is that Ms de Marco was in fact referring to the respondent's use of acid/water and that it was a mistake for the Tribunal to conclude that Ms de Marco was suggesting another cause of damage as suggested by the Tribunal. 1. The appellant's further ground of appeal was that there was overwhelming evidence produced by the appellant demonstrating on the balance of probabilities that the damage to the tiles was caused by the respondent. The appellant submitted that the respondent had "one company testimony" which was supplied by a company that buys tiles from the respondent and one video. This was to be compared with nine pieces of evidence produced by the appellant. The appellant then listed the evidence which he had relied upon namely: 1. A statement from Mr Aaron Fox who was the pool tiler. 2. An email statement from Daniel Suto who supplied the tiles. 3. A letter from the manufacturer of the product used to seal the tiles, namely Infuse. The appellant says that this letter states that the sealer could not have caused the damage. 4. A video demonstration of the acid/water mixture exposure on a test tile. 5. 13 photographs taken on the day that the work was undertaken. 6. A statutory declaration which indicated that the respondent had recently caused damage on another pebblecrete job. 7. An email from Richard Pollard stating that the tile sealer could not have been responsible. 8. An email from Chris McGrath from Australian Tile and Stone Restoration commenting on acid damage. 9. The "tiles with the test acid/water mix". 1. In written submissions and at the hearing the appellant elaborated upon the grounds of appeal and the following paragraphs describe the further submissions of the appellant. 2. The appellant submitted that a video which the appellant produced had not been considered by the Tribunal. The appellant submitted that that video demonstrated that when the tiles were exposed to an acid/water mixture they were discoloured in the same way as the actual tiles around the swimming pool were discoloured and that such a test (as recorded in the video) demonstrated that the most likely cause of the discolouration was exposure to an acid/water mix. The Decision does not appear to make any reference to considering that video. 3. The appellant submitted that the video produced by the respondent purporting to demonstrate the way the pebblecrete is sprayed with acid was not an accurate depiction of what actually occurred. The appellant submitted that what in fact occurred was that the acid/water mix was blasted through a high pressure hose. 4. The appellant further submitted that the Tribunal was in error by considering the possibility that the tiles had not been correctly sealed because the tiles were not discoloured immediately prior to the commencement of the work by the respondents. In paragraph 8 of the Decision the Member poses the possible causes of the discolouration and one of those causes is the possibility that the tiles were not correctly sealed prior to the respondent's work being undertaken. The appellant's submission is that that possibility should have been discounted by reason of the fact that the tiles were not discoloured prior to the commencement of the work by the respondent. 5. The appellant submits that the photos which he took during the course of the pebblecreteing work ought to have been persuasive in demonstrating that the tiles were discoloured as a consequence of the respondent's work because the photographs progressively demonstrate discolouration during the course of the day on which the pebblecreteing took place (namely 21 November 2014). 6. The appellant submitted that in paragraph 9 of the Decision (which paragraph purports to describe the respondent's description of the manner in which the work was undertaken) there is no finding that the work was undertaken by "water blasting". In addition, the appellant submitted that in paragraph 10 of the Decision the Tribunal omitted to make a finding as to whether the tarpaulins had been removed during the cleaning process. The appellant submitted that he had given evidence that the tarpaulins had been removed. 7. The appellant submitted that the statements of Mr Suto had not been given appropriate weight. Mr Suto had supplied two emails and the effect of those two emails appears, according to the appellant, to have been that Mr Suto thought that the most likely damage was that the tiles had been exposed to acid. The appellant submitted that the Decision contained an error in paragraph 13 in stating that Mr Suto had qualified his opinion by saying that, as he had not tried to clean the tiles, he could not make an assumption or decision as to what the marks were caused by. However, the appellant's point was that Mr Suto still maintained that there were only two possible causes, one being hydrochloric acid and the other being cement residue. 8. The appellant further submitted that paragraph 14 of the Decision did not adequately deal with the evidence. That paragraph refers to the respondent's evidence that the acid washing was only done to the pebblecrete work and not to the tiles. However, the appellant submitted that he gave evidence that water blasting was carried out. 9. The appellant submitted that the evidence of Mr Fox had not been given adequate weight. Mr Fox was the person who laid the tiles prior to the commencement of the pebblecreteing work. 10. The appellant submitted that the Tribunal did not give adequate weight to the evidence of Mr Carr. 11. The appellant submitted that the conclusion made in paragraph 19 of the Decision that it was "clear that the coping tiles were not directly subjected to the use of acid during the pebblecrete job" was an unjustified conclusion. That conclusion appears from paragraph 19 to have been based upon the assumption that the work was performed as shown in the video and the Member concluded that, in those circumstances, it was hard to believe that all the tiles could have been completely affected by an acid wash of the pebblecrete below the tiles. The respondent's reply and submissions 1. The respondent has filed a reply and opposes the appellant's contentions. The respondent asserted that water blasting did not take place, nor was a high pressure hose used. The respondent submitted that the appellant was not present when the acid/water cleaning aspect of the work was undertaken. The respondent submitted that the cleaning was undertaken with an ordinary garden hose. 2. The respondent referred to a video which the respondent had provided as evidence at the first instance hearing. That video had been prepared for the purposes of the hearing to demonstrate how the work was undertaken. The video did not depict the actual work undertaken but was said to be a demonstration (filmed later) of the work as it was claimed by the respondent to have been undertaken. 3. The respondent drew attention to an email from Mr Suto (28 January 2015), in which Mr Suto stated that he could not make a decision as to what the marks on the tiles had been caused by. 4. The respondent referred to paragraph 10 of the Decision and submitted that the tarpaulins "are removed prior to the acid washing as they are not required due to the acid wash being done at the bottom of the pool". 5. The respondent submitted that the test undertaken by the respondent was not reliable because it did not correspond to the way the acid wash was performed. 6. The respondent disputed the contentions of the appellant and submitted that its work did not damage the appellant's tiles. Reply 1. The appellant made submissions in reply to the effect that he gave evidence that he was present during the later portion of the pebblecreteing work being undertaken and was there to observe that high pressure water blasting had been used. The decision at first instance 1. In order to assess the merits of the appeal it is relevant to consider the findings of fact which the Member at first instance made in the Decision. These are dealt with in the following paragraphs. 2. The Member found that there were "problems with damage and discolouration to the coping tiles around the pool" (paragraph 8) and that the issue for the Tribunal was to determine the cause of the damage. This was confirmed at the appeal hearing by both the appellant and the respondent. 3. The Decision referred to the respondent's video "showing the way the pebblecrete is sprayed with acid" (paragraph 9). The Decision referred to the respondent's claim that the acid wash was not applied above the tile band and that consequently the acid wash could not have come in to contact with the coping tiles above the tile band. However, there was no finding as to whether the respondent's claims as to the methodology used to undertake the acid wash was accepted. According to the appellant he had given evidence that the method of the wash involved the use of a high pressure hose or, as he sometimes called it "water blasting". 4. In paragraph 10 of the Decision the Tribunal referred the respondent's evidence that tarpaulins were laid over the work and the only work applied to the coping tiles was water blasting following the end of the job. This description of the respondent's evidence is inconsistent with the respondent's own contentions before the Appeal Panel. In its submission to the Appeal Panel the respondent states that a high pressure hose was never used and that the tarpaulins were removed prior to acid washing as they were not required due to the acid wash being done at the bottom of the pool. 5. In paragraph 13 of the Decision the Member summarised the evidence of Mr Suto. In paragraph 14 the evidence of Mr Pollard was summarised. In paragraph 15 the evidence of Mr Fox was summarised. In paragraph 16 and 17 the evidence of Mr James Carr was summarised. In paragraph 18 the evidence of Mr James was summarised. 6. In paragraph 19 the Member found that it was clear that the coping tiles were not directly subjected to the use of acid during the pebblecrete job. This conclusion appears to have been based upon accepting the accuracy of the video supplied by the respondent depicting the way the job was undertaken. However, there was no finding by the Member in express terms that the video accurately depicted the manner in which the job was undertaken. There was no finding with respect to the conflicting evidence of the appellant that a high pressure hose was used. Although we were not supplied with the appellant's evidence we were informed by the appellant that he gave evidence that he saw some aspects of the pebblecreteing work and that there was the use of a high pressure hose. Decision 1. An essential issue in this matter is the manner in which the work was undertaken. The appellant contended that a high pressure hose was used and alleged there was "water blasting". On the other hand the respondent disputed that allegation and produced a video which apparently demonstrated that there was no use of a high pressure hose or water blasting. Given this crucial difference as to the manner in which the work was undertaken, it is the opinion of the Appeal Panel that that evidence should have been the subject of specific findings in the Decision: that is, specific findings as to which version ought to have been accepted (or if appropriate, that neither version was proven on the balance of probabilities). If the respondent's version had been found to have been accepted then it would have been reasonable to have concluded that the discolouration was unlikely to have been caused by the respondent. This conclusion appears to have been the basis of the comments made in paragraph 19 of the Decision. However, those comments would have not been logical or reasonable if the appellant's evidence as to the use of a high pressure hose had been accepted by the Tribunal. Had the Tribunal made findings consistent with the appellant's contentions the Tribunal: 1. would most likely have rejected the evidence constituted by the respondent's video; 2. would have been likely to have found that the evidence of Mr Suto and Mr Pollard to be persuasive; and 3. would have been in a better position to assess the evidence of Mr Pollard (whose evidence favoured the appellant) compared with the evidence of Mr James Carr (whose evidence is described in paragraph 18 of the Decision and who appears to have supported the respondent). 1. It is the view of the Appeal Panel that the omission in finding which version of how the work was undertaken lead to the conclusion of the Tribunal that the evidence as to the cause of the damage was "too conflicting". Alternatively, the Tribunal may have found that neither the appellant's version as to how the work was undertaken was proven (on the balance of probabilities) and nor was the respondent's version. 2. In the opinion of the Appeal Panel the result of the Decision is that the appellant may have suffered a substantial miscarriage of justice because the Decision was not fair and equitable. Unfortunately, for both parties the only way the competing evidence can be properly determined is to order a rehearing. 3. In coming to the above conclusion the Appeal Panel has had regard to the principles set out in the decisions of an Appeal Panel in Collins v Urban [2014] NSWCATAP 17 where it was held that a substantial miscarriage of justice may have been suffered where there was a "significant possibility" or "a chance which was fairly open" that a different result would have been achieved for the appellant had the relevant circumstance in paragraph (a) of cl 12(1) not occurred (see paragraph 76). In this case the relevant circumstance is, as stated before, the omission to make the findings of fact as to how the work was undertaken. 4. Further, the Appeal Panel is of the view that it ought to grant leave to appeal. This decision to exercise our discretion to grant leave is based upon the principles identified in Collins v Urban (see paragraphs 80-84). In this case, the Appeal Panel is of the view that the Decision involves an injustice which is reasonably clear and which is central to the Decision as opposed to merely peripheral. Further, in this case the Appeal Panel is of the view that the Tribunal in coming to the Decision did so in such a way that it was likely to produce an unfair result with the consequence that it would be in the interests of justice for the Decision to be reviewed. 5. Accordingly, the Appeal Panel has made orders for the appeal to be upheld and for the application to be remitted to the Consumer and Commercial Division of the Tribunal for a rehearing. We do not think that the interests of justice would be properly served by ordering that the parties should not be permitted to file further evidence should they wish to do so. 6. The Decision under appeal also decided the respondent's application HB 15/10573 in favour of the respondent by ordering the appellant to pay the respondent $1200.00 being the balance due in respect of the work performed by the respondent. It is appropriate to set aside that order in the light of our decision so as to enable both applications to be heard together when remitted for a rehearing. Orders 1. Accordingly, the Tribunal makes the following orders: 1. Leave to appeal granted. 2. Appeal upheld. 3. The orders made on 10 July 2015 in applications HB 15/03370 and HB 15/10573 are set aside. 4. Applications HB 15/03370 and HB 15/10573 are remitted for rehearing. 5. The parties are at liberty to file and serve further evidence (in addition to the evidence previously filed and served) subject to complying with directions made on the remittal. ********** 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 Amendments 25 November 2015 - Correct date on cover sheet 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: 25 November 2015