Moussa v Patten [2015] NSWCATAP 267

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Moussa v Patten [2015] NSWCATAP 267 Hearing dates: 13 October 2015 Date of orders: 10 December 2015 Decision date: 09 December 2015 Jurisdiction: Appeal Panel Before: D Patten, Principal Member T Simon, Senior Member Decision: 1 Appeal allowed 2 Orders made below quashed 3 Order that the matter be remitted to the Tribunal for re-hearing according to law upon such evidence as the Tribunal deems appropriate 4 No order as to costs Catchwords: Finding of liability against two respondents – absence of evidence to support Category: Principal judgment Parties: Michael Moussa and Ideal Trades Pty Ltd (Applicant) Bruce Patten (Respondent) Representation: Mr J R Young (Appellants) Mr & Mrs Patten in person File Number(s): AP 15/42585 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: [2015] NSWCATCD Date of Decision: 13 May 2015 Before: G Meadows, Senior Member File Number(s): HB 14/54707

reasons for decision 1. The appellants in this matter Michael Moussa and Ideal Trades Pty Ltd appeal against a decision of the Tribunal (Senior Member Meadows) published on 13 May 2015. The orders then made were: (1) Michael Moussa [XXX] and IDEAL TRADES PTY LTD [XXX] is to pay BRUCE PATTEN [XXX] the sum of $38,129.20 on or before 08 July 2015. Default in the payment of any instalment will cause the whole of the balance then outstanding to become immediately due and payable. Reasons: $38,129.20 Refund of contract price plus allowance for demolition and removal. 1. The proceedings before the Tribunal concerned the construction of a retaining wall upon the respondent's property at West Pennant Hills. 2. The Notice of Appeal stated grounds of appeal as: 1. The Tribunal Member has not seen Mr Moussa's evidence which refutes the validity of the evidence presented by Mr Bruce Patten 2. Mr Moussa's evidence /documents were never viewed by the Tribunal 3. This matter gives rise to extenuating circumstances; in particular, at the time this matter was progressing: 1. Mr Moussa had paparoscopic adjustable gastric band surgery on 28th May 2010. Post-surgery, Mr Moussa was required to attend regular appointments with a surgeon, dietician and psychologist. Since the surgery Mr Moussa has been experiencing complications which have affected him physically and mentally, requiring doctor visits. 2. Mr Moussa was preparing for his upcoming wedding in July 2015. In order to meet the expenses associated with his wedding, he undertook full time employment. This hindered his ability to take leave to resolve the disputed matters. Furthermore, Mr Moussa was preoccupied with multiple appointments relating to the wedding outside of his work hours. Mr Moussa did not comprehend the urgency of the matter due to these circumstances. 3. Mr Moussa did not have a current valid driver's licence which prevented him from freely meeting his former colleagues to gather evidence/documents. The frequency of his meetings was dependent on his ability to arrange means of transportation. 4. Mr Moussa was under significant financial hardship which was reflected in his struggle to engage the services of a solicitor and pay the filing fee. In the absence of legal advice, Mr Moussa relied on his own understanding of the documents and did not comprehend the seriousness of the matter. 4. There was no evidence to confirm Mr Patten paid $30,000.00. 5. The money receipted and signed off by Mr Moussa as payments received by him totalled $18,000.00. This evidence is in Mr Patten's own material tendered to the Tribunal. 1. The appellants also sought leave to appeal on the grounds that the decision below was not fair and equitable, that it was against the weight of evidence and that fresh evidence is now available. 2. Although the Notice of Appeal does not articulate a question of law, it became apparent during the hearing of the appeal that there was an error of law by the Tribunal below in a fundamental aspect of the case which was rather obliquely referred to in the Notice of Appeal. It concerned the parties to the contract made with the respondent. 3. Although the orders impose liability upon the two appellants, the Tribunal nowhere makes a finding that they both were parties to the relevant contract nor does it make any finding as to the scope of the contract. In its reasons, which make no reference to the corporate appellant, the Tribunal refers to "respondent" in the singular commencing with the following paragraphs: 'In this application the applicant asserts he contracted with the respondent Mr Michael Moussa to construct a "retaining wall" on his property. It appears to me that the structure is more correctly described as a set of overlapping planter boxes ascending a slope, divided by steps. There was no written contract, not even a written quotation. The respondent had constructed two previous structures for the applicant in a satisfactory manner. Apparently the applicant considered that it was safe and appropriate to continue to use the respondent, even though it is clear from the contemporaneous evidence that the applicant had concerns as to the licence status of the respondent. It is also clear from the contemporaneous email evidence that the applicant was very concerned to keep the cost of the works within the sum of $30,000.00 although the respondent had indicated it was likely to cost more. I find that the respondent agreed to construct, or to arrange and supervise the construction, of the retaining wall. I find also that the respondent arranged for himself and his father (claimed to be a licensed landscaper, the respondent claiming to be a licensed plumber), to install the footings for the wall. I accept the evidence of the applicant that the footings were constructed by the respondent and his father. I accept the evidence of the applicant that he dealt only with the respondent, Mr Michael Moussa, and made all payments direct to Mr Moussa. The parties agree that once the footings were constructed, the work was handed over to a bricklayer. The respondent claims he just referred the bricklayer to the applicant who employed him direct. The applicant claims the respondent arranged the attendance of the bricklayer and accepted responsibility for his work and for his payment. On the basis of the contemporaneous emails I accept the applicant's evidence. It is clear the respondent indicated he had directed what the bricklayer was to do, even though the respondent himself apparently went overseas for some weeks at that time.' 1. After determining that the wall as constructed was defective, the Tribunal accepted that it required demolition and reconstruction. It assessed damages by reference to the amount it found had been paid by Mr Patten to Mr Moussa namely $30,000 plus the cost according to the evidence of an expert of demolishing and removing the existing wall. 2. As to the amount paid for the defective wall the Tribunal said: 'The parties contradict each other in relation to the amount paid to the respondent. The respondent claims to have received only $18,000.00 but I am satisfied on the basis of the email evidence that is not correct. The applicant, besides the email evidence, has included some bank statements, showing withdrawals totalling $30,000.00. On that basis and on the basis that the agreed price was $30,000.00 (and there was no claim by the respondent that he had been underpaid), I find the applicant paid a total of $30,000.00.' 1. Unfortunately, in our opinion, in the absence of findings supported by reference to the evidence as to the identity of the parties to the contract (it being unlikely that there would be a joint liability) and as to the scope of the work to be performed under the contract, the decision below cannot be allowed to stand and there will have to be a re-hearing. We say unfortunately because there seems to be ample evidence to support a finding that the wall as erected was defective.