Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Buttie v Ahmed & Bhulu [2016] NSWCATAP 85 Hearing dates: 9 March 2016 Date of orders: 09 March 2016 Decision date: 09 March 2016 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member T Simon, Senior Member Decision: (1) Appeal allowed. (2) Order 2 of the orders made by the Tribunal on 2 November 2015 be set aside. (3) The whole of the case be reconsidered by the Tribunal below constituted differently from the Tribunal at first instance. Catchwords: APPEAL – home building dispute - breach of contract - money judgment on renewal of proceedings after failure to comply with work orders – incorrect amount ordered to be paid in absence of appellant –correct refusal of appellant's request for adjournment – no consideration of proof of quantum. Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Category: Principal judgment Parties: Clayton Buttie (Appellant) Miah Golam Ahmed & Monie Bhulu (Respondents) Representation: None File Number(s): AP 15/63957 Decision under appeal Court or tribunal: Consumer and Commercial Division Jurisdiction: Consumer and Commercial Division Date of Decision: 02 November 2015 Before: J Levingston, Member File Number(s): HP 15/52062 REASONS FOR Judgment 1. At the conclusion of the hearing of this appeal, we made orders allowing the appeal and remitting the matter for reconsideration by the Tribunal below. We stated that reasons for this decision would follow. These are our reasons. 2. This is a home building matter concerning landscaping works in which the appellant, who promised to carry out the works, appeals against an order that he pay an amount of money to the respondents. 3. The problem with the orders by the Tribunal below that emerged on the appeal was that both parties agreed that the amount ordered to be paid was more than the correct amount owed by the appellant to the respondents. The parties could not, however, agree on the amount that was due and owing. This was so, even though ample opportunity was given to the parties by the Appeal Panel, during the time set aside for the hearing of the appeal, for the parties to arrive at an agreed figure. 4. The orders appealed against had been made by the Tribunal below in the absence of the appellant, in the circumstances referred to below. Unfortunately, the reasons for decision do not make findings about the quantum of the amount and identify the evidentiary basis for the amount ordered to be paid. The amount ordered to be paid was the amount sought by the respondents in their application. At the hearing of the appeal, the respondents were not able to identify the evidentiary basis for the order requiring payment. 5. More of the background to the issues concerning the orders made by the Tribunal below is as follows. 6. In around July 2014, the appellant agreed to carry out landscaping works at the respondents' home in Minto. An invoice from the appellant to the respondents dated 14 July 2014 (the first invoice) describes the works to be carried out at a total cost of $41,000.00. 7. It is undisputed that the appellant received payment in full in advance for all of these works, but only completed part of them. On 30 July 2015, following the commencement of the original proceedings in the Tribunal by the respondents on 23 June 2015, the Tribunal below made consent orders for the appellant to carry out various items of the landscaping work that had not been completed. 8. The final date for completion of the work the subject of the Tribunal's work orders was 31 August 2015. These work orders were not complied with. The extent of the non-compliance was in dispute. As a result of the non-compliance, the respondents renewed their Tribunal application by a Notice to Renew Proceedings dated 1 September 2015. That was a renewal of the proceeding pursuant to cl 8 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (the Act). 9. In their original application to the Tribunal the respondents had sought an order that the appellant pay them the amount of $20,927.55. By the renewal application, some two months later, they sought an increased amount of $21,971.83. This was so, despite the fact that the renewal application refers to some additional work being done by the appellant in the interim (staining of the front fence). No explanation for this discrepancy emerges from the renewed application or any other material. 10. On 2 November 2015, in the renewed proceedings, the Tribunal below ordered that the appellant pay the respondents the sum of $21,971.83 immediately. As we have said, this was the sum sought by the respondents in their renewed application. 11. The appellant did not appear at the hearing on 2 November 2015. 12. Shortly before the hearing, the Registry of the Tribunal received an email from the appellant requesting an adjournment on the basis that he was sick with food poisoning. The adjournment application was opposed. It was refused by the Tribunal below, having regard to various matters, including the absence of any medical or other evidence supporting the application, the failure by the appellant to comply with work orders of the Tribunal made on 30 July 2015 and his failure to comply with directions ordered on 1 October 2015, including for the appellant to supply its evidence in opposition to the claim for a money order. 13. Following the filing of a Notice of Appeal, a temporary stay of the order for payment was ordered on 1 December 2015. This expired on 11 December 2015 and an application for its continuance was refused. Nevertheless, the amount ordered to be paid was not paid by the appellant. 14. On appeal, the appellant's latest contention was that the only amount he owes the respondents is the sum of $227.28. In this regard, he disputes the extent to which the respondents contend that the work the subject of the first invoice was not carried out. He also claims that he carried out additional work the subject of a second invoice dated 2 January 2015 (the second invoice) for which he has not been paid. Contrary to directions made in the Tribunal below, the appellant never supplied any evidence and there was no reference by him to this additional work before the matter was raised by him on the appeal. 15. On the other hand, in his Notice of Appeal, the appellant contends that the amount he should be ordered to pay the respondents is $1927.28 and that he should be ordered to supply and install a panel to a gate at the rear of the watertank. 16. The respondents dispute that the appellant is entitled to money the subject of the second invoice. They say that they never agreed for such work to be carried out and they do not accept that such work was ever done. 17. At the hearing of the appeal, the respondents conceded that the amount ordered to be paid by the Tribunal on 2 November 2015 was not the correct amount owing to them. On their case, it was overstated by $1,000.00. They said they had been mistaken in the figure they gave the Tribunal below. 18. In their Reply to the Appeal, the respondents gave some revised figures as to the amounts they claimed were due and owing to them. The figure that they gave was the sum of $19,561.00. However, as they conceded at the hearing of the appeal, this contained errors – it repeated the same error concerning overstatement of the sum of $1,000.00. It also made adjustments to reduce the amount that they should have paid the appellant by reference to the second invoice (stating that this showed a lower quoted cost for work that the appellant in fact had done). However, they concede that to do this was misconceived because on their case there had never been any agreement in respect of the work described in the second invoice. 19. Another difficulty with the respondents use of the second invoice, as a basis to reduce the amount they should have paid the appellant, is that in its terms the invoice states that the prices in the quote "are to be added to the original quoted price". 20. The reasons of the Tribunal below do not address the question of proof of the amount owing. The central reasoning of the Tribunal was: 7. The respondent has failed to do anything to show he has a defence to the claim or an arguable case by which he can resist the applicants' claims. He has done nothing to show on the balance of probabilities that he is not liable to the applicants. 1. What the Tribunal here stated was, undoubtedly, correct. Nevertheless, the respondents bore the onus of proving the amount of the liability and the Tribunal needed to address the question of proof of quantum. In our opinion, it erred in law in failing to do so. 2. The appellant had a right of appeal in respect of such an error: s80(2)(b) of the Act. 3. Given the absence of findings by the Tribunal below about quantum, the nature and extent of the differences between the parties about it, and the very limited evidentiary material supplied on the appeal on this subject, it was not practical for the Appeal Panel to itself embark upon a new hearing concerning the issue. 4. The appellant also challenged the order of the Tribunal below refusing his request, by email, for an adjournment. In our opinion, it was open to the Tribunal to decide as it did, for the reasons it gave, as referred to above. No error has been shown in the Tribunal's decision on this point. Orders on appeal 1. It was for the above reasons that at the conclusion of the hearing of the appeal, we made the following orders: 1. The appeal is allowed. 2. Order 2 of the orders made by the Tribunal on 2 November 2015 be set aside. 3. The whole of the case be reconsidered by the Tribunal below constituted differently than the Tribunal at first instance. ********** 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: 12 April 2016