Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tabs Boats Pty Ltd v Jetty Boating Coffs Harbour Pty Ltd [2016] NSWCATAP 130 Hearing dates: 9 March 2016 Date of orders: 16 June 2016 Decision date: 16 June 2016 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Goldstein, Senior Member Decision: 1 Leave to appeal is refused. 2 The appeal is dismissed. 3 The order made on 3 December 2015 for a stay of the orders made by the Tribunal at first instance on 9 October 2015 is discharged. Catchwords: APPEAL – sale by manufacturer of boat – whether Tribunal's remedial powers constrained by the general law - whether the Tribunal could order refund of the purchase price and return of the boat – correctness of finding of implied term as to satisfactory quality – new point on appeal that wrong party sued. Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 (NSW) Consumer Claims Act 1998 Fair Trading Act 1987 (NSW) Sale of Goods Act 1923 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Coulton v Halcombe (1986) HCA 33; 162 CLR 1 Hudson v Arp (No. 1) NSW Pty Ltd [2014] NSWCATAP 31 Jet 60 Minute Cleaners Pty Ltd v Brownette [1981] 2 NSWLR 232 State Rail Authority of New South Wales v Consumer Claims Tribunal (1988) 14 NSWLR 473 Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438; Texts Cited: Benjamin, The Sale of Goods, 9th Ed (2014) Category: Principal judgment Parties: Tabs Boats Pty Ltd (Appellant) Jetty Boating Coffs Harbour Pty Ltd (Respondent) Representation: Solicitors: K2 Law (Appellant) Fishburn Watson O'Brien (Respondent) File Number(s): AP 15/60856 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Jetty Boating Coffs Harbour Pty Ltd v Tabs Boats [2015] NSWCAT Date of Decision: 19 November 2015 Before: M Gilson, General Member File Number(s): GEN 15/26830 REASONS FOR DECISION Overview 1. In December 2014, the Respondent ("Jetty Boating"), a boat dealer, ordered from the business known as Tabs Boats, an aluminium boat with the model description 5300 Territory Pro Side Console. It ordered the boat for its customer, Kevin Jones, who was in Melbourne. Jetty Boating was based in Toormina, near Coffs Harbour on the north coast of New South Wales. The business known as Tabs Boats was based in southern Queensland between Brisbane and the Gold Coast. 2. The boat was delivered directly to Mr Jones. The purchase price was paid through a finance facility. For various reasons, Mr Jones rejected the boat. In turn, so did Jetty Boating. Tabs Boats did not accept the rejection. Tabs Boats accepted that the boat did not fully accord with the contract and that there were defects, but said these should be fixed, rather than reverse the contract. 3. Jetty Boating commenced proceedings in the Tribunal to recover the purchase price. The Tribunal at first instance upheld Jetty Boating's claim and ordered that the Appellant pay it the sum of $27,547.08. That sum was the total of the purchase price and the amount of freight that Jetty Boating paid to deliver the boat to Mr Jones. 4. The Appellant has appealed against those orders. It contends that errors of law were made by the Tribunal at first instance. In respect of any such errors the Appellant has a right of appeal: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the Act"). 5. It also contends that there were errors of fact made by the Tribunal below that satisfy the requirements for it to be granted leave to appeal. Those requirements are set out in cl 12 of Schedule 4 of the Act. 6. For the reasons set out below, we do not agree with the Appellant's contentions. We refuse leave to appeal and we dismiss the appeal. Decision of the Tribunal at first instance 1. Pertinent findings and conclusions of the Tribunal at first instance were: 1. On or around 30 January 2015 the parties entered into a written agreement under which the Appellant would manufacture and supply a new boat to a customer of Jetty Boating for the sum of $26,777.08. This order followed an earlier purchase from Tabs Boats of a similar boat for the same customer. Mr Jones had an accident with that boat and sought a new boat to replace the old one. 2. There were some alterations to the specifications in the order for this new boat compared to the earlier boat purchase. 3. The new boat was to be delivered directly by the Appellant to Mr Jones in Melbourne. It was not going to be subject to the usual dealer pre-delivery service. 4. On 25 February 2015, the Appellant invoiced Jetty Boating for the boat and this sum was placed on the Jetty Boating's GE Capital floor plan for payment. On or around 11 March 2015 the boat was delivered to Mr Jones. Jetty Boating paid the freight of $770. 5. Mr Jones was far from happy with the boat and raised his concerns with both the Appellant and Jetty Boating. A suitable resolution could not be reached and on 27 April 2015 Mr Jones rejected the boat. 6. The circumstances of the case satisfy the definition of a "consumer claim" within the meaning of the Consumer Claims Act 1998 ("the CC Act") which was the applicable legislation when the application was lodged. 7. Jetty Boating was not a consumer under the Australian Consumer Law because it was acquiring the boat for the purpose of re-supply to Mr Jones. Accordingly, the guarantees provided under that legislation did not apply to the transaction and the matter had to be considered as an alleged breach of contract between Jetty Boating and the Appellant. 8. The boat supplied by the Appellant varied from the ordered boat in a number of ways – the casting platform had not been raised as required, the swim step and ladder were not as ordered, the LED lights were not as ordered, and the horsepower upgrade of the hull had not been correctly labelled. 9. It was appropriate to conclude that the contract had an implied term that the boat would be constructed to a satisfactory or acceptable standard. 10. Various aspects of the boat's construction were not of a satisfactory or acceptable standard. There was misalignment and a broken transom door, poor and uncleaned welds, weld blowhole, irregular or uneven edges, and inconsistent widths to internal supports of the casting deck. 11. On balance, there was a significant breach of contract by the Appellant and Jetty Boating was entitled to have this remedied. 12. The Tribunal ordered that: 1. On or before 9 November 2015 the Appellant pay Jetty Boating the sum of $27,547.08 being the price charged to Jetty Boating for the boat of $26,777.08, plus the cost to transport the boat to Mr Jones in Melbourne, being $770.00. 2. Within 14 days of receiving this sum, Jetty Boating was to return the boat to the Appellant at its own cost. The boat order and the problems with the boat as delivered 1. The order for the boat was the subject of a written "order confirmation", dated 16 December 2014, issued under the name "Tabs Boats". It specified the dealer as Jetty Boating and the customer name as Kevin Jones. It identified the standard price of the boat as $16,897. It then specified additional items, resulting in the total price of $26,777.08. 2. One of those additional items was Item 5 for a cost of $1,000.00. This was in terms: Raise Front Casting Platform by min 450mm to fit 12v Fridge. 1. In the proceedings at first instance, Jetty Boating complained that to correct the casting platform height would require a new floor to be made. There would also be a need to remove the swim platform and fix up a number of quality control issues. The boat did not meet expectations and Tabs Boats should take it back. Grounds of Appeal and consideration of those grounds 1. We deal with the Appellant's grounds of appeal in the order in which they are addressed in the Appellant's written submissions. Ground 7 – the remedy is not recognised at common law or in equity 1. The Appellant contends the Tribunal erred in law because the orders made by the Tribunal in consequence of its finding of a breach of contract were not remedies recognised by the common law or in equity. 2. In the Appellant's written submission it submits: It is clear that the contract had been fully executed and performed. Delivery of the boat had occurred and payment of the price (through the GE Finance Facility) had been made. In these circumstances, the only remedy for breach of contract is a claim for an award of damages. 1. In oral submissions, Mr Kumnic, the solicitor for the Appellant, submitted that the statutory power conferred on the Tribunal to make orders under s 8 of the CCA Act and, subsequently, under s79N of the Fair Trading Act 1987 (NSW) (the FT Act) did not authorise the Tribunal to do what would not be permitted by the common law or in equity. 2. We disagree with both aspects of these submissions. 3. First, the fact that the contract has been executed by delivery and payment of the purchase price does not prevent the restitutionary remedy involving refund of the purchase price: Benjamin, The Sale of Goods, 9th Ed (2014) at 12-069. This is a remedy available where the circumstances justify rejection of the goods – for example, for failure to supply in conformity with the description of the goods: see Benjamin at [12-022]. 4. We note that no argument was advanced by the Appellant on the appeal that a right to reject the boat had been lost by acceptance of the boat. 5. Secondly, we disagree that the remedy must be that dictated by the general law. This is the case whether we are concerned with the power conferred on the Tribunal by s 8 of the now repealed CCA Act or by the like powers now contained in s 79N of the Fair Trading Act 1987 (NSW). 6. The terms of s 79N of the Fair Trading Act 1987 are: 79N Orders in favour of claimant (cf CC Act 1998, s 8 (1)) In determining a consumer claim wholly or partly in favour of a claimant, the Tribunal may, subject to this Division, make any one or more of the following orders that it considers appropriate: (a) an order that requires a respondent to pay to the claimant a specified amount of money, (b) an order that requires a respondent to perform specified work in order to rectify a defect in goods or services to which the claim relates, (c) an order that requires a respondent to supply to the claimant specified services other than work, (d) in the case of a claim for relief from payment of money—an order declaring that a specified amount of money is not due or owing by the claimant to a respondent, (e) an order that requires a respondent to deliver to the claimant goods of a specified description, (f) an order that requires a respondent to return to the claimant specified goods which are in the possession or under the control of that respondent, whether the property in the goods has passed or not, (g) an order that requires a respondent to replace goods to which the claim relates, (h) an order that requires a respondent to refund all or part of the purchase price of specified goods that are in the possession (or under the control) of the claimant and the claimant to return all or part of those goods to the respondent (whether the property in the goods has passed or not). 1. It is notable that both pieces of legislation have as their objective the conferral of remedies in relation to consumer claims. As to this, the Long Title to the now repealed CCA Act was in terms: An Act to provide certain remedies to consumers concerning the supply of goods and services; … 1. As to the current legislation, s 79B provides: The objects of this Part are to provide for remedies for, and for straightforward resolution of, disputes concerning the supply of goods and services to consumers. 1. It is readily apparent from an examination of the powers conferred by these two provisions that they are broader than the remedies available at common law or in equity. 2. Such powers are, of course, constrained by the ambit of a "consumer claim", the monetary limit imposed upon the Tribunal and by the requirements that the order be considered by the Tribunal to be appropriate and to be fair and equitable: s 79N and s 79U. 3. The Appellant contends that its submission is supported by the decision of the Court of Appeal in State Rail Authority of New South Wales v Consumer Claims Tribunal (1988) 14 NSWLR 473. We do not agree. The following passages are contrary to what the Appellant submits. 4. In the State Rail case, Hope JA, with whom Samuels JA and Clarke JA agreed, said (at 477B & G): I would respectfully agree with the conclusion reached by Yeldham J in Fairey Australasia Pty Ltd v Joyce [1981] 2 NSWLR 314 at 321 that the tribunal is not concerned with "palm tree justice", and with his conclusion, and with the conclusion of Hunt J in Jet 60 Minute Cleaners Pty Ltd v Brownette [1981] 2 NSWLR 232 at 236, that save in relation to the selection of the form of order the tribunal must act in accordance with and must apply the general law in determining the claim which has been made to it. As Gowans J said in R v Small Claims Tribunal; Ex parte Barwiner Nominees Pty Ltd [1975] VR 831 at 835–836: [our emphasis] .... Although the claim in the ultimate is for a remedy, …. the claim must be a claim arising out of a contract for the supply of goods or the provision of services or both. Whether there is such a claim or obligation is to be determined by applying the general law. It is only where the tribunal proposes to make an order in favour of the claimant that in some cases the form of order in his favour is to be determined according to the opinion of the tribunal as to what is fair and equitable to all parties. 1. In the Jet 60 Minute Cleaners case, Hunt J said, when considering the powers of the old s 23(2) Consumer Claims Tribunal Act 1974 (NSW),: The Consumer Claims Tribunal is required to make such order as is, in its opinion, fair and equitable to all the parties to the proceeding before it: s 23(2). That obligation, however, in its context relates to the nature of the order to be made; it does not give the tribunal freedom to act otherwise than in accordance with the general law in determining whether the claim before it has been made out.14 Ground 5 – No implied term as to satisfactory or acceptable standard 1. The Appellant contends that the Tribunal at first instance erred in law because its finding of breach of contract was based on an implied term which should not have been implied. This was said to be because it was not necessary to give business efficacy to the contract. The Appellant also contends that such a term could not be implied because it was not sufficiently certain and because the specifications were already prescribed and comprehensively covered by the terms of the order. The Appellant contends that once the finding of an implied term is overturned, it followed that the finding that there had been a "significant breach" of contract must be overturned. 2. In our opinion, because of the construction element of this contract, a term was implied, as a matter of law, that the building work would be carried out in a careful and competent manner, sometimes expressed as an obligation to carry out the work in a proper and workmanlike manner: Halsbury, Law of Australia at [65-575]. 3. We do not agree with the formulation of the implied term as found by the Tribunal at first instance. We would have thought there was a statutory implied term requiring the boat to be of merchantable quality (s 19(2) of the Sale of Goods Act 1923 (NSW)), but this was not the term that the Tribunal dealt with and found to have been breached. 4. However, in our opinion, this error does not alter the result. Firstly, the facts as found by the Tribunal at first instance (at [16(c)]) are, in our opinion, sufficient to establish a breach of the implied term to which we have just referred. 5. Secondly, even if this were not so, there was a breach of the express obligation to supply the boat as promised (as to such obligation, see: Benjamin at [11-002], namely a boat containing the promised raised casting platform and without the swim platform and style of ladder. Ground 6 – The Tribunal should not have relied on extrinsic materials to imply term 1. The Appellant contends that the Tribunal at first instance erred in law because its implication of the term concerning quality relied on material that was extrinsic and irrelevant to the contract. As to this, the Appellant points to the Tribunal's reference to a brochure in the context of finding the implied term [at 16(b) of the reasons]. 2. It does appear that the content of the brochure influenced the Tribunal's finding of the conclusion as to the implication of the term as to quality. 3. However, to do so, was not necessarily an error, but even if it was, for the reasons we have given in relation to Ground 5, any such error does not affect the result. Grounds 1, 2 and 4 – Wrong party was sued 1. The Appellant seeks leave to appeal on Grounds 1 and 2 of the appeal. 2. These grounds concern a contention that Jetty Boating sued the wrong party. 3. The Appellant contends that the Tribunal did not find, as it should have done, that the Appellant was not the manufacturer or supplier of the boat. Further, or alternatively, the Appellant contends that the Tribunal acted against the weight of evidence in failing to give weight to the substantial body of objective evidence before it that All Plate Boats (Qld) and/or All Plate Boats Pty Ltd was the manufacturer and or supplier of the boat. 4. The Appellant contends that such errors resulted in a substantial miscarriage of justice for the Appellant. 5. In the event that the Appeal Panel is not prepared to grant leave to appeal on these grounds, the Appellant contends that there was no probative evidence that the Appellant was a party to the contract. Hence, it says the Tribunal, in this respect, made an error of law – Ground 4 of the appeal. 6. In order to grant leave to appeal from a matter in the Consumer and Commercial Division, the Appeal Panel must be satisfied that (clause 12 of Schedule 4 of the Act): 12 Limitation on internal appeals against Division decision (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. The short answer to each of these three grounds of appeal is that the wrong party point was not raised by the Appellant in the Tribunal below. Mr Wilson and Ms Pearce appeared for the Appellant at the hearing below by telephone. No mention was made of an issue about the wrong party. Both Mr Wilson and Ms Pearce had to some extent been involved with aspects of the dispute. The hearing below proceeded on the basis that the parties before the Tribunal were the parties to the contract. 2. The Tribunal had before it an ASIC search showing the registration of the Appellant. No business name search of "Tabs Boats" was obtained and placed before the Tribunal. 3. In our opinion, the Appellant should not be permitted to raise this new point on appeal. The considerations which greatly restrict the circumstances in which an appeal court will entertain points not raised below on appeal are pertinent: Hudson v Arp (No. 1) NSW Pty Ltd [2014] NSWCATAP 31; Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438; Coulton v Halcombe (1986) HCA 33; 162 CLR 1 at 7. 4. As was said in Suttor's case, raising a new point on appeal, with the inevitable consequence of the need for a new trial, will not be permitted in circumstances where "evidence could have been given which by any possibility could have prevented the point from succeeding". 5. On appeal, the Appellant pointed to various documents, which were in evidence before the Tribunal below, which, it said, showed that Jetty Boating was contracting with All Plate Boats (Qld) Pty Ltd. 6. In our opinion, none of this material conclusively establishes that contention. 7. Furthermore, in our opinion, it would not be fair and equitable to Jetty Boating to delay the finalisation of this dispute any longer, and require it to spend further time and resources on the dispute, in circumstances where the Appellant could and should have raised any point about the correct party at the hearing below. Ground 3 – Error of fact that casting platform was not raised 1. The Appellant contends that it has suffered a substantial miscarriage of justice because the Tribunal at first instances acted against the weight of evidence in failing to give weight to the objective evidence before it that the casting platform was in fact raised to the required specification. 2. In its written submissions on this issue, the Appellant points to one picture amongst the material adduced by Jetty Boating in the hearing below. It is by no means plain from this picture that the casting platform conformed to the contractual provision. 3. Furthermore, the Appellant fails to refer to the whole of the evidence on this subject. In their written submissions, Jetty Boating refer to other photographs in support of its position concerning the casting platform. 4. On the basis of the one picture relied upon by the Appellant, in our opinion, it is not possible to conclude, as we need to do for the grant of leave, that "the evidence in its totality preponderates so strongly against the conclusion" that it can be said that the conclusion of non-conformity with the contract is not one which a reasonable Tribunal member could reach, or that the Appellant has suffered an injustice that is reasonably clear or that there was error that was "plain and readily apparent": see Collins v Urban [2014] NSWCATAP 17 at [77(ii)] and [84(c)]. Order on Appeal 1. For the above reasons, leave to appeal is refused, the appeal is dismissed and the order made on 3 December 2015 for a stay of the orders made by the Tribunal at first instance on 9 October 2015 is discharged. ********** 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. 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