Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Smith v Andrew Hands t/as Perfect Timber Flooring [2016] NSWCATAP 161 Hearing dates: 21 June 2016 Date of orders: 25 July 2016 Decision date: 25 July 2016 Jurisdiction: Appeal Panel Before: P Callaghan SC, Principal Member D Robertson, Senior Member Decision: (1) Leave to Appeal is refused (2) The Appeal is dismissed Catchwords: APPLICATION FOR LEAVE TO APPEAL – Appellant failed to demonstrate foundation for grant of leave to appeal Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 Consumer Claims Act 1998 Home Building Act 1989 Cases Cited: Collins v Urban (2014) NSWCATAP 17 Category: Principal judgment Parties: Appellant: Geoffrey Julian Smith Respondent: Andrew Giles Hands t/as Perfect Timber Flooring Representation: Counsel: Appellant: D Hand Respondent: RL Gall Solicitors: Appellant: Segal & Associates Respondent: Wotton & Kearney File Number(s): AP 15/67228 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Nil Date of Decision: 2 December 2015 Before: C Paull, General Member File Number(s): HB 15/60489 REASONS FOR DECISION 1. This is an appeal against a decision of the Consumer and Commercial Division of the Tribunal dated 2 December 2015 dismissing an application brought by the appellant homeowner against the respondent for damages said to arise by reason of the allegedly defective installation by the respondent of bamboo flooring in the appellant's house. The appellant had purchased the boards and then entered into a contract with the respondent to lay them, at a price of $2,150.00 2. At the appeal Mr Hand of Counsel appeared for the appellants and Ms RL Gall of Counsel appeared for the respondent. Neither party was legally represented at the hearing below. 3. In the hearing below the appellant (as the applicant) had complained, and it was not in contest, that some of the floorboards laid by the respondent in the appellant's house had buckled and lifted. 4. The appellant alleged: 1. That the bamboo flooring had been laid in the wrong direction, that is across the house rather than along the length of the house; 2. That the respondent had failed to leave the boards to acclimatise for a sufficient (or even any) period before installing them; and 3. That the respondent had failed to install expansion joints as required by the manufacturer's instructions for the product. 1. The respondent's defence was: 1. That the appellant had selected the direction in which the boards should be laid; 2. That it was not necessary to allow the boards to acclimatise in the Sydney environment; and 3. That the absence of control joints was the result of a specific direction by the appellant that he did not want them as they would collect dust and be a trip hazard. 1. The appellant sought the sum of $15,000 which was said to be the cost of removing and replacing the boards, including costs which would be incurred by the appellant in moving out while the work was done, having furniture moved, and having skirting boards replaced and repainted. 2. The respondent asserted in response that the compressive tension in the floorboards which was causing the floorboards to lift and buckle could be relieved by the installation of control joints, cutting a perimeter gap at the end wall, and the replacement of any damaged boards. The respondent had offered to do that work for $680.00 plus GST but also tendered correspondence from the manufacturer of the floorboards in which it offered to perform the necessary rectification work at no cost to the appellant. That offer had been rejected by the appellant. 3. The appellant did not put before the Tribunal below any expert evidence concerning the quality of the installation work performed by the respondent. He relied upon communications from the manufacturer and a print-out of the manufacturer's installation instructions downloaded from the internet. 4. The respondent also relied upon a number of communications from the manufacturer including a letter which stated that it was not necessary to allow the bamboo flooring boards to acclimatise prior to installation in the Sydney environment. The respondent gave oral evidence which included the following: 1. That he had been installing the bamboo flooring product for a long time; 2. That he was "very familiar with the product characteristics"; 3. That it "is a very simple remedy to overcome [the lifting of the boards] and that is basically instating a control joint at the [doorways]" (this was more fully explained elsewhere in his evidence as also involving "cutting a perimeter gap on the far end wall in the dining room"), and that he had already offered initially to do that for $600 and that subsequently he, and then the manufacturer, had offered to do it without charge. 1. In the decision under appeal the Tribunal Member outlined the parties' cases and evidence and made findings in the following terms: Essentially, the applicant relies on the manufacturer's email (14 April 2015) and the information provided on the manufacturer's web page (pp 36-46 of his documents). There is no evidence to substantiate non-compliance with all of the manufacturer's requirements which the applicant raises and in most cases these allegations of non-compliance are directly refuted by the respondent. Indeed on one of the key points of contention, the direction of the board's, the manufacturer's email on which the applicant relies, is at odds with the manufacturer's letter of 28/9/15, on which the respondent relied. While both parties' allegations are not sufficiently substantiated by independent evidence, ultimately it is the applicant who must prove his case. Not only is there insufficient persuasive evidence from the applicant as to the respondent's failures to comply with all of the matters alleged but there is no persuasive evidence of the impact of these matters so as to allow a finding that the fair and reasonable cost of rectification is some $15,000 to remove the subject work and have the wooden flooring reinstated. I therefore dismiss the application. Before concluding I note briefly that there are requirements under the Home Building Act 1989 for a contractor to reduce to writing work that has been carried out contrary to his advice to the homeowner. Clearly this was not done here. As however my findings rest on the applicant's failure to prove the defects alleged and the reasonable cost of rectification, these requirements are not relevant. 1. By his Amended Notice of Appeal filed on 7 April 2016 the appellant seeks leave to appeal on the bases: 1. That the decision is not just and equitable; and 2. That the decision is against the weight of evidence. 1. We note that the appellant filed a "draft" expert report concerning the floors but at the hearing did not seek to rely upon it as fresh evidence warranting the grant of leave to appeal. 2. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of clause 12(1) of Schedule 4 of the Act, leave may only be granted under s80(2)(b): "if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. 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 Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized at par [71] and par [79] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [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 . . . 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. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban an Appeal Panel of the Tribunal conducted a review of the relevant cases at pars [65]-[79] and concluded at par [84]: "The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." 1. Although the appellant filed with his amended Notice of Appeal a detailed outline of numerous respects in which it was alleged the decision of the Tribunal below was not fair and equitable and was against the weight of evidence, in written submissions filed shortly before the hearing, the appellant relied only upon the proposition that the evidence that control joints should have been installed and that control joints had not been installed was overwhelming and uncontradicted. The appellant submitted that in these circumstances: The evidence, in its totality, preponderates so strongly against the Tribunal's conclusion on the issue of liability that it may fairly be said that the decision below was not one that a reasonable Tribunal member could reach: Collins v Urban at [77] and the authorities there cited. The decision was against the weight of evidence, including the evidence and admissions of Mr Hands, the respondent. By failing to make a decision that was consistent with the weight of evidence, the Tribunal has deprived Mr Smith of a significant possibility, or a chance that was fairly open, that a more favourable result would have been achieved. On that basis, he has suffered a substantial miscarriage of justice. 1. The appellant also submitted that the decision was not fair and equitable because: The Tribunal's hearing of the matter occupied about one hour of hearing time. The parties were not legally represented. The Tribunal did not, in the course of the hearing, take such measures as were reasonably practicable to ensure that it complied with its obligations under section 38 of the Civil and Administrative Tribunal Act 2013. 1. In response to the document attached to the Amended Notice of Appeal the respondent submitted that the submissions in that document provided "little to no explanation as to why particular evidence should have been given more weight". The respondent's submissions did not directly address the appellant's submission regarding control joints. 2. The respondent further submitted that the appellant could not establish that (in accordance with what was said in Collins v Urban) there had been "an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand", as rectification could be carried out at negligible or no cost. 3. In response to the appellant's submission that the decision was not just and equitable by reason of the shortness of the hearing and the absence of legal representation, the respondent submitted, with appropriate references to the transcript of the hearing: First, both parties had filed considerable documentary materials ahead of the hearing date with the Tribunal and at the conclusion of the oral hearing the Tribunal made it clear that the Tribunal member wanted to "go and think about it a bit more and the documents you have referred me to". Secondly, the Tribunal made it clear that the matter did not have to be finalised within the estimated time allocated and that if it could not be finished then "we'll have to come back and continue on it". Thirdly, the Tribunal asked Mr Smith if he wanted to "say anything in closing?" Finally, leave is needed for the parties to be legally represented (such leave was given with respect to this appeal on 29 March 2016): s 45 of the NCAT Act. Therefore the lack of legal representation in this jurisdiction, particularly where both parties were unrepresented, does not demonstrate the decision was not fair and equitable. 1. As is apparent from the last paragraph of the Member's decision set out above, at first instance the application was apparently treated as a claim brought pursuant to the Home Building Act. At the commencement of the appeal hearing the Appeal Panel raised with Counsel the question whether the proceedings were proceedings arising under the Home Building Act in that the work performed by the respondent involved the installation of a floating floor, that is a floor laid over the top of and not fixed to the concrete slab floor of the house, and that the cost of the labour and materials supplied by the respondent was $2,150.00, which is less than the amount prescribed by the Home Building Regulation 2014 clause 12 (that is $5,000) . 2. Pursuant to clause 2(3)(k) of the definition of "residential building work" in Schedule 1 to the Home Building Act: (k) any work involved in the installation of any material that forms an upper layer or wearing surface of a floor (even if installed as a fixture) and that does not involve any structural changes to the floor, but not including work involved in the installation of floor tiles unless the regulations otherwise provide, is excluded from the definition of residential building work. 1. Pursuant to clause 2(3)(a) of the definition of "residential building work" in Schedule 1 to the Home Building Act: (a) any work (other than specialist work) the reasonable market cost of the labour and materials involved in which does not exceed the amount prescribed by the regulations is also excluded from the definition of "residential building work". 1. Mr Hand conceded that sub-paragraph (a) was applicable but did not concede sub-paragraph (k) was applicable. He submitted that that issue had not been the subject of submissions or evidence below. Ms Gall in written submissions filed on 20 June 2016 submitted that sub-paragraph (k) was applicable and suggested that the appellant had not in fact relied upon the Home Building Act at the initial hearing. 2. As it is clear that the work was excluded from the definition of residential building work by reason of sub-paragraph 2(3)(a) of the definition we do not need to consider whether it is also excluded by sub-paragraph 2(3)(k). 3. The parties through their Counsel accepted that the Tribunal nevertheless had jurisdiction to determine the proceedings pursuant to the Consumer Claims Act 1998 (NSW) as in force at the commencement of the proceedings [1] . 4. The Respondent is a "supplier" within the meaning of s 3 of the Consumer Claims Act, that is, a person who, in the course of carrying on a business, supplies "services" within the meaning of s 3 of the Consumer Claims Act. The Appellant is a "consumer" within the meaning of s 3 of the Consumer Claims Act, that is a natural person to whom the Respondent has supplied or agreed to supply services. The claim by the Appellant was a consumer claim within the meaning of s 3A of the Consumer Claims Act in that it was a claim for the payment of a specified sum of money which arose from a supply of services by the Respondent to the Appellant. 5. The Tribunal therefore had jurisdiction to determine the Appellant's claim pursuant to ss 6 and 7 of the Consumer Claims Act. 6. The Tribunal's reasoning, save for the last paragraph of the decision, set out above, is equally applicable to a claim brought pursuant to the Home Building Act and a claim brought pursuant to the Consumer Claims Act. The Tribunal Member did not explicitly refer to the implied warranties arising under s18B of the Home Building Act. However, to the extent that the case was determined by reference to those implied warranties, the guarantees arising pursuant to the Australian Consumer Law would have had the same operation. 7. Had the Tribunal Member applied s18F of the Home Building Act, which has no equivalent in the Australian Consumer Law, that may have constituted an appellable error of law. However the Member did not purport to apply s18F but rather merely noted the effect of the provision. 8. In the course of oral addresses the Panel raised with Mr Hand whether there was any evidence before the Tribunal Member to contradict the evidence of the respondent, supported by correspondence from the manufacturer, that the issues with the floors could be rectified simply and cheaply by the installation of control joints and that the manufacturer was prepared to do this at no charge. Mr Hand conceded that there was no such evidence. 9. To support his submission that the appellant's rejection of the manufacturer's offer was a reasonable course to adopt, Mr Hand relied upon photographs of the state of the floors, which did indeed show some buckling and lifting, and the proposition that no representative of the manufacturer had attended to inspect the floors. Determination 1. We consider there has been no basis shown for the grant of leave to appeal. Although, taken alone, the failure of the Tribunal to find that the absence of control joints rendered the respondent's installation work defective might be said to be against the weight of evidence, there is no obvious deficiency in the finding that the appellant has failed to prove damage. The appellant failed to establish that the extent of rectification works by reference to which the appellant quantified his loss at $15,000 was reasonable or necessary. The evidence was generally to the contrary. 2. The uncontradicted evidence of the respondent was that the buckling and lifting could be easily remedied at low cost. Mr Hand sought to submit that, at the least, the appellant ought to have received a money order in his favour reflecting the $650 plus GST cost which the respondent had initially quoted to rectify the floor. 3. However, in circumstances where the evidence before the Tribunal was that both the respondent and the manufacturer had offered to do the work at no cost to the appellant and there was no evidence before the Tribunal to suggest any reason why the appellant should not have accepted that offer, it cannot be said that the appellant suffered any substantial injustice. 4. It does appear to be the case that the manufacturer had not inspected the premises but the appellant put forward no basis upon which a conclusion could be drawn that an inspection of the premises was necessary in order to conclude that the buckling and lifting of the floor could be rectified. The appellant had provided numerous photographs of the floor. 5. The Tribunal found that the appellant had failed to establish to the necessary standard of proof that he had sustained any loss by reason of the defective provision of services by the respondent. That conclusion was open to the Tribunal. 6. We also find no basis for the grant of leave to appeal in the shortness of the hearing or the absence of legal representation. As Ms Gall pointed out, the Tribunal Member did not deny the appellant an opportunity to put his case. He was given the opportunity to say what he wished to say. It is apparent from the transcripts produced by the parties that both parties had a full opportunity to address the Tribunal and put their case. The shortcomings in the appellant's case arose not from the way in which the hearing was conducted but from his failure to put forward sufficient or persuasive evidence in support his case. 7. In those circumstances we refuse leave to appeal and the appeal will be dismissed. ******** Endnote 1. The Consumer Claims Act was repealed with effect from 1 October 2015 by the Fair Trading Legislation (Repeal and Amendment) Act 2015 (NSW). However pursuant to clause 29 in Part 6 of Schedule 5 to the Fair Trading Act 1987 (NSW), the Consumer Claims Act continues to apply to a claim commenced under the Act prior to 1 October 2015 which was not finally determined at that date. As these proceedings were commenced prior to 1 October 2015 and were not finally determined at that date the Consumer Claims Act continues to apply. 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: 25 July 2016