Fryer v Owston t/as Rowans Floor Sanding [2016] NSWCATAP 202

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fryer v Owston t/as Rowans Floor Sanding [2016] NSWCATAP 202 Hearing dates: 22 August 2016 Date of orders: 08 September 2016 Decision date: 08 September 2016 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President J Wakefield, Senior Member Decision: (1) Leave to appeal refused; and (2) The appeal is dismissed. Catchwords: APPEAL – leave, Schedule 4 clause 12 of the Civil and Administrative Tribunal Act 2013, against the weight of evidence, not fair and equitable, exercise of discretion Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Fair Trading Act 1987 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: Christine Fryer (Appellant) Rowan Keith Owston t/as Rowans Floor Sanding (Respondent) Representation: Solicitors: Christine Fryer (Appellant in person) File Number(s): AP 16/28693 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 16 May 2016 Before: R Titterton, Senior Member File Number(s): GEN 16/03014

reasons for decision

Introduction 1. The appeal arises out of a decision made in the Consumer and Commercial Division of the Tribunal on 16 May 2016. The appeal was filed on 20 June 2016. The Notice of Appeal states that the decision was received by the appellant on 18 May 2016. Therefore, the appeal may have been filed a few days beyond the time required by the time required by r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules). However, in view of our decision to dismiss the appeal it is not relevant to consider extending the time for the lodgement of the appeal. 2. The appellant commenced an application in the Tribunal seeking an order that she does not have to pay the amount of $2,750.00 which the respondent had sought to recover from her. The application stated that the appellant had contracted with the respondent for the floors in her dwelling to be sanded and varnished but the work undertaken was defective. The Tribunal's jurisdiction to deal with the dispute was given under Part 6A of the Fair Trading Act 1987 (as amended) NSW and the order sought was available under s 79N of that Act. 3. The appellant's application came before the Tribunal for hearing on 16 May 2016. The order of the Tribunal was that the appellant's application be dismissed. The appellant appeals that decision. 4. The following represents a summary of the essential elements of the decision under appeal: 1. The applicant seeks an order that she does not have to pay the respondent the sum of $2,750.00 said to be due and owing in respect of floor sanding services carried out at the applicant's property from about 7 November 2015; 2. The applicant submitted that the work conducted was defective particularly having regard to the difference in the final colours of the timbers; 3. The respondent submitted that he had made it clear to the applicant when he quoted for the job that he could not guarantee the final outcome as the floor was badly stained and he was not certain that the stains could be sanded away; 4. The photographic evidence provided by the applicant established that the finished floor boards have colour variations throughout the property; 5. The applicant's evidence included that of a carpenter, Mr Mullampy who said that the floor was not sanded back to bare timber. His evidence was that as the colour in each room is different and all the timber flooring is original, if the flooring had all been sanded back to "bare" then the polished timber would have been the same colour; 6. The respondent contended that floor boards could only be sanded back to some two or three millimetres and deep stains were not able to be removed by sanding. The respondent claimed that he had warned the applicant about this; 7. The Tribunal found that the evidence of the respondent was to be preferred over the evidence of the applicant because the applicant conceded that she was not able to remember a lot of what had occurred; and 8. The applicant had not been able to satisfy the Tribunal that she was able to prove her case on the balance of probabilities, namely that her case was more likely than not to be true.