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. Jurisdiction 1. The Civil and Administrative Tribunal Act 2013 (the Act) provides for appeals to be made to an Appeal Panel of the Tribunal: see s 80 of the Act. Section 80 provides that a party may appeal a decision "as of right on any question of law, or with the leave of the Appeal Panel, on other grounds" (s 80(2)(b)). 2. In addition where an application for leave to appeal is from a decision of the Consumer and Commercial Division of the Tribunal cl 12 of Sch 4 of the Act states that an Appeal Panel may grant leave under s 80(2)(b) of the Act "only 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)." Grounds of appeal 1. The grounds of appeal contained within the Notice of Appeal may be summarised as follows: 1. Mr Mullampy is a qualified and licensed carpenter with fourteen years' experience and his statutory declaration was not adequately taken into consideration; 2. The photos that were submitted into evidence clearly show poor workmanship; 3. The respondent's case was not adequately presented and documented in comparison to the information and supporting documentation provided by the appellant to the Tribunal; 4. The evidence submitted to the Tribunal was truthful, reliable and cogent; 1. Attached to the Notice of Appeal were a number of documents. These included: 1. A letter from the appellant to the Tribunal setting out the history of the transaction and her complaints about the quality of work; 2. A statement dated 7 December 2015 addressed to "Fair Trading"; 3. A statutory declaration of Matthew Mullampy dated 21 March 2016; 4. A statutory declaration of Patricia Anne Camenzuli dated 20 March 2016; 5. A statutory declaration of Cheryl Anne Eagleston dated 18 March 2016; 6. A statement of Zachary Marson dated 12 May 2016; 7. A photocopy page headed "Customer Guide" which appears to contain instructions for sanding and coating of timber floors; and 8. An envelope of photographs. 1. We have treated the Notice of Appeal as relying upon cl 12 of Sch 4 of the Act and in particular cl 12(1)(b), namely that the decision under appeal was against the weight of evidence. We have also treated the appeal as relying on cl 12(1)(a), namely that the decision was not fair and equitable. 2. The Notice of Appeal did not identify an error of law or other ground The appeal hearing 1. The appellant appeared at the appeal hearing by telephone and there was no appearance for the respondent. It was apparent from the Tribunal's file that the respondent had also not appeared at the call over of the appeal. Nor had the respondent filed a reply or any submissions. The only material which the Appeal Panel was required to consider was the Notice of Appeal (and its attachments) as well as the oral submissions made by the appellant during the course of the appeal hearing. Decision 1. The decision under appeal did not appear in express terms to make findings as to the terms of the contract which the appellant and the respondent had entered into. We thought it appropriate to take sworn oral evidence from the appellant as to the terms of the contract and the appellant therefore gave such evidence. Based upon the appellant's evidence we find that the contract between the parties was entered into as a result of a single conversation between the appellant and the respondent by which the respondent agreed to sand and varnish the floors in the appellant's home at Emu Plains for the sum of $2,500.00. It is not clear whether that sum was to include or exclude GST. The appellant's evidence was that she understood the quotation was inclusive of GST but the tax invoice issued by the respondent after the work had been undertaken was for an amount of $2,500.00 plus $250.00 for GST. 2. The appellant stated that the respondent had informed her at the time of giving the oral quotation (which she accepted) that he would "try and blend the kitchen floor with the adjacent floor". The kitchen floor was a newer floor than the remaining floor. The appellant also gave evidence to us that the respondent said he would "do his best" to remove the stains which were in other parts of the timber floor. 3. We find that, based upon the evidence of the appellant, the agreement which the parties entered into was one by which: 1. The respondent would try and blend the kitchen floor with the adjacent floor; and 2. The respondent would do his best to get rid of the stains in other parts of the timber flooring. 1. The appellant's complaint is that the timbering flooring is of different colours, that the stains have not been removed and the kitchen floor remained a different colour. The appellant also complained that the quality of sanding was poor resulting in a rough finish. 2. The appellant also denied that the respondent had warned her of the fact that the stains may not be able to be removed. 3. Having regard to the appellant's evidence it is our view that the decision under appeal was not one which could be described as against the weight of evidence. Nor can it be described as not fair and equitable. The Tribunal accepted the evidence of the respondent that he warned the appellant that he may not be able to remove deep stains. On the appellant's own evidence the most the respondent agreed to do was to try and blend the kitchen with the adjacent floor and "do his best" to remove stains. There was no absolute promise that the respondent would achieve these objectives. Indeed, the evidence of Mr Mullampy includes a statement that he was aware that the flooring in the kitchen would be a different colour when polished because the kitchen floor was new. 4. In the case of Collins v Urban [2014] NSWCATAP 17 an Appeal Panel of the Tribunal set out some guidelines as to how cl 12 of Sch 4 of the Act is intended to operate. That case decided that the Appeal Panel's discretion to grant leave to an appeal under cl 12 is only enlivened if the Appeal Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice because of one or more of the three reasons set out in cl 12 (also set out above). 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. See Collins v Urban at [71]. Elsewhere in that decision the Appeal Panel said that it should be accepted that a substantial miscarriage of justice may have been suffered because of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstances in par (a) or (b) not occurred or if the fresh evidence (par (c)) had been before the Tribunal at first instance, see [76]. 5. Here, we have treated the main ground relied upon as being that the decision was against the weight of evidence. In Collins v Urban the Appeal Panel stated at [77(2)] referring to earlier authorities that that expression was intended to deal with the situation where the evidence "in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach". The Appeal Panel also said at [77(1)] that if there has been a denial of procedural fairness the decision may be said to be "not fair and equitable". 6. In our view, the decision under appeal is based upon findings which were open to the Member on the evidence provided. In addition, the evidence given by the appellant on the appeal concerning the conversation which occurred when the contract between the parties was formed was not sufficient to cause us to take the view that a different outcome would have been achieved had the Tribunal considered that evidence. 7. In Collins v Urban at [80] the Appeal Panel also stated that if the Appeal Panel is satisfied that the appellant for leave to appeal from a decision may have suffered a substantial miscarriage of justice then the Appeal Panel "may" grant leave, but the Appeal Panel is not necessarily obliged to do so. The Appeal Panel at [84] described the principles to be applied in deciding whether to grant leave. These may 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; and 2. It is appropriate to grant leave to appeal only in matters that involve, issues of principle, questions of public importance or an injustice which is reasonable clear, a factual error that was unreasonably arrived at and clearly mistaken or 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 that it would be in the interests of justice for it to be reviewed. 1. We are of the view that in this case the relevant considerations for the granting of leave under cl 12 have not been enlivened. We are of the opinion that there was been no substantial miscarriage of justice. Even taking into account the evidence provided by the appellant as to the terms of the agreement we are not persuaded that the provisions of cl 12 have been satisfied. 2. Additionally, even if we had been satisfied to the contrary that the appellant might have suffered a substantial miscarriage of justice, we do not consider that this is a matter in which a grant of leave would be appropriate. There is no reasonably clear injustice. The appellant has identified no factual error that was unreasonably arrived at and clearly mistaken. Nor can we conclude that the Tribunal went about the fact finding process in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for the decision to be reviewed. 3. As a result of the above conclusions it is necessary for us to refuse to grant leave to appeal and dismiss the appeal. Orders 1. Accordingly, the Appeal Panel makes the following orders: 1. Leave to appeal refused; and 2. The appeal is dismissed. ********** 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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