Antworks Pty Ltd v Zhang [2017] NSWCATAP 60

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Antworks Pty Ltd v Zhang [2017] NSWCATAP 60 Hearing dates: 28 June 2016 Date of orders: 17 March 2017 Decision date: 17 March 2017 Jurisdiction: Appeal Panel Before: J. Harris SC, Senior Member D. Goldstein, Senior Member Decision: 1. Leave to Appeal is refused. 2. The Appeal is dismissed. Catchwords: Necessary evidence to support findings of fact Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Collins v Urban [2014] NSWCATAP 17 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None cited Category: Principal judgment Parties: Antworks Pty Ltd (Appellant) Shixin (Cindy) Zhang (Respondent) Representation: Counsel: Mr Darvell (Appellant)

Solicitors: J.P. Gould (Appellant) File Number(s): AP 16/15067 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Date of Decision: 03 March 2016 Before: S Thode, Senior Member File Number(s): HB 13/11440 & HB 13/29435

Reasons for Decision 1. The decision under appeal determined proceedings in the Consumer and Commercial Division of the Tribunal concerning the construction of a 'granny flat' at the respondent's residence. 2. In these Reasons for Decision we will refer to the appellant as the builder and to the respondent as the owner. 3. The owner's claim was in the sum of $29,461.00 for defective and incomplete work and overpayments. 4. The builder claimed $21,820.00 as the balance of the contract price plus variations in the sum of $7,641.00. It also conceded a credit to the owner in the sum of $9,724.00. 5. The Tribunal Member in detailed written reasons (the 'decision') ordered the builder to pay the owner $14,389.02 and dismissed the builder's claim against the owner. It is against this decision that the builder appeals. 6. The builder's Grounds of Appeal were: 1. The Member erred in law in finding that the Respondent had paid the sum of $93,663.82 to the Appellant under the contract; 2. The Member erred in law in failing to find that the Respondent had paid the sum of $78,893.72 the Appellant under the contract; 3. The Member erred in law in determining the amount paid by the Respondent to the Appellant under the contract; and 4. The Member erred in law in determining the total of $14,389.02 owed by the Appellant to the Respondent. 1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 states: 'Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.' 1. The builder did not provide written submissions in support of its appeal although it provided copies of documents which were in evidence before the Tribunal Member. 2. At the hearing counsel for the builder stated that its grounds of appeal raised questions of law for which no leave was required. The Notice of Appeal at 6B indicated that the builder was asking for leave to appeal which its counsel confirmed, stating that the application for leave was in the alternative. 3. Clause 12(1) of Schedule 4 of the Civil and Administrative Tribunal Act deals with applications for leave to appeal. It states: '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 owner filed a Reply to Appeal in which she supported the orders made by the Tribunal Member for reasons which she provided. 2. The Grounds of Appeal indicate that there are four findings of fact that the appellant relies upon as raising questions of law which entitle it to Appeal without obtaining the leave of the Appeal Panel. 3. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel stated at [20] that a question of law would include: 'Whether there was no evidence to support a finding of fact: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-6; The Australian Gas Light Company v Valuer-General [1940] NSWSt Rp 9; (1940) 40 SR (NSW) 126 at 138.' 1. Counsel for the builder states that 5 paragraphs of the decision given at first instance are in issue, namely paragraphs 37 – 41. Relevantly, the first sentence of paragraph 37 indicates that the evidence at the hearing was not as clear as might have been desired. The Tribunal Member stated: 'The evidence from both sides is impossible to follow' 1. At paragraphs 37 and 38 of the decision the Member stated that the builder submitted that he was paid $78,893.70 and that the owner submitted that she paid $93,663.82 to the builder. 2. Paragraph 39 commences the Member's consideration of this conflict of evidence and how it was to be resolved. In particular [39] dealt with the builder's submission that the true record of payments was to be found on the owner's copy of the contract which had been hand notated with a record of payments as they were made. The Member added the notations on the owner's copy of the contract and found that the hand written notations added up to around $65,000.00 which did not accord with payment amount contended for by either party. This led her to conclude: 'I therefore reject the notations on the contract as a true reflection of payments made.' 1. This finding was based on the evidence before her and the parties' respective positions. 2. The builder's counsel submitted that the hand written notations on the owner's copy of the contract in fact totalled $66,693.70. The builder's evidence in the Appeal included an extract from Tab E of its documents which were before the Member. The page relied upon was a document titled 'Received payment Records from Cindy Zhang' in which the builder had entered payments which it contended it had received from the owner. The builder's submission is that this document includes the amounts notated on the owner's copy of the contract, as well as two additional payments totalling $12,200.00. This led the builder to submit that the total of the hand written notations on the owner's copy of the contract, $66,693.70 + the two additional payments totalling $12,000.00 established the amount of payments contended for the builder, namely the sum of $78,893.70. 3. While these submissions explain the basis upon which the builder submitted before the Tribunal Member that the amount paid by the owner to it was $78,893.70 that, in itself, is inadequate to establish the errors of law for which the builder contends. 4. The Member's decision at [40] deals with the owner's evidence and in particular her explanation in support of her position that she had paid the builder $93,663.82. The owner's evidence was in Tab E of her evidence before the Member which was provided to us in the Appeal. 5. At [40] of the decision the Member stated: 'It is undisputed that the parties dealt in cash payments only (but for one cheque). As best I can I have weighed up the evidence by both sides. I find that the invoices as provided by the applicant provide a more persuasive form of evidence. All amounts noted in the invoices are noted in dollars and cents (for example $5,035.69) it is unusual and indeed impossible to hand over cash to that exact amount. Be that as it may, it appears that the homeowner recorded the payments one at a time and these are dated on separate subsequent dates and are signed by the builder. This supports the proposition that these invoices are contemporaneous documents of payments made. I accept and prefer the homeowner's evidence and find that she has paid $93,663.82 to the builder to date.' 1. It is clear that after considering the evidence the Tribunal Member preferred the evidence of the owner and made a finding in her favour that the amount that she had paid to the builder was in the sum of $93,663.82. 2. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Mason CJ stated at [87] – [89] '87. The question whether there is any evidence of a particular fact is a question of law: McPhee v. S. Bennett Ltd. (1934) 52 WN (N.S.W.) 8, at p 9; The Australian Gas Light Co. v. The Valuer-General [1940] NSWSt Rp 9; (1940) 40 SR(NSW) 126, at pp 137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light, at pp 137-138; Hope v. Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, at pp 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd. [1941] HCA 33; (1941) 65 CLR 150, at pp 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473, at pp 481, 483. 88. But it is said that "(t)here is no error of law simply in making a wrong finding of fact": Waterford v. The Commonwealth per Brennan J. at p 77. Similarly, Menzies J. observed in Reg. v. The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644, at p 654: "Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of factwould not disclose an error of law." 89. Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place'