Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Siad v Viselle & Brennan [2017] NSWCATAP 91 Hearing dates: 7 December 2016 Date of orders: 28 April 2017 Decision date: 28 April 2017 Jurisdiction: Appeal Panel Before: L P Robberds QC, Senior Member S Thode, Senior Member Decision: Appeal dismissed Catchwords: Consent order – appeal – no evidence to show that agreement to settle was not reached Legislation Cited: Nil Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Hector Siad (Appellant) Liliane Viselle and John Brennan (Respondents) Representation: In person (Appellant) In person (Respondents) File Number(s): AP 16/42971 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 26 August 2016 Before: S Hennings, General Member File Number(s): HB 16/34604 REASONS FOR DECISION 1. On 29 July 2016 Liliane Viselle and John Brennan (the Respondents) lodged with the Tribunal an application form seeking an order that Hector Siad pay "me" the sum of $8,300. In that application the reasons for the order were given and they included: Ms Viselle engaged Hector Siad to carry out works at (then the address was given) …. . Ms Viselle outlined her requirements and verbally engaged Mr Siad to carry out the works. Ms Viselle had to enter hospital as the works were performed. Mr Brennan is Ms Viselle's brother in law and was asked by Ms Viselle to inspect the work post completion. …. Mr Brennan prepared a defect report which he forwarded to Mr Siad. No reply was received. 1. The application form itemised dispute details. There were 7 items listed. The reasons for the disputes were given and they comprised allegations of defective work; work not as requested; incorrect size of materials; materials not as specified; ingress of water; and insufficient fixing for weight. For each of the complaints there was a money sum given. Those money sums totalled $8,300 and the dispute details alleged that $8,300 had been paid by direct debit. 2. The parties came before the Tribunal on 26 August 2016 and by consent the following orders were made: By consent, Hector Siad (address given) is to pay Lilianne Viselle (address given) and John Brennan (address given) the sum of $4,000 on or before 14 – Sep – 2016. Reasons: $4,000 Full and final settlement of all claims The Applicants are to retain ownership of all materials on site at (address given). NOTE: If the other party does not comply with the order to pay money, a certified copy of the above money order may be obtained from the Tribunal for the purpose of enforcement action through the Local Court. 1. The order showed that it was made by S Hennings, a Tribunal Member on 26 August 2016. 2. On 26 September 2016 Mr Siad lodged a notice of appeal in the Tribunal. The grounds of appeal were as follows: I believe this is an unfair decision. I was not given the opportunity to repair any mistakes or problems. I was also not given a chance to get a qualified inspector to evaluate the quality of my work. The respondent didn't give me a chance to complete the job, she asked me to leave and not come back to the job. I tried calling a number of times to bring the drawers over for the vanity but she refused to take my calls. I would like to have this decision re-looked at as I purchased all the materials for this job. 1. Mr Siad wrote into the notice of appeal the orders the Appeal Panel should make in the following terms: I should be given the opportunity to finalise the work and then have a qualified inspector evaluate the quality at the job as in my over 35 years of working I have never had a complaint lodged. 1. Mr Siad gave the following details as to why he said the decision was not fair and equitable: The decision was unfair and not equitable because the respondents never made mention of any issues with the work when I was working. One day she showed up and asked me to leave and not come back. Six months later I was given the summons asking for compensation. I was not given the opportunity to finalise the job or fix any of the problems that she had with the work or (sic) I did not get a chance to get a qualified inspector to evaluate the work that I had done. Which in my opinion is of good quality and the drawers I still have in my possession. 1. On the same day Mr Siad lodged with the Tribunal an application for stay of the original decision pending appeal. In response to the question in the application form: "Why do you say the decision should be stayed?", Mr Siad responded: "Because I will repair the job." 2. On 18 October 2016 the respondents lodged with the Tribunal a reply to appeal. Some of the statements in that document included the following: 1. Ms Viselle and Mr Brennan entered into the spirit of conciliation to arrive at this mutually accepted agreement … 2. Materials supplied by Mr Siad do not comply with the Guide to Standards and Tolerances, nor Ms Viselle's brief; 3. It cannot be repaired; it requires replacement as Mr Siad's workmanship is substandard; 4. The replacement of the vanities and other works are already in progress. A reputable licensed company is employed to carry (sic) the replacement works; 5. "Viselle having to accept 60% less than originally requested in order not to prolong this matter as Ms Viselle has incurred holiday rental losses as a result of the bathroom not being completed." 1. From the above the Appeal Panel concludes that: 1. In the application lodged on 29 July 2016 the respondents alleged that they paid to Mr Siad $8,300 for building work carried out by him; the work was unsatisfactory and was of no value to the respondents. The respondents sought an order for payment of this $8,300. 2. The parties entered into conciliation on 26 August 2016 and arrived at an agreement to settle the dispute by agreeing to a consent order that Mr Siad pay to the respondents the sum of $4,000 on or before 14 September 2016. directions 1. On 11 October 2016, the Appeal Panel, constituted by Mr S. Westgarth, Deputy President, gave directions which included a direction that Mr Siad lodge with the Tribunal by 2 November 2016 his written submissions in support of the appeal and that the respondents lodge with the Tribunal by 23 November 2016 their written submissions in opposition to the appeal. 2. On 4 November 2016 Mr Siad lodged his written submissions. Part of those submissions were directed to disputing that his work was unsatisfactory. It was said in the submissions that all that was required were some minor repairs and that the amount claimed was far in excess of what would be required to finish the job. The submissions also stated that Mr Siad was never given the opportunity to finish the job. 3. Those submissions attached certificates of trade tests and training Mr Siad had carried out. Also attached were references as to the standard of other work he had carried out. 4. Importantly however there was no submission made as to the circumstances which led up to Mr Siad's consenting to the order. In the submissions there was no suggestion made that Mr Siad did not agree to the order, that he did not understand what he was consenting to, that he was coerced to consent or that there was any misrepresentation made to him which caused him to consent. In other words there was no submission made that he did not understand that he was consenting to the order being made that he pay the $4,000. 5. At the hearing of the appeal the parties were self-represented. Mr Siad was asked by the Appeal Panel how he could appeal a consent order and his reply was "because it is not true. My job is never bad. I can give references." 6. The Appeal Panel is of the view that that response is not a ground for setting aside the consent order. 7. There is no suggestion in the notice of appeal, nor in the written submissions, nor in anything stated by Mr Siad at the hearing of the appeal that: 1. The parties did not reach an agreement to settle the proceedings by consent order for the payment by Mr Siad of $4,000; 2. Mr Siad did not understand that he had reached an agreement to pay $4,000; 3. Mr Siad did not understand that he was consenting to an order being made that he pay the $4,000 on or before 14 September 2016. 1. The Appeal Panel is of the view that there is no evidence to support the appeal. order 1. The Appeal Panel is therefore of the view that the appeal should be dismissed and the order of the Tribunal is: Appeal 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. 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: 28 April 2017