Civil and Administrative Tribunal New South Wales Medium Neutral Citation: P & N NSW Pty Ltd T/As Euro Solar v James [2017] NSWCATAP 138 Hearing dates: 31 May 2017 Date of orders: 22 June 2017 Decision date: 22 June 2017 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President J Lucy, Senior Member Decision: (1) The application for an extension of time in which to appeal is dismissed; and (2) The appeal is dismissed. Catchwords: Extension of time to lodge appeal – quotations as evidence Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Khan v Kang [2014] NSWCATAP 48 Texts Cited: Nil Category: Principal judgment Parties: P & N NSW Pty Ltd T/As Euro Solar (Appellant) Mark James (First Respondent) Bobbi-Lea Sutherland (Second Respondent) Representation: Counsel: YS Seomangal (Appellant) Solicitors: YS Lawyers (Appellant) File Number(s): AP 17/11887 Publication restriction: Unrestricted Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 12 January 2017 Before: R Harris, General Member File Number(s): GEN 16/22852 reasons for decision Background 1. This is an appeal from a decision made in the Consumer and Commercial Division of the Tribunal published on 12 January 2017. We will refer to the decision as "the Decision". In the proceedings, the applicants sought compensation for damage to the roof of their home alleged to have been caused by the respondents' subcontractor who installed solar panels on the roof. 2. The result of the Decision was that the applicants were awarded compensation in the sum of $9,231.53. The respondent in the proceedings (the party contracting to install the solar panels) has appealed the Decision. We will refer to the installer as the appellant and the applicants at first instance as the respondents. 3. The appellant received the Decision on 16 January 2017 and lodged the Notice of Appeal on 12 March 2017. Accordingly, the appeal was lodged out of time. It should have been filed within 28 days of 16 January 2017 (see cl 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (the Rules)). The appellant makes an application for the Appeal Panel to extend the time for lodgement of the appeal and therefore invokes the power of the Tribunal provided under s 41 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). The Decision 1. The Decision may be summarised as follows: 1. The respondents purchased the home in August 2015 and had obtained a pre-purchase inspection report. The solar panels were installed by the appellant or by its subcontractor, Mr Ingersol in December 2015; 2. The respondents' evidence was that there were no dents on the roof prior to the installation but there were 36 dents in the roof in the vicinity of the solar panels afterwards. The respondents relied upon a quotation from JMB Plumbing dated 17 March 2016 which quoted a sum of $13,187.90 (inclusive of GST) to repair "roofing sheets around solar system". The quote stated that roofing sheets need replacing: That have been dinted durning (sic) installation of solar system. As all dings are in direct area of solar, appears that no care was taken to stop sheets from being dinted The quote also stated that the solar system will need to be removed to "replace sheets at additional charge". 1. Mr Ingersol gave evidence that he had installed the solar system and claimed that the roof was already damaged; 2. Mr Ingersol's evidence was that the respondents had signed an acknowledgement that the roof was damaged before installation. He acknowledged a couple of dents before he commenced work and he acknowledged that he had put some dents in the roof during installation. He gave evidence that he had been told by another business, East Coast Roofing, that the roof could be repaired by placing profile caps over the dents; 3. The Decision found that the respondents' evidence was "by and large supported by the photographs, the pre-purchase report and the quote from JMB Plumbing"; 4. The Decision found that the quote from JMB Plumbing did not comply with the directions issued by the President of the Tribunal concerning tendering expert evidence but that fact did not make the report inadmissible. Rather, it was a question of how much weight should be given to it; 5. The Decision found that the evidence from JMB Plumbing came from a licenced plumber and was the best evidence submitted by either party. The Tribunal accepted that evidence; 6. The Decision found that Mr Ingersol was an electrician and not qualified to express some of the opinions he did; 7. The Decision found that the use of profile caps would not be an appropriate method of repair given that the Tribunal was satisfied that there were 36 dents on the roof; 8. The Decision found that the appellant's services had not been provided with due care and skill and were in breach of the consumer guarantee contained in the Australian Consumer Law (ACL); 9. The Decision found that the acknowledgment signed by one of the respondents that the roof was already damaged did not preclude their claim; 10. The respondents were entitled to compensation for the reasonable costs for the repair of the roof which the Tribunal found to be the replacement of that part of the roof that was damaged in accordance with the quote from JMB Plumbing; and 11. The Decision calculated the damage by reference to the JMB Plumbing quote less 30% being an amount conceded by the respondents having regard to the age of the roof. Accordingly, the order made by the Tribunal was that the respondents were entitled to compensation in the sum of $9,231.53. Notice of Appeal and Grounds of Appeal 1. The Notice of Appeal filed on 12 March 2017 contains the following grounds of appeal: 1. The Tribunal did not give sufficient weight to several defects highlighted in the pre-purchase inspection report. Defects were noted on pages 9 and 10 of that report. The Customer Acknowledgment signed by both parties acknowledged that roof damage existed prior to the installation; 2. Neither party provided an expert report. The evidence from JMB Plumbing was merely a quotation; 3. The conclusion of JMB Plumbing that no care was taken was made without evidence and contrary to the evidence of pre-existing damage; 4. The Tribunal was in error to reject the evidence of Mr Ingersol who was highly experienced in installing solar panels on roofs; 5. In any event, Mr Ingersol agreed to install a number of profile caps but the respondents refused to permit that to occur; and 6. The award was unjustified given the pre-existing damage and the appellant has been ordered to pay "towards a new roof". 1. The appellant did not identify, in its Notice of Appeal, the above grounds as errors of law, nor did it identify those grounds as grounds requiring leave. 2. The appellant also contended that: 1. The award of $9,231.53 constitutes an injustice which is reasonably clear and therefore satisfies the principles contained in Collins v Urban [2014] NSWCATAP 17; and 2. In addition, the Tribunal did not have regard to or give weight to the evidence of Mr Ingersol and gave inappropriate weight to the evidence of JMB Plumbing. 1. The Notice of Appeal requires the appellant to indicate the orders which the Appeal Panel should make. Here, the appellant submitted that the Appeal Panel should make an order that the appellant undertake the following work in a proper and workmanlike manner: a) repair the dents in the respondents' roof by installing profile caps; and b) painting the profile caps the same colour as the roof colour; and/or c) any other order the Tribunal deems appropriate in the circumstances 1. The appellant proposed the above order but on the basis that the respondents first repair and remedy the defects on the roof capping to ensure that the roof sheets are securely fastened and not loose. 2. The Notice of Appeal contained the following further grounds of appeal: 1. that the Decision was not fair and equitable in that the sum awarded is not commensurate with the "13 dents caused by the appellant's installer". The award unjustifiably enriches the respondents; and 2. the Decision was against the weight of evidence. Mr Ingersol's evidence and photographs were not given appropriate weight when compared with the evidence relied upon by the respondents. The quotation from JMB Plumbing was "biased" in that it attributed fault to the appellant. Extension of Time 1. The Notice of Appeal also recorded that the appellant requires an extension of time and set out the chronological developments that caused the appellant to file the Notice of Appeal out of time as follows: 1. The appellant emailed its solicitor on 30 January, 3 February and 6 February 2017 giving instructions to appeal. However, the solicitor was overseas until 8 February 2017; and 2. During the period from the solicitor's return on 8 February 2017 until when the Notice of Appeal was filed on 12 March 2017, the solicitor was both dealing with his "workload backlog" and caring for his mother who was suffering severe ill health. He was not able to file the appeal until 12 March 2017. Reply to Appeal 1. The respondents have filed a Reply to Appeal opposing the appeal generally and in particular, opposing the application for an extension of time. Amended Notice of Appeal 1. The solicitor for the appellant filed an amended Notice of Appeal received by the Tribunal on 31 March 2017. That document stated the following in summary: 1. The Tribunal made an error of law "by elevating the evidence" of JMB Plumbing and by disregarding Mr Ingersol's evidence; 2. The Tribunal made an error of law by not taking into account the Customer Acknowledgement. That document was signed by one of the respondents prior to the installation work being commenced and it contained the following acknowledgment: I have been informed about the damaged roof prior to solar system installation by the solar accredited installer, and have instructed the accredited solar installer to install the system. I understand that I would have to undertake additional maintenance measures for the roof after the solar system installation including (but not limited) to measures for conducting the maintenance tasks. 1. The Tribunal made an error of law in finding that the services of the appellant had not been provided with due care and skill. The submission stated that the Decision did not "set out the test for negligence" and that there was no evidence of negligence. Appellant's Written and Oral Submissions at Hearing 1. The appellant's submissions repeat the arguments in favour of the Appeal Panel extending the time for the lodgement of the appeal. The appellant relies upon the decision of an Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 in support of its argument that time should be extended. The appellant submitted that to refuse the application for an extension of time would work an injustice, that the length of the delay was less than a month and that there were reasons for the delay as summarised above. Further, the appellant submitted that it has a fairly arguable case relying upon errors of law which have been referred to in the above paragraphs. 2. Finally, the appellant argues that respondents have not suffered any prejudice by reason of the delay. 3. The appellant's written submissions also submit that the amount awarded is unjust because it requires the appellant to contribute towards a new roof for the respondents in circumstances where the old roof had pre-existing damage. The submissions repeat earlier submissions to the effect that JMB Plumbing's evidence was biased in attributing fault to the appellant without clear evidence and was given undue weight by the Tribunal. 4. The appellant's submissions also state that there was evidence that Foxtel satellite installation staff walked on the roof prior to the solar system being installed and the Tribunal erred in concluding that the Foxtel installers had no reason to go to the section of the roof where the solar panels were installed. The appellant submits that the possibility of the Foxtel installers causing the damage was unjustifiably ruled out. 5. The written submissions repeat the appellant's argument that the Tribunal erred in not applying any objective test to the requirement that the appellant was to undertake the work with due care and skill. In the appellant's submission, there was no evidence that Mr Ingersol was careless or that his work lacked due care and skill. 6. At the hearing, the solicitor for the appellant sought to adduce fresh evidence asserting that there was evidence of a friendship existing between JMB Plumbing and one of the respondents. The evidence concerned material appearing on Facebook. We refused to accept the tender of that evidence upon the basis that it was not evidence that was not reasonably available at the time of the first instance hearing. Respondents' Written Submission and Oral Submissions at Hearing 1. The respondents had made brief submissions opposing the appeal and seeking to maintain the existing orders. They also made the point that there was evidence before the Tribunal at first instance as to the cost of replacing the whole of the roof: see the quotation from John Rootes totalling $21,000.00. Accordingly, the respondents disputed the argument that the appellant has been ordered to pay for the cost of replacing the roof. Submissions in Reply 1. The solicitor for the appellant made submissions in reply. Consideration 1. In our view, the application for an order extending time should be refused and the appeal should be dismissed. Orders to that effect will be made and our reasons follow. 2. This is an internal appeal regulated by s 80 of the NCAT Act. Such an appeal may be made as of right on a question of law (s 80(2)(b)) or with leave on other grounds as regulated by cl 12 of Sch 4 of the NCAT Act. 3. The decision in Jackson sets out the principles relevant to a consideration of whether time should be extended. As stated in that case, those considerations must be exercised having regard to the statutory command in s 36 of the NCAT Act that the guiding principle for the conduct of proceedings before the Tribunal is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings". For the reasons stated in the Jackson case, time limits should generally be strictly enforced. Exceptions are appropriate where it would be in the interests of justice to extend time. The considerations relevant to considering whether to grant an extension of time are to be exercised against the backdrop that the discretion can only be exercised upon proof that strict compliance with the rules will work an injustice. The relevant considerations are: 1. The length of the delay; 2. The reason for the delay; 3. The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and 4. The extent of any prejudice suffered by the respondent (to the appeal). 1. Here, the length of the delay was approximately 29 days or, in other words, double the requirement of 28 days set out in the Rules. In our view, that delay is not insignificant. 2. In our view, the reason for the delay is inadequate. The appellant instructed its solicitor reasonably promptly but took no steps to ensure that the solicitor was attending to the appellant's instructions. The solicitor was absent overseas for a period and then otherwise engaged following his return. The appellant appears to have done nothing other than to offload the responsibility of filing the appeal to its solicitor. There was no evidence that the appellant was incapable of attending to the filing of the appeal itself or instructing another solicitor to do so. 3. There is no obvious prejudice to the respondents with respect to the delay other than the fact that the resolution of the dispute has continued for a longer period than it would have done had the Notice of Appeal been filed within time. 4. This brings us to a consideration of the appellant's prospects of success. We will deal with that aspect in the following paragraphs. 5. The Decision relied significantly on the quotation from JMB Plumbing. In respect of the appellant's contention that the JMB Plumbing quotation was not an expert's report, in our view, simply because JMB Plumbing provided a quotation does not mean that that evidence is to be ignored. An Appeal Panel in the case of Khan v Kang [2014] NSWCATAP 48 stated the following: 50 A quotation from a supplier willing to rectify defects or complete incomplete work can, depending on the circumstances and the nature and content of the quotation, constitute evidence of the defects or incomplete work and of the amount required to remedy the defective work or complete any incomplete work. For example, if the person providing the quotation was suitably qualified or experienced, inspected the work, identified defects or incomplete work on that inspection, recorded his or her observations in the quotation and gave a price to rectify or complete the work, it is difficult to understand why that quotation would not provide evidence in support of a claim for defective or incomplete work. The weight to be given to the evidence would, of course, depend upon many factors. Nonetheless, it would be wrong to conclude that simply because an applicant relied only upon a quotation or quotations for the rectification or completion of work that there was no evidence to support the claim that the work was defective or incomplete. 1. The person providing the quotation was a licensed roof plumber. It was not contended that he was not licensed to do the relevant work. Accordingly, in our view, there is no error by the Tribunal in the approach it took in considering and replying upon the JMB Plumbing quotation. 2. Next, we reject the appellant's submissions that the JMB Plumbing quotation was biased because it attributed blame without providing evidence. It is clear that the author of the quotation applied the logic that because the "dings" were in the direct area of the solar panels, it therefore appeared that no care was taken during the installation of the solar panels. There was no dispute that the "dings" were in that area. In our view, the Tribunal was entitled to rely upon that observation as a basis for its determination that the installation had not been undertaken with due care and skill. 3. In respect of the appellant's contention that the evidence of Mr Ingersol had not been given appropriate weight, in our view, it was reasonable for his evidence to have been given less weight, given the fact that he was not independent. It was his conduct, or alternatively the conduct of those operating under his supervision, which was the subject of the respondents' complaint. He could not, in those circumstances, be relied upon as an independent witness. That is not to say that his evidence was not to be taken into account, but in our view, no error was displayed in the Decision by giving the evidence of JMB Plumbing greater weight than Mr Ingersol's evidence. 4. The appellant's reliance upon the acknowledgment does not assist the appellant. The acknowledgment (the terms of which have been set out earlier in this decision) merely acknowledges that the roof had pre-existing damage. That acknowledgement does not rule out the possibility of damage occurring during the installation. The evidence of JMB Plumbing provides such evidence. 5. We reject the contention made by the appellant that there was evidence that the Foxtel installers may have caused the damage. The contention appears to be speculative and the evidence of the respondents is to the contrary, namely that the Foxtel installers were active on a different portion of the roof from that where the solar panels were installed. 6. We refer to the contention that the pre-purchase inspection report was given insignificant weight. That report identified some defects on the roof. There was no evidence that those defects were in the same area as the area addressed by the JMB Plumbing quotation and therefore impugned the reliability of the JMB Plumbing quotation. The appellant's contention that the offer to install profile caps should have been taken into account is rejected. The tribunal found that there was no expert evidence as to the method of repair proposed by the appellant and found that Mr Ingersol was not relevantly qualified to provide such evidence. 7. Finally, we reject the appellant's submission that the effect of the order is to require the appellant to pay for a new roof. The evidence of JMB Plumbing indicates that the area covered by their quotation is limited to the area where the solar panels were installed and there was a further reduction in the amount of the award of 30%, having regard to the existing age and condition of the roof. 8. Having regard to the above, we are of the opinion that the appellant's prospects of success are poor at best, and cannot be described as fairly arguable. 9. The lack of prospects of success militates against granting an extension of time. In our view, the appellant has not shown that strict compliance with the Rules for the lodgement of an appeal would work an injustice upon the appellant. Orders 1. For the above reasons, the Appeal Panel makes the following orders: 1. The application for an extension of time in which to appeal is dismissed; 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. 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: 22 June 2017