Liang v Wincrest Group Pty Limited [2017] NSWCATCD 79

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Liang v Wincrest Group Pty Limited [2017] NSWCATCD 79 Hearing dates: 24 August 2017 Date of orders: 24 August 2017 Decision date: 07 September 2017 Jurisdiction: Consumer and Commercial Division Before: Ian Bailey AM SC Senior Member Decision: On 24 August 2017 the following orders were made.

1. Application dismissed.

2. Separate orders made for submissions as to costs and as to the Respondent's Cross-Application. Legislation Cited: Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: Ann Liang (Applicant) Wincrest Group Pty Limited (Respondent) Representation: Helen Pan for Applicant with the Applicant in person; Gerard Caruana (Manager) for Respondent

Both parties self-represented File Number(s): HB 17/21716 Publication restriction: Nil

Reasons for decision 1. At the hearing of this application HB 17/21716 on 24 August 2017 I dismissed the claim by the Applicant. 2. These reasons are provided in addition to the explanation and reasons given during the hearing.

Procedural Background 1. The Application was filed on 4 May 2017 seeking $78,603.00. The amount claimed included $58,718 alleged to have been overcharged; credits of several amounts totalling $18,409 and $908 which the Applicant alleged ought to have been allowed. 2. The Application was not in a conventional form and included a lengthy narrative alleging misleading and inaccurate statements by the Respondent. There were numerous contentions about how many items within the contract were incorrectly calculated. There was however very little explanation as to how these contentions could be explained. 3. On 19 May 2017 the Tribunal wrote to the Applicant including: On 14/5/2017 the Registrar received your application for an order. If you have attempted to resolve your dispute with the assistance of NSW Fair Trading, documentary evidence must be provided. The documentary evidence provided must concern the dispute which is the subject of your application…. If you do not provide the documentary evidence by 26/5/2017 the Registrar must not accept your application and your file will be closed. 1. On 25 May 2017 the Applicant delivered to NCAT a bundle of almost 200 documents the vast majority of which were copies of the contract documents. There were many notations and highlighting which do not explain the issues involved. This bundle of documents was not provided to the Respondent. 2. At the directions hearing on 23 June 2017 Orders were made including: 3. The Applicant have leave to amend the claim by 07-Jul-2017 by sending a copy of the amended claim to the Divisional Registrar and the other party, and including: A list of each item claimed, specifying the monetary amount of each claim. A copy of all invoices, quote, statements and other documents which will be relied upon at the hearing including a submission identifying the legal basis for the claim. 4. Should the Respondent intend to bring a cross application, the Respondent shall on or before 07-Jul-2017 lodge an application with the Tribunal specifying ….. 6. The applicant shall provide to the Respondent and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the applicant intends to rely at the hearing by 07-Jul-2017. Should the respondent bring a cross application, any documents in reply to such cross application are to be given to the Tribunal and the respondent by 21-Jul-2017. The documents to be provide will always include on the part of an applicant or cross-applicant a brief outline of the claim, stating in numbered paragraphs the orders (for example, payment of money, repair of defective work) that is sought, and the reasons for seeking those orders. The documents to be provided will always include on the part of a respondent or cross-respondent a brief outline of the defence, the reasons for opposing the claim or cross-claim, in numbered paragraphs that correspond to the numbers in the outline of claim as far as practicable. Other documents to be provided, depending on the case, will usually include: A chronology setting out the dates on which important events (for example, the signing of the contract, the commencement of building works) took place. The contract, if there is a written contract, or a written statement explaining how the parties agreed for the building work to be done. ….. Any bills, invoices, receipts, accounts bank statements or other evidence of requests for payment or of payment relevant to the case. Any experts' reports on which the applicant intends to rely at the hearing, which should, as far as practicable, be numbered paragraphs corresponding the outline of claim. Any statements by witnesses other than experts on which the applicant intends to rely at the hearing. Any relevant photographs, video or audiotapes, or other evidence and…. Parties may not present any evidence in chief, whether spoken or written, at the hearing of their case unless that evidence has already been provided to the Tribunal and the other party/ies in accordance with Tribunal directions, unless the Tribunal grants leave to do so in accordance with the Procedural Directions. 1. On 7 July 2017 the Respondent filed Points of Cross Claim seeking only the payment of interest on late payments by the Applicant during the performance of the contract. It is noted that the total amount claimed by the Respondent under the contract has been paid. The Applicant has not provided any response to the Cross Claim. 2. On 6 July 2017 the claim was fixed for hearing on 24 August 2017. 3. On 7 July and 19 July 2017 the timetable fixed on 23 June 2017 was extended without alteration to the date for hearing. 4. On 20 July 2017 the Applicant delivered an "Updated Claims List": To whoever it may concern: This is a list of additional claims against Wincrest Group Pty Ltd that were not mentioned in past documents. * (A claim concerning a plastic water pipe) * (A claim for the cost of tidying up the site including an invoice for $1,210) * (A complaint about the delay in the delivery by the PCA of an Occupation Certificate.) * (A claim for $6,000 for delay to completion) * (A complaint about an "unreasonable and unexplainable service fee charge for traffic control".) We request a total sum of $7,508.00 to be claimed. * (A claim for a refund of an amount paid for delay to the commencement of the contract, the resolution of the DA and the work required by the Council for the driveway. It is noted that the site plan within the contract drawings states that the driveway was to be provided by the owner.) [The claim for this extra cost was paid by the Applicant before work commenced.] Total sum amount to be claimed is $33,793.00 1. It seems that the total amount claimed by the Applicant was $112,396.00. 2. Apart from delivering the bundle of documents delivered to NCAT on 25 May 2017, the Applicant has not filed any documents by way of evidence or submissions. Even if the Applicant wished to rely on this bundle to prove the claims the fact is that they have never been provided to the Respondent. 3. Notwithstanding the clear and careful words used in the Tribunal's Orders made on 23 June 2017, see [7], the Applicant claims to have not understood that in order to succeed in making the claims in the Application there would need to be some material tendered to prove them. 4. In the course of the hearing the Tribunal explained that not only was there no evidence which could prove the claims, there was no document prepared by the Applicant which explains how the claims were calculated. The directions made on 23 June 2017 were unambiguous, in particular the warning at the end of the orders. 5. The complete absence of evidence meant that, consistently with the Guiding principle in section 36 of the Civil & Administrative Tribunal Act 2013 and many decisions of the Tribunal in such circumstances there was no alternative other than that the Application be dismissed. 6. The Respondent, albeit only shortly before the hearing, provided a response to the Updated Claims List which provided answers to most of the matters raised. 7. A most compelling concern of the Tribunal was that not only was there no evidence in support of the claims made by the Applicant, there was no coherent statement outlining the legal basis for the majority of the claims. For example no attempt had been made to develop the lengthy allegations of overcharging into an explanation as to how this occurred. 8. The Tribunal explained during the course of the hearing that the mere propounding of a claim, without any explanation as to the legal basis of the claim and more significantly without any guidance as to how the claim was calculated, was wholly unacceptable and doomed to fail. 9. The total absence of supporting evidence was, in the circumstances, fatal for the Application. Ian Bailey AM SC Senior Member Civil and Administrative Tribunal of NSW 7 September 2017 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: 13 September 2017