Prycia (Prycik) v Craig Ogilvie t/as Craig Ogilvie Building [2017] NSWCATAP 237

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Prycia (Prycik) v Craig Ogilvie t/as Craig Ogilvie Building [2017] NSWCATAP 237 Hearing dates: 6 November 2017 Date of orders: 06 November 2017 Decision date: 06 November 2017 Jurisdiction: Appeal Panel Before: R. Hamilton SC Senior Member G. Sarginson Senior Member Decision: 1. Leave to appeal refused. 2. Appeal dismissed. Catchwords: APPEAL---Consumer claim---No error of law established---No grounds for leave to appeal established Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil Liability Act 2002 s 16 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Ryan v BKB Motor Repairs Pty Ltd [2017] NSWCATAP 39 Category: Principal judgment Parties: John Prycia (Prycik) (Appellant) Craig Ogilve t/as Craig Ogilvie Building (Respondent) Representation: Appellant: In person

Respondent: In person File Number(s): AP 17/36538 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Consumer and Commercial Division Jurisdiction: Consumer and Commercial Division Date of Decision: 20 July 2017 Before: K Ross, Senior Member File Number(s): Gen 17/14482

reasons for decision 1. An ex tempore decision and reasons were given by the Appeal Panel on 6 November 2017. The appellant subsequently requested written reasons under Section 62 of the Civil and Administrative Tribunal Act 2013. The following is the reasons that were delivered on 6 November 2017. 2. The factual background to this dispute that gives rise to the appeal is that it involves a door at residential premises that was supplied and installed by the respondent. The amount of the dispute involves an amount of less than $5,000. The matter was listed for hearing at the New South Wales Civil and Administrative Tribunal in Newcastle on 19 July 2017. 3. Both parties appeared at the hearing before the Tribunal on 19 July 2017; both parties gave evidence; and there was documentary evidence filed and served by both parties. Relevantly the appellant relied upon an expert report of Mr Mal Wright dated 12 April 2017 and the respondent relied upon an expert report of Mr Gary Gorton of KGS Building Consultants Pty Limited t/as Craig's Building Advisory Service dated 29 May 2017. 4. In a decision of the Tribunal dated 20 July 2017 with written reasons, the Senior Member found that the appellant had proved that the door had not been installed with due care and skill. However, the Senior Member found that the rectification that was required did not involve the door being removed and replaced. Her written reasons of 20 July 2017 refer to the evidence in detail. 5. The Senior Member found that the expert report of Mr Wright did not clearly indicate that the door needed to be replaced and in any event there is no evidence either by Mr Wright or any other evidence in the proceedings to establish the cost of rectification other than the evidence that was put forward by the respondent. In those circumstances the Senior Member found that the cost of rectification was $150. 6. The Senior Member also rejected the claims by the appellant for damages for distress by reason of the threshold provisions under s16 of the Civil Liability Act 2002 and there were no special circumstances under s60 of the Civil and Administrative Tribunal Act 2013 to justify a costs order. 7. The appellant filed an appeal on 22 August 2017. The grounds of appeal can be relevantly summarised in the following manner: 1. The Senior Member erred by not accepting the appellant's expert. 2. The decision was against the weight of evidence, and 3. The decision was not fair and equitable, in particular because the appellant had tried to file or rely upon a CD with further photographs and a video tape of the door that he had taken. 1. At the appeal hearing the appellant also informed the Appeal Panel that despite the comments made in the report of his expert Mr Wright, he had not been able to obtain any quotations from tradespersons to perform either rectification or replacement of the door. 2. Under s 80 of the Civil and Administrative Tribunal Act 2013 an appeal can be made if an error of law has occurred. 3. Under cl12 of Sch4 of the Civil and Administrative Tribunal Act 2013 an appeal can be made on grounds other than an error of law if a substantial miscarriage of justice has occurred and the Tribunal grants leave to appeal. 4. To demonstrate a substantial miscarriage of justice there must be a finding that the decision was not fair and equitable or against the weight of evidence or there was fresh evidence now available that was not reasonably available at the date of hearing. 5. We are not satisfied that the appellant has shown an error of law has occurred or a substantial miscarriage of justice has occurred. The Senior Member's reasons explain in detail the evidence of each party, including the expert evidence of each party, and explain why she found the door only required adjustment and not replacement. 6. The appellant's expert Mr Wright did not clearly state in his report that the door required total replacement, but due to the issues that had been raised and the dissatisfaction of the appellant the appellant should obtain quotes. 7. No error has been established on the reasoning process that the Senior Member took in the manner in which she made her findings or applied the relevant law. 8. We are not satisfied that the appellant has shown that a substantial miscarriage of justice has occurred to justify leave to appeal being granted. 9. Applying the principles set out in Collins v Urban [2014] NSWCATAP 17, the decision of the Senior Member is consistent with the evidence that was available to her and provided by each party at the hearing. 10. An appeal to the Appeal Panel is not simply an opportunity for a dissatisfied party to reargue its case. An error of law, or grounds giving rise to leave to appeal under cl 12 Sch 4 of the Civil and Administrative Tribunal Act 2013 must be established: (Ryan v BKB Motor Repairs Pty Ltd [2017] NSWCATAP 39). 11. It is abundantly clear from the Senior Member's reasons that she considered the evidence of both parties and clearly explained why she accepted the evidence of the respondent's expert on the cost of rectification. 12. The Senior Member also clearly explained in her findings the evidence regarding the defect and what type of rectification was required. The dissatisfaction of the appellant with the outcome obtained in the decision is not sufficient of itself to establish an error of law or a substantial miscarriage of justice. 13. The Appeal Panel makes the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 1. Further, because the appeal has been dismissed on the merits it is unnecessary for the appeal panel to make any findings as to whether or not the appeal was brought within time, or whether the time to appeal should be extended. 2. Finally, where in this decision we have made references to "the door", such references include the sidelight, as that is the way the evidence was presented to the Senior Member at the hearing on 19 July 2017. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar