Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Singh v Mohibi t/as Spotless Finishes Painting and Decorating [2018] NSWCATAP 115 Hearing dates: 8 May 2018 Date of orders: 17 May 2018 Decision date: 17 May 2018 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member R Perrignon, Senior Member Decision: 1. The appeal is allowed and the decision made on 23 February 2018 is set aside. 2. The proceedings are remitted for rehearing by the Tribunal, the parties being permitted to adduce further evidence. Catchwords: PROCEDURAL FAIRNESS- absence of relevant evidence to support adjournment application- adequacy of reasons for conclusions. RESIDENTIAL BUILDING WORK- unenforceable contract- requirements for written contract- licence number- statutory warranties- quantum meruit as alternative claim Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 AHB v NSW Trustee and Guardian [2014] NSWCA 40 Category: Principal judgment Parties: Appellant: Harmindar Singh Respondent: Shukrullah Mohibi t/as Spotless Finishes Painting and Decorating Representation: Appellant: In person Respondent: In person Solicitors: Appellant: Not applicable Respondent: Not applicable File Number(s): AP 18/13866 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Opportunity Division Citation: Not applicable Date of Decision: 03 February 2018 Before: C Campbell, General Member File Number(s): HB 18/06820 reasons for decision Introduction 1. On 23 February 2018 the Tribunal made an award against the appellant in favour of the respondent in the sum of $8750.00. This amount represented the balance due under a contract to do residential building work at the premises of the appellant at Auburn. The Tribunal provided written reasons which form part of the order for payment which the Tribunal made on that day. 2. The work consisted of both external and internal painting. Because it was not solely internal painting, it was not work excluded from the definition of residential building work in consequence of the provisions in Sch 1 cl 3 and 5 of the Home Building Act 1989 (NSW) (HB Act). The contract sum was $21,000.00 being the amount of a quotation dated 21 August 2017 (quotation). 3. The respondent traded under the business name Spotless Finishes Painting and Decorating. The respondent had filed an application in the Tribunal on 9 February 2018. In that application the respondent said he had completed the painting work and that the appellant had failed to pay him the balance due. The appellant had paid the respondent $11,000.00, leaving a balance of $10,000.00 payable. However, the respondent only claimed $8,750.00 because he allowed a deduction of $1250.00 from his original quotation because he did not paint 3 doors and a staircase within the premises. 4. The application was listed for conciliation and hearing in a group list on 23 February 2018. The respondent did not appear at this hearing, instead sending an email at 9:47 AM on that day, requesting an adjournment. The adjournment was refused by the Tribunal because it was not supported by any evidence to establish why the appellant could not attend. The Tribunal made the following finding at [2] of its reasons: Having regard to the history of the matter and the quantum in dispute, I have formed the view that in the interests of justice the application should be heard and determined today. 1. Consequently, the hearing proceeded in the absence of the appellant. Notice of Appeal and submissions 1. The appellant filed an appeal against the decision on 20 March 2018. The appeal was filed in time, namely within 28 days after the date of the decision. 2. The grounds of appeal were as follows: 1. the decision was made in the absence of the appellant who was sick on the hearing date and requested another date so he could bring his evidence; 2. the work done by the respondent was defective and incomplete; 3. the respondent left the site without finishing his work and went overseas in the middle of the contract. 1. The appellant said that he was waiting on evidence from a "Dulux engineer or independent person to inspect about defective job". The appellant said that he had arranged for "Tom Painter of TS Quality PL" to complete and rectify the work at a cost of $8000. 2. The appellant provided various text messages from the respondent concerning the respondent being overseas. The appellant also provided a medical certificate from a Dr Farhana Jahan to support his contention that he was unable to attend the hearing on 23 February 2018. That certificate was dated 10 March 2018 and said: Mr Harmindar Singh has mentioned he was unwell and missed his court attendance on 23/02/2018. 1. In his submissions, the appellant provided another "Notice of Appeal" which expanded on the grounds to which we have referred above, giving details of painting work is said to be incomplete or defective. The appellant also provided written submissions where he provided more information about the defects. He also explained that he had taken painkillers and eardrops but that he could not move or go to the doctor on 23 February 2018. 2. Lastly, he attached various documentary material and photographs, including quotations from TS Quality Pty Ltd regarding painting works which were carried out at his premises in about January 2018. 3. The appellant also made oral submissions at the hearing of the appeal. In short, he said it was not fair that he has not had a chance to present his case. He also said that the respondent went on holidays in the middle of the project and that he got another painter to carry out some of the work. 4. During the course of oral submissions, the Appeal Panel noted that there appeared to be an issue concerning whether or not the contract which the respondent had with the appellant complied with the requirements of s 10 of the HB Act. This was because the quotation did not appear to have the builder's licence number or the statutory warranties as part of the written agreement, the works in question being more than $20,000 and therefore the provisions of s 7 of the HB Act apply to this contract. As such, it may be unenforceable by the respondent because of s 10 of the HB Act. 5. The respondent filed a reply to appeal and provided written and oral submissions. 6. The effect of the respondent's submissions was that the appellant did not provide any satisfactory evidence concerning why he did not attend the hearing. 7. In relation to the contract, the respondent said that he was a licensed painter however his licence number was not recorded on the quotation, only his Australian Business Number. He also accepted that the statutory warranties were not part of the quotation. However, he said that he would provide required warranties when the work is completed. 8. Otherwise, the respondent explained the work which he had carried out, and said that he was prevented from completing the work on time. This was because other building works which the appellant was undertaking were incomplete and not ready to be painted. He accepted that he had gone overseas and said that when he had returned the appellant had appointed another painter to complete the work. The respondent disagreed about what work had not been done and said the allowance he had made of $1250.00 out of the contract price of $21,000.00 was a reasonable deduction for this work. 9. The Appeal Panel raised with the parties whether, in the circumstances of the case, there had been a variation of the contract by the respondent to reduce the scope of work and/or whether the appellant had repudiated the contract by engaging another painter. 10. The parties' submissions on this aspect were quite diverse and it was apparent to the Appeal Panel that there were various factual matters in dispute which we could not resolve on the material available to us. Consideration 1. There is a right of appeal on a question of law. Otherwise leave to appeal is required. In this regard Sch 4 cl 12(1) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act) and the decision of the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 is relevant to the question of whether leave to appeal should be granted. 2. The primary submission of the appellant is that he was denied procedural fairness because his adjournment application was refused. In this regard we note that both parties agreed that 23 February 2018 was the first time the respondent's application had been listed before the Tribunal. No directions had previously been made for the filing and service of evidence. 3. Despite this submission, it is clear that the appellant provided no evidence to the Tribunal concerning his incapacity to attend the hearing. In this regard the decision of the Court of Appeal of the Supreme Court of New South Wales in AHB v NSW Trustee and Guardian [2014] NSWCA 40 is relevant. At [4] MacFarlan JA (with whom Gleeson JA and Leeming JA agreed) said: The Court will not ordinarily act on a formulaic document and will require an explanation on oath from the medical practitioner of the illness and the reason for the applicant's inability to attend Court. 1. In the present case, there was no evidence from any qualified person to support the contention that the appellant was unable to attend the hearing, or had a legitimate excuse for not attending. Further, the medical certificate subsequently provided to the Appeal Panel in this appeal provides no relevant evidence of the fact of illness or incapacity to attend the hearing. On the contrary, by its terms it simply records the medical practitioner reporting what the practitioner had been told by the appellant, namely he said he had been unwell and unable to attend Court. 2. In these circumstances, there is no basis to conclude the Tribunal was wrong in its determination to refuse the adjournment and proceed with the hearing. Accordingly, this ground of appeal fails. 3. As we have stated above, the contract was in part constituted by the quotation dated 21 August 2017. That was before the Tribunal at first instance, and a copy was produced to the Appeal Panel. The Tribunal found at [4] that the appellant had accepted the quotation. The Tribunal also found at [10] that the respondent had "performed all works in accordance with the quotation, except for 3 doors and the staircase". 4. However, in order to make these findings, the Tribunal was first required to identify the contract and its terms. Section 7(2) of the HB Act sets out the mandatory requirements for a written contract, being contracts over the "prescribed amount", in this case $20,000.00. 5. From what we have been told by the respondent during the appeal, and having regard to the quotation itself, it appears that the contract does not comply with the provisions in s 7 of the HB Act and accordingly is not enforceable by the respondent. This view is supported by the fact that the respondent told the Appeal Panel that there are no written conditions printed on the back of his quotation. If this is correct, the Tribunal was in error in making an award in favour of the respondent under the contract. On the other hand, it may be that other documents were provided by the respondent to the appellant which recorded his licence number and/or provided written notice of the statutory warranties applicable to the work. If this is so, those documents may have formed part of the contract and been sufficient to satisfy the requirements of s 7. Further, even if the Tribunal had reached the conclusion that the contract was unenforceable, a claim in quantum meruit was available to the respondent who might otherwise have satisfied the Tribunal he was entitled to a money order in his favour in the amount claimed or some other amount. 6. Unfortunately, the reasons for decision do not address these matters and, in our view, are therefore inadequate. This constitutes an error of law. See Collins at [50] and following. 7. Having regard to the matters we have identified, to the fact that we do not have the sound recording from the original hearing, and to the real prospect that, if these matters had been identified at first instance, further evidence may have been adduced by the respondent to prove his claim in contract or in quantum meruit, it is not possible for us to make final orders to dispose of this appeal. Rather, the appropriate order is to set aside the decision and remit the proceedings for rehearing. No doubt the Tribunal will make directions to enable the parties to file and serve relevant evidence. As necessary, the parties should obtain appropriate legal advice. Orders 1. The Appeal Panel makes the following orders: 1. The appeal is allowed and the decision made on 23 February 2018 is set aside. 2. The proceedings are remitted for rehearing by the Tribunal, the parties being permitted to adduce further evidence. ********** 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: 17 May 2018