Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sheiman v Carpet Solutions [2018] NSWCATAP 214 Hearing dates: 3 September 2018 Date of orders: 14 September 2018 Decision date: 14 September 2018 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member R Perrignon, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is otherwise dismissed. Catchwords: APPEALS – application to renew proceedings for rectification orders under Fair Trading Act (NSW) 1987 – leave to appeal – whether substantial miscarriage of justice – whether fresh evidence may be given on appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 Australian Consumer Law (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None Category: Principal judgment Parties: Vladimir Sheiman - Appellant Veznard Pty Ltd t/as Carpet Solutions – Respondent Representation: Appellant: In person Respondent: Mr D Schnitzer File Number(s): AP 18/29805 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal of NSW Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 31 May 2018 Before: J Levingston, General Member File Number(s): GEN 18/16004 Reasons for decision Introduction 1. The appellant, Dr Sheiman, appeals from a decision of the Tribunal made on 31 May 2018, dismissing his application to renew proceedings GEN 17/34533 in the Consumer and Commercial Division of the Tribunal. The background may be stated briefly as follows. Background 1. On 12 and 13 September 2016, the respondent company, which traded as Carpet Solutions, installed bamboo flooring in Dr Sheiman's home. In 2017, Dr Sheiman commenced proceedings in the Tribunal, seeking orders for rectification of the flooring. 2. On 29 November 2017, the Tribunal found that the flooring was neither laid with due care and skill, nor of acceptable quality, in breach of the statutory guarantees provided by sections 60 and 54 respectively of the Australian Consumer Law (ACL NSW). On the basis of expert evidence tendered by Dr Sheiman, it found that some floor boards were poorly matched, that glue used to fix the scotia remained visible, and that there were gaps between the floor boards. It was not satisfied of the presence of other alleged defects set forth in [36] of the decision. 3. The Tribunal ordered Carpet Solutions to carry out the following rectification works on or before 22 December 2017 and gave leave to Dr Sheiman to renew the proceedings within six months if the work had not been carried out by the due date or was defective: 1. Replace the poorly matched boards and match the replacements with the existing flooring as to finish and colour to achieve uniformity. 2. Remove the overflow of glue visible used to fix the scotia visible on the scotia and walls. If it cannot be removed the scotia is to be removed, the surface of the walls cleaned and made good with paint, if necessary, to match existing walls and painted to architectural lines to provide complete coverage and uniformity of finish and the scotia replaced without causing damage to the scotia or the walls from over spreading of glue. 3. The slats of flooring that have gaps must be clamped to eliminate gaps and secured. 1. No appeal was brought from the decision of 29 November 2017. Renewal proceedings 1. On 4 April 2018, Dr Sheiman made an application to the Tribunal to renew the proceedings in accordance with the leave granted on 29 November 2017. He alleged that, "Execution of the Tribunal decisions [sic] is sabotaged by Mr Danny Schnitzer, the Executive of the Carpet Solutions". He made a number of complaints about the quality of the rectification work, in particular the fastening of the scotia around the walls and paint spots on the wall. 2. On 31 May 2018, the Tribunal dismissed the renewal application, on the basis that Dr Sheiman had not proved a failure by Carpet Solutions to comply with the orders of 29 November 2017. In doing so, the Tribunal accepted a report of Mr Ji of Topdeck International Pty Limited trading as Topdeck Flooring, tendered by the Carpet Solutions. Mr Ji had concluded, "the entire installation of the bamboo floated floor, [and] scotia trims ... is an excellent installation". In accepting the opinion of Mr Ji, the Tribunal referred to the fact that he was a third party, and preferred his evidence to that of Dr Sheiman. 3. In these proceedings, Dr Sheiman appeals from the Tribunal's decision of 31 May 2018 on the renewal application. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act). 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. In cases involving a self-represented litigant who cannot clearly articulate grounds of appeal and distinguish between questions of law and errors of fact in relation to which leave to appeal is required, it is appropriate for the Appeal Panel to consider the material provided on the appeal to identify the grounds of appeal (Prendergast at [12]). Submissions and evidence 1. In deciding the appeal, we have had regard to the following: 1. The Notice of Appeal lodged on 28 June 2018; 2. The Reply to Appeal lodged on 17 July 2018; 3. Bundle of documents lodged by Dr Sheiman on 16 August 2018; 4. Copy of Tribunal's decision and orders made on 29 November 2017 in proceedings GEN 17/34533: Sheiman v Venard Pty Limited trading as Carpet Solutions [2017] NSWCAT; 5. Copy of the renewal application lodged on 4 April 2018. 6. Copy of decision under appeal, namely the decision made on 31 May 2018 in the renewal proceedings GEN 18/16004; and 7. The oral submissions made by Dr Sheiman and Mr Schnitzer at the appeal hearing Notice of Appeal 1. The Notice of Appeal was lodged within the 28 day time period specified in clause 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules). Grounds of Appeal 1. The grounds of appeal specified in the Notice of Appeal are that the decision was not fair and equitable, was against the weight of evidence and that new evidence is now available that was not reasonably available at the time of the hearing. Appeal hearing 1. On 3 September 2018, the appeal was heard by the Appeal Panel. Dr Sheiman appeared for himself with the assistance of a Russian interpreter. Mr Schnitzer appeared for the respondent company. We explained to Dr Sheiman the effect of s 80(2)(b) and of clause 12(1) of Schedule 4 and what must be shown in order to obtain leave to bring fresh evidence on appeal. Consideration Application to bring fresh evidence 1. Dr Sheiman sought leave to adduce fresh evidence, including a video and photographs. He presented no evidence to demonstrate why that evidence was not reasonably available on or before the hearing on 31 May 2018. We are not satisfied that the evidence was not reasonably available, as required by clause 12(1)(c) of Schedule 4. The application to admit fresh evidence is declined. Renewal proceedings: reasoning of the Tribunal at first instance 1. Clause 8 of Schedule 4 to the NCAT Act relevantly provides: (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. (4) When proceedings have been renewed in accordance with this clause, the Tribunal: (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order. 1. The effect of clause 8(2) of Schedule 4 was to permit Dr Sheiman to renew the former proceedings, "If an order has not been complied with within the period specified by the Tribunal". To renew the proceedings, he had to show that the rectification orders of 29 November 2017 had not been complied with by the due date. 2. On 31 May 2018, the Tribunal was not satisfied that he had discharged his onus of proof. It accepted the evidence of Mr Ji, preferring it to that of Dr Sheiman. The fact that it gave weight to Mr Ji's opinion indicates that it accepted that Mr Ji had the expertise to express it. In its reasons, the Tribunal mentioned that Mr Ji was a 'third party'. Read as a whole, the reasons make it clear that Mr Ji's opinion was preferred by reason of his independence and expertise. Though brief, the reasons are patent, and explain why the Tribunal preferred the evidence of Mr Ji. There is no evidence that the Tribunal failed to have regard to the evidence, oral or otherwise, of Dr Sheiman. It was open to the Tribunal to prefer Mr Ji's evidence, as it did. No error of law is alleged by Dr Sheiman, or demonstrated. Leave to appeal 1. In the absence of any dispute as to the meaning of the orders of 29 November 2017, an appeal from the decision of 31 May 2018 is an appeal from a finding of fact – namely, from the Tribunal's finding that it was not satisfied there had been non-compliance with the rectification orders of 29 November 2017. Leave to appeal is required: section 80(2)(b). 2. As indicated, to obtain leave, Dr Sheiman must demonstrate that he may have suffered a substantial miscarriage of justice because the decision of 31 May 2018 was not fair and equitable, because it was against the weight of the evidence, or because significant new evidence has arisen that was not reasonable available at the hearing. 3. For the reasons given above, we are not satisfied that significant new evidence has arisen. 4. In support of the allegations that the decision was not fair and equitable and against the weight of the evidence, Dr Sheiman made oral submissions to the effect that the floor had not been levelled by Carpet Solutions and the scotia had been wrongly affixed to the floorboards. None of the rectification orders of 29 November 2018 required levelling of the floor, or the affixing or re-affixing of the scotia unless the glue could not be removed. In the absence of evidence that glue could not be removed, failure to perform works of this kind, if there was such a failure, does not constitute a failure to comply with the rectification orders of 29 November 2018, and was not capable of supporting an application for renewal. 5. We are also not satisfied that the decision of 31 May 2018 was against the weight of the evidence. The Tribunal weighed the opinion of Mr Ji against contrary evidence of Dr Sheiman, and preferred the evidence of Mr Ji by reason of his expertise and the fact he was a third party. That conclusion was open to the Tribunal on the evidence. We can identify no error. The decision was not, in our view, against the weight of the evidence. For the same reasons, we are not satisfied that the decision was not fair and equitable. 6. Accordingly, we are not satisfied that Dr Sheiman may have suffered a substantial miscarriage of justice on any of the bases set forth in clause 12(1) of the Schedule. Leave to appeal from the decision of 31 May 2018 is therefore refused. 7. For the benefit of the parties, we indicate that, even if leave to appeal had been granted, the appeal would have been dismissed because the defects in the rectification work alleged and relied upon by Dr Sheiman at the hearing of the appeal could not amount to a breach of the rectification orders of 29 November 2017, for the reasons given above. Clamping 1. In its oral submissions, Carpet Solutions admitted that although it had removed gaps between floorboards by positioning them closer together, it had not clamped the floorboards, explaining that clamping was impossible with a click-lock system such as this, locking together with a micro-bevelled edge, and expanding and contracting with the weather. An admission that clamping had not occurred was also contained in a document attached to the Reply. On appeal, Dr Sheiman did not rely on that admission as evidence that the orders of 29 November 2017 had not been complied with. 2. Even if he had, it would have made no difference to the outcome for the following reasons. 1. In its reasons of 31 May 2018, the Tribunal expressly accepted the opinion of Mr Ji to the following effect: Bamboo is locked together with a click-lock System. It has a microbevelled edge. Visibly the join is more noticeable than traditional tongue and groove flooring. Depending on atmospheric conditions it is designed to expand and contract accordingly. In other words a gap visible today could be gone in a few days depending on climatic conditions. …. … I have examined the entire installation of the bamboo floated floor, scotia trims and in my opinion it is an excellent installation. 1. Even if Carpet Solutions had admitted on 31 May 2018 that it did not clamp the floorboards, and the renewal application was granted and treated as a new application in accordance with Clause 8(3) of the Schedule, it is unlikely that the Tribunal would have made any further orders for the clamping of the floorboards, as it accepted Mr Ji's opinion that the installation was, at least by then, 'excellent'. In our view there has been no substantial miscarriage of justice, and the grant of leave to appeal would be of no utility. 2. In any event, Dr Sheiman could have, if he wished, relied on the omission to clamp the boards and brought evidence of it at the hearing of the renewal application on 31 May 2018. He did not do so, either then, or on appeal. Orders 1. For the above reasons: 1. Leave to appeal is refused. 2. The appeal is otherwise 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: 14 September 2018