Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Komaromi v Korrin Pty Ltd t/as Harvey Norman Gordon [2018] NSWCATAP 246 Hearing dates: 10 October 2018 Date of orders: 16 October 2018 Decision date: 16 October 2018 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member G Sarginson, Senior Member Decision: The application to extend the time for lodging the Notice of Appeal is refused and the appeal is otherwise dismissed. Catchwords: PRACTICE AND PROCEDURE – appeal lodged out of time – extension of time – original work order performed by respondent Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: Veronika Komaromi (Appellant) Korrin Pty Ltd t/as Harvey Norman Gordon (Respondent) Representation: P Komaroni (Son) (Appellant) K Zhong (Director) (Respondent) File Number(s): AP 18/30462 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 2 March 2018 Before: D Charles, Senior Member File Number(s): GEN 17/33596 reasons for decision Introduction 1. This appeal relates to the supply and installation of a timber impression laminate floor ("laminate floor") provided to the appellant by the respondent, which the Tribunal found to be defective, and a claim for a refund of an amount of $3235.23, which was originally paid to vary the flooring system from carpet to the laminate floor. 2. On 2 March 2018, the Tribunal made an order that the defective laminate floor be removed and replaced with carpet ("the decision"). Otherwise, the Tribunal made no order for a refund. The Tribunal provided written reasons for decision on that day ("the reasons"). 3. By Notice of Appeal dated 26 June 2018, filed on 29 June 2018, the appellant appealed the decision and sought an order for a refund of an amount of $3235.23. The appeal was lodged out of time, the time to appeal being 28 days from the date on which the appellant received notice of the decision: see r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW). 4. Consequently, in order to appeal the decision, the appellant requires an order under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") to extend the time to appeal. 5. For the reasons that follow, we have determined that the application to extend time should be refused and the appeal should otherwise be dismissed. History of dispute, grounds of appeal and submissions 1. As outlined above, these proceedings relate to a flooring system supplied and installed by the respondent. 2. The appellant had made an insurance claim in relation to damage to carpet in her premises. Her insurance company, NRMA Insurance, accepted the claim and agreed to pay for the installation of replacement carpet. The respondent was engaged to supply the carpet. However, prior to the carpet being installed, the appellant requested that the respondent "upgrade" the floor covering from carpet to laminate. The cost for the change of the supply item, which was borne by the appellant, was $3235.23. The flooring system was installed in 2014. 3. The flooring system was defective and there was a dispute concerning whether or not the respondent was responsible. The appellant filed application GEN 17/33596 in the Tribunal on 31 July 2017. That application sought the payment of an amount of $3235.23, together with an order that the respondent "replace with carpet same as other rooms". In effect, the appellant wished to obtain a refund of the "upgrade" of $3235.23, and to have the laminate floor removed and replaced with carpet as originally proposed by NRMA. 4. At first instance, the Tribunal rejected the respondent's evidence that the defects in the laminate floor were caused by the appellant and accepted the evidence of the appellant's expert, Mr Hibbard, particularly that "the installer paid insufficient attention to subfloor conditions", which was "contrary to the installation instructions for the laminate flooring": reasons at [15]-[16]. The Tribunal noted that the appellant "asks for carpets … from other Harvey Norman franchisees". However, the Tribunal made an order that the respondent remove the laminate floor and replace it with carpet. In doing so the Tribunal found that there had been a contravention of ss 60 and 61 of the Australian Consumer Law (NSW): reasons at [18]. This order was made pursuant to s 79N of the Fair Trading Act 1987 (NSW) ("FT Act"). 5. The Tribunal did not make an order for a refund of the money. The reasons of the Tribunal do not explain why. 6. In her Notice of Appeal, the appellant says the Tribunal misinterpreted the claims made by her and/or failed to address her claim for a refund. Consequently, the appellant says the decision was not fair and equitable. 7. In relation to the late filing of the Notice of Appeal, and the request for an extension of time, the appellant (whose Notice of Appeal was completed by her son Peter Komaromi) says: After being given the ruling back in March, I rang NCAT and asked a staff member if the correct way to address the money not being refund [sic] it would be a Renewal of Proceedings application, I was given the WRONG ADVICE and told to go down this path, I was granted a hearing on 16/05/18, it was dismissed as it was the wrong way to proceed. I then made an application under section 63, this was also rejected as it was also the wrong way to proceed. I then sought Legal advice from Legal Aid as I cannot afford a lawyer, as I am on a disability pension for psychiatric as well as physical impairments, my mother whose behalf I am acting on also has very limited funds as she is on an age pension, it has taken this long to get legal advice. That is why I am now appealing the decision. 1. At the hearing of the appeal, the appellant was represented by her son, Mr Komaromi. The Appeal Panel drew to his the attention the decision of Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and the principles applicable to whether or not time should be extended. 2. He made submissions consistent with the Notice of Appeal. In addition, he submitted that a refund was warranted because the laminate floor was never suitable to be installed due to subfloor ventilation. In this regard, he submitted that paragraphs 11.1.03, 11.1.04, 11.1.05 and 11.1.06 of Mr Hibbard's report supported such a conclusion and, in effect, this was the determination of the Tribunal. 3. These submissions were made in circumstances where all evidence from the original hearing had not been provided, nor had we been provided with information as to the exact orders sought at the hearing, and any discussions with the Tribunal concerning the form of orders. In this regard, the sound recording, and a typed copy of the relevant parts of the sound recording, had not been provided despite directions 2(d) and 3(c) of the Appeal Panel made 17 July 2018. No adjournment was sought to provide this evidence. 4. The respondent filed a reply to appeal. 5. In that reply, the respondent said that it had complied with the order of the Tribunal, removed the laminate floor and replaced it with carpet, and had done so to the satisfaction of the appellant. In oral submissions, Mr Zhong, a director who appeared for the appellant, said that time should not be extended and confirmed that the respondent had complied with the Tribunal's orders. 6. In effect, the respondent said that it would be prejudiced if time were extended, final orders having been made and complied with by the respondent. Making further orders as claimed in the appeal would, in these circumstances, be inappropriate. Consideration 1. The initial question is whether time should be extended to permit the appeal to be filed out of time. 2. As stated above, the principles applicable to the extension of time were considered by the appeal panel in Jackson. At [22] the Appeal Panel said: 22 The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]. 1. Applying these principles to the present case, we make the following findings: 1. The appeal was required to be filed on or before 30 March 2018. In fact, it was lodged on 29 June 2018, nearly 3 months late. This delay is substantial. 2. The appellant's explanation for the delay is that she attempted to renew the proceedings, then sought to vary orders and, after several months, obtained legal advice to the effect that if she wished to challenge the decision she should do so by way of appeal. While she asserts that she is impecunious, she nonetheless succeeded in obtaining legal advice after her other attempts to challenge the decision failed. 3. She also asserts, through her son, that she filed the application for renewal on "advice" given by Registry staff at the Tribunal. However, on 16 May 2018, the application for renewal was dismissed and the Notice of Appeal was not filed until 6 weeks after that time. While she says she then made an application for the original order to be varied under s 63 of the NCAT Act, she does not assert that this action was taken on the basis of any advice provided by staff at the Tribunal. In any event, she does not say she was unaware of the appeal time limits and it is clear from the fact she ultimately obtained legal advice that if she had done so earlier she would have been informed about any right to challenge the decision by way of appeal. 4. The work order to remove the laminate floor and replace it with carpet has now been carried out by the respondent. 5. As we noted above, the Tribunal has not explained why it made an order for replacement of carpet rather than a rectification order to repair and/or replace the laminate floor, other than for the reason that this is the order which the appellant sought in her original application. Bearing in mind the fact that the contract was to supply and install the laminate floor, if this work was defective one would expect that there would be either a refund or a rectification order made consistent with s 79U(a) and (b) of the FT Act. On one view of the FT Act, the Tribunal could not make an order to perform work different to that which was contracted. On another view, the Tribunal was required to consider what order would be "fair and equitable to all the parties to the claim", and was entitled to fashion an order to do work on terms that was consistent with the appellant's original application for an order to replace the laminate floor with carpet: see s 79U(1). Regardless of which view is correct, the respondent would be prejudiced by allowing the appeal to now proceed because it would be faced with the possibility of a money order being made against it having lost the opportunity to argue that the appropriate form of order would have been a rectification order for the laminate floor. 1. Having regard to these facts, we are not satisfied that the delay has been adequately explained. Further, and in any event, to extend time would work an injustice to the respondent which cannot be remedied by an order for costs. 2. In these circumstances, the application to extend time should be refused and the appeal otherwise dismissed. Orders 1. The Appeal Panel makes the following orders: 1. The application to extend the time for lodging the Notice of Appeal is refused and 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: 16 October 2018