Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Harrison v Riley [2019] NSWCATAP 31 Hearing dates: 16 November 2018 Date of orders: 25 January 2019 Decision date: 25 January 2019 Jurisdiction: Appeal Panel Before: L Pearson, Principal Member S Montgomery, Senior Member Decision: (1) Leave to appeal is refused. (2) The Appeal is dismissed. (3) The orders made on 18 July 2018 as amended on 30 August 2018 are varied to delete the words "on or before 18 August 2018" and substitute the words "within 28 days of the date of these orders". Catchwords: APPEAL – Parties to contract – Whether error in conclusion that work not undertaken with due care and skill - Evidence Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Corporations Act 2001 (Cth) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Roy Harrison (First Appellant) Roy Harrison Floor Maintenance Contractors Pty Ltd (in Liquidation) (Second Appellant) Maureen Riley (Respondent) Representation: R Harrison (Self Represented)(First Appellant) M Riley (Self Represented)(Respondent) No appearance on behalf of Roy Harrison Floor Maintenance Contractors Pty Ltd (in liq) File Number(s): AP 18/38149 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 18 July 2018 Before: D Moss, General Member File Number(s): GEN 18/15191 REASONS FOR DECISION 1. This is an internal appeal against a decision in the Consumer and Commercial Division of the Tribunal on 18 July 2018 in proceedings brought by Maureen Riley in relation to work done in July 2017 to install vinyl plank flooring at her home. Ms Riley claimed that as a result of the poorly prepared subfloor and failure to install Masonite, there were humps in the flooring, and the flooring was damaged and would have to be replaced. 2. The Tribunal orders as notified on 18 July 2018 were: 1. Roy Harrison Floor Maintenance Contractors Pty Ltd [address] is to pay Maureen Riley [address] the sum of $7292.67 immediately on or before 18-Aug-2018. Reasons: • $7192.67 Compensation for loss and damage arising because vinyl plank flooring was not laid with due care and skill. 1. The orders made on 18 July 2018 were amended pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) on 30 August 2018 to be: Roy Harrison [address] is to pay Maureen Riley [address] the sum of $7,192.67 immediately on or before 18 August 2018. Reasons: • $7192.67 Compensation for loss and damage arising because vinyl plank flooring was not laid with due care and skill. 1. The original application lodged by Ms Riley on 3 April 2018 named as respondents: "Roy Harrison LT Flooring" And "Roy Harrison Floor Maintenance Contractors Pty Ltd" 1. The documents provided by Ms Riley with her original application included ASIC records that showed: 1. Roy Harrison as the holder of business name LT Flooring (ABN 70 190 153) from 1 August 2017; 2. Floor Maintenance Contractors Pty Ltd (ACN 112 063 644) as the holder of business name Floorscope (ABN 94 112 063 644); 3. Floor Maintenance Contractors Pty Ltd (ACN 112 063 644) registered 3 December 2004, winding up order made 16 August 2017. 1. When the matter was first before a Tribunal Member on 2 May 2018 directions were made for the parties to file and serve their evidence to prepare the matter for hearing. The Member noted that the issues were whether Ms Riley contracted with Roy Harrison, the first respondent, as an individual or with the second respondent, a company then in liquidation; whether the work done was defective; and if so, the quantum of Ms Riley's loss. Availability of appeal 1. The appeal may be brought as of right on a question of law or, with the leave of the Appeal Panel, on other grounds: s 80(2)(b) NCAT Act. As the appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act leave to appeal may only be granted under s 80(2)(b) if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) 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 meaning of "substantial miscarriage of justice" was summarised at [71] and [79] as follows: [71] …[I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). The Appeal Procedural background 1. An internal appeal was lodged in the name of "Roy Harrison Floor Maintenance Contractors" on 27 July 2018, within the period specified by rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014. 2. That appeal (AP 18/32981) was dismissed on 21 August 2018 pursuant to s 55(1)(c) of the NCAT Act because Mr Harrison did not appear at the call over. On 20 September 2018 the appeal was reinstated pursuant to s 55(2) of the NCAT Act. On that date Roy Harrison was joined as an appellant, and the name of the company was amended to Roy Harrison Floor Maintenance Contractors Pty Ltd (in Liquidation). 3. Directions were made for the parties to provide all the evidence below on which they intended to rely, any fresh evidence for which they intended to seek leave to rely, their written submissions, and the sound recording if what happened at the hearing was relied upon and a typed copy of relevant parts. 4. Directions 7, 8 and 9 were: 7. The first appellant Roy Harrison Floor Maintenance Contractors Pty Ltd (in liquidation) (Company) has been wound up and may have been de-registered. The issue of whether the appeal by the Company is competent is to be determined at the hearing of the appeal. 8. The evidence and material provided by the appellant, must include the following: a) A full company search of the Company b) A statement from the liquidator about whether he is aware of and consents to this appeal being brought by the Company. c) Submissions about whether the appeal by the Company is competent. 9. The submission of the respondent must also respond to the issue of competency of the appeal by the Company. Grounds of Appeal 1. Mr Harrison has provided two Notices of Appeal, the first received by the Tribunal on 27 July 2018 and the second on 15 October 2018. In the Notice of Appeal filed 15 October 2018, which was after the appeal was reinstated on 20 September 2018 when directions were made for exchange of submissions and documents, Mr Harrison states that a fair and impartial decision was not given as at the time he could not provide an ABN or an ACN. He had asked for an adjournment but this was refused. He states as his grounds of appeal that the Member: 1. stated that the vinyl was laid without due care and skill however it was set out perfectly square to all walls and was perfectly cut in to all walls and fixtures, and the dispute is the levels of the subfloor; and 2. refused to accept that the job was done by Floor Maintenance Contractors on the grounds that the receipt provided to Ms Riley had no ACN on it and despite the fact that it had his registered business name Floor Maintenance contractors as a letterhead. 1. Mr Harrison seeks leave to appeal, on the basis that: 1. the decision was not fair and equitable, as he is a registered company with all the right credentials; 2. the decision was against the weight of evidence, because he thought a receipt with his registered business name was enough evidence of a transaction between the two parties. 1. The Grounds of Appeal only refers to the issue of the identity of the contracting party, and raises as a third ground on which leave to appeal is sought that significant new evidence is now available, being "ABN 94112063644 ACN 112063644". Mr Harrison had not provided these details as he believed that "NCAT already had these details as they knew Floor Maintenance Contractors was in liquidation". Reply to Appeal 1. In her Reply to the Appeal received 17 August 2018 Ms Riley states that she supports the order as it was a fair decision determined on the material before the Tribunal, and Mr Harrison chose not to provide any material in support of his position. She said that at the beginning of the hearing she was asked to confirm the proper respondent and she had nominated Mr Harrison. She had understood that orders would be made against him. Documents provided on the appeal 1. Annexed to the Notice of Appeal filed 15 October 2018 by Mr Harrison are five pages of submissions; an ASIC Insolvency Notice dated 1 August 2017 showing that Floor Maintenance Contractors Pty Ltd ACN 112 063 644 is the subject of an application for a winding up order; a Certificate of Currency dated 24 February 2017 for insurance held by "Harrison Roy t/as Floor Maintenance Contractors"; an information sheet about installation of loose lay flooring; a Certificate of Currency for employer's liability insurance cover for the period 31 January 2017 to 31 January 2018 naming as employer "Floor Maintenance Contractors Pty Ltd" with the trading name "Floor Maintenance Contractors"; and an undated statement by Romy Tintara who says he worked with his boss on the job for Ms Riley. 2. In a statement received with those documents Mr Harrison states that at the previous hearing he did not provide any written statements as to the history of the claim as he did not fully understand that the Tribunal's decisions were based on written evidence, and he assumed it would be like a court hearing where he would be able to state his case and answer questions. 3. The documents provided on 3 September 2018 in support of the reinstatement application included the Notice of Appeal of 27 July 2018 and a four page handwritten statement. 4. At the hearing of the appeal Mr Harrison provided a copy of an email dated 7 October 2018 from him to the liquidator of the company informing him of the orders made on 20 September 2018, stating he had been "asked that you acknowledge a receipt of that document ASAP". The liquidator replied on 16 October 2018 confirming receipt of the email and attachment. Mr Harrison confirmed to the Appeal Panel that the insurance Certificates of Currency had not been provided to the Tribunal at first instance. 5. With her Reply to Appeal Ms Riley provided two pages of submissions; copies of business cards sent to her by Mr Harrison in June 2018; and a copy of an email to her from Mr Harrison dated 21 July 2018. The business cards are headed "Floor Maintenance Contractors", and state "ABN: 70 190 153 482", Mr Harrison's name and his phone, postal and email contact details. 6. On 29 October 2018 Ms Riley filed her documents, including a further Reply to Appeal, and 61 pages of attachments. Pages 1-4 are her response to Mr Harrison's Grounds of Appeal. Pages 6 and 7 are transcript extracts from a sound recording of the hearing. Included in those documents are a report dated 16 March 2018 by Kevin Bryan and a statement dated 19 May 2018 by Scott Norkett, of Central Coast Floormaster Kincumber. At the appeal hearing Ms Riley confirmed that other than the transcript and documents relating to an Australian Standard, those documents are the documents provided at first instance. The Decision under Appeal 1. The Notice of the orders dated 18 July 2018 included the notations that oral reasons for the decision were given at the hearing, and "Written reasons will be provided if requested". 2. Neither party requested a written statement of reasons, and the sound recording was not provided to the Appeal Panel. The only evidence before the Appeal Panel as to what took place during the hearing and what reasons were given by the Member is in the transcript extracts provided by Ms Riley, the accuracy of which Mr Harrison accepted. The transcript extracts are as follows: 1. The first transcript extract is of that part of the hearing where the Member considered the documents, and found that the contract to perform the work was between Ms Riley and Mr Harrison. The Member stated that the work was performed by Roy Harrison, and he received $2000 cash for the work; 2. The next section of transcript relates to Mr Harrison's evidence as to why the problem was with the floor and whether there is an applicable Australian Standard, and his disagreement with the evidence on which Ms Riley relied; and 3. The final section of transcript includes what appear to be the Member's reasons for finding that the flooring was not laid with due care and skill and that as a result Ms Riley suffered loss and damage, and assessing the compensation payable. The Member refers to the expert report from Mr Bryan; and the conclusion of Mr Norkett from Central Coast Floormaster Kincumber that the planks are unusable. The Member finds that the only method of rectification is the removal of the existing vinyl flooring and that it cannot be re used. The Member finds that Ms Riley is entitled to a refund of $2000 paid for work not performed with due care and skill; and to $3,552.67 for the cost of the vinyl flooring; $410 for removal of the existing vinyl flooring; and $1230 to feather finish the area to kill the Tackifier glue. The Member was not satisfied that $100 for sanding was established. Consideration 1. The material before the Appeal Panel indicates that the only company with which Mr Harrison is associated is Floor Maintenance Contractors Pty Ltd (ACN 112 063 644). It may be that Floor Maintenance Contractors Pty Ltd, rather than "Roy Harrison Floor Maintenance Contractors Pty Ltd", is the correct name for the second appellant. Even if that is so, Floor Maintenance Contractors Pty Ltd is under external administration. In those circumstances, by operation of s 471B of the Corporations Act 2001 (Cth) the proceedings by Ms Riley against that company could not be maintained. Mr Harrison informed the liquidator of the appeal proceedings in his email of 7 October 2018, however he did not provide, as directed, a statement from the liquidator that he consents to the appeal. Mr Harrison did not provide a full company search of the company as directed on 20 September 2018, or submissions about whether the appeal in the company name is competent. 2. In circumstances where the orders at first instance were made against Roy Harrison as an individual and not against Floor Maintenance Contractors Pty Ltd or any other company, and where no consent has been provided for any proceedings in the name of any such company, the appeal by the second appellant should be dismissed. Whether there was an error on a question of law 1. The first appellant Roy Harrison is not legally represented, and the Appeal Panel must determine whether a question of law has in fact been raised in his appeal, subject to any procedural fairness considerations that might arise to any other party: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]. 2. The Grounds of Appeal potentially raise as questions of law: whether the Member erred in concluding that the party to the contract with Ms Riley was Roy Harrison, rather than the company as contended by Mr Harrison; and whether the Member erred in her finding that the work was not carried out with due care and skill. Identity of the contracting parties 1. Mr Harrison contends that as a sub-contractor to Integra and other flooring companies he must be a registered company with insurance and superannuation. The Member was in error when she refused to accept that the job was done by Floor Maintenance Contractors on the grounds that while the receipt provided to Ms Riley had the company name as the header it was invalid as no ACN was shown. Floor Maintenance Contractors is his registered business name and is not used by any other entity in Australia. 2. In determining the identity of contracting parties the test is what a reasonable observer would conclude from the objective evidence of the communications that led to the entry into the contract, together with the background facts known to the parties: Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154. 3. In her three page statement Ms Riley gave evidence that she had been referred to Mr Harrison by the flooring supplier, from whom she ordered the flooring planks; of her discussions with Mr Harrison when he measured for a quote and she decided to engage him; and his carrying out the work on 31 July to 2 August 2017. 4. The documentary evidence before the Member as to the formation of the contract was an email from Mr Harrison of 18 June 2017 with his quote for $2400 + GST or $2000 cash; an email on 8 July 2017 from Ms Riley to Mr Harrison stating she was happy with the quote and could pay him cash; an email to Mr Harrison from Ms Riley on 12 July 2017 confirming that she had ordered the flooring from the supplier; an email from Ms Riley on 15 August 2017 reminding Mr Harrison of her request for a receipt; and a Tax Invoice sent by Mr Harrison on 17 August 2017 for $2000, after the work had been completed. That document is headed "Floor Maintenance Contractors" and includes bank details but no ABN and no reference to any company. In the transcript extract the Member commented that there was nothing in the documents which she had read where Floor Maintenance Contractors Pty Ltd had had any dealings with Ms Riley. Mr Harrison stated that he was a sole trader. 5. At the hearing of the appeal Mr Harrison explained that the job had been passed on to him by Integra flooring from whom Ms Riley had bought the flooring. Integra insisted that everyone who did work had to have a registered company with its own insurance, and he worked as a sole trader before Integra required him to have a company in 2004-2005. Once he realised at the hearing that he needed documents to prove it was a company, he asked for an adjournment, and that was refused. 6. There is no sound recording, and no record of what application may have been made by Mr Harrison at the hearing for an adjournment. Mr Harrison said at the appeal hearing that if an adjournment had been granted he would have obtained confirmation of the business name and company details. However, that would in our view have made no difference to the outcome. It does not appear to have been in dispute that Mr Harrison used a business name "Floor Maintenance Contractors". It is not in dispute that there is a company "Floor Maintenance Contractors Pty Ltd". However, none of the pre-contract emails refer to Floor Maintenance Contractors Pty Ltd either by name or ACN, and all are in the name of Mr Harrison personally. The Tax Invoice/receipt provided after completion of the work did not refer to a company, and was headed in the business name. There was no error in the Member's conclusion based on the evidence available to her of the pre-contract negotiations and the acceptance of the quote by Ms Riley that Mr Harrison personally was the contracting party. Whether the Member's findings based on the evidence 1. Whether there was no evidence to support a finding of fact is a question of law: Prendergast at [13 (7)]. 2. Mr Harrison disputes the Member's finding that the flooring was not laid with due care and skill. He contends that the Member should have found, as he asserted, that the problem was with the subfloor. After extensive efforts by him he was unable to create a level floor due to the severity of the undulations in the subfloor. Mr Harrison stated that the house was carpeted when he visited to measure and quote. He could not level the floor, and the joints had been planed before the carpet was laid. He disputes that the flooring cannot be re-used, stating that it is loose laid and can be removed and relaid however the subfloor needs to be replaced. He disputes the validity of the expert reports, querying whether the building expert visited the property, and disputes the expert's opinion that the subfloor is acceptable. He disputes the opinion that Masonite should have been installed. 3. The transcript extract indicates that the Member relied on the expert report by Mr Bryan and the statement by Mr Norkett provided by Ms Riley. Mr Bryan's report was based on a site inspection, referenced Australian Standard 1884-2012 and the installation instructions for the flooring used, and concluded that the work was not to the standard expected and insufficient preparation had been carried out before laying the vinyl flooring. The report included a summary of Mr Bryan's qualifications and experience as a licensed builder and teacher of 30 years' experience. Mr Norkett's statement, while not in a form compliant with the Tribunal's Procedural Direction 3 – Expert Evidence, states that he has been a floor layer for over 28 years. Mr Norkett's, opinion that the planks were now unusable was based on that experience and an inspection of the flooring. 4. Mr Harrison accepts that he provided no evidence to counter that evidence. The transcript shows that during the hearing he asserted that the builder who inspected the flooring did not know what he was doing. Mr Harrison stated at the appeal hearing that he had not asked to cross examine Mr Bryan. He did not provide evidence as directed on 2 May 2018 because he thought the issue was about the company, and he did not accept Mr Bryan's evidence. In circumstances where he had the opportunity to provide evidence before the hearing, and chose not to do so, Mr Harrison has not established that there was any error in the Member's reliance on the evidence provided by Ms Riley. There was evidence to support the Member's findings, and no error on a question of law. Whether leave to appeal should be granted 1. The requirements of cl 12(1) of Sch 4 to the NCAT Act for leave to appeal to be granted are set out at paragraph [7] above. 2. Mr Harrison has not established that there was any failure in the way the hearing was conducted that could warrant a conclusion that the decision was not fair and equitable. 3. Mr Harrison contends that the decision was against the weight of evidence because he thought a receipt with a registered business name was enough evidence of a transaction between the two parties; the fact that the company was named as respondent on the complaint; and that his name was clearly indicated on his insurance as Roy Harrison trading as Floor Maintenance Contractors. The latter document was not in evidence before the Member, and in any event would not support a claim that a company was involved in the transaction. As to the reference to a company in Ms Riley's original application, there was evidence before the Member in the form of the email communications between Ms Riley and Mr Harrison, in which there is no mention of a company. This supported the Member's conclusion that it was Mr Harrison the individual who was the contracting party. Mr Harrison has not established that the evidence in its totality weighs so strongly against the conclusion found by the Member that she could not reasonably have reached that conclusion . 4. Mr Harrison also seeks leave to appeal on the basis that there is significant new evidence, namely "ABN 94112063644 ACN 112063644". For Mr Harrison to succeed on this ground he would need to establish that this evidence was not reasonably available at the time the proceedings below were being heard. That is an objective test, and requires that the evidence be unavailable because no person could reasonably have obtained it: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. That is not the position here, where it was Mr Harrison's decision not to provide the evidence. 5. Mr Harrison has not established that there was a failure in the way the matter was conducted or decided which deprived him of a chance that was fairly open of achieving a better outcome than occurred, such that there may have been a substantial miscarriage of justice under cl 12(1) of Sch 4 to the NCAT Act. That conclusion means that it is not necessary to consider whether leave to appeal should be granted. Leave to appeal is refused. Conclusion 1. No error on a question of law has been established, and there is no basis on which leave to appeal should be granted. The appeal should be dismissed. The orders of 18 July 2018 required Mr Harrison to pay $7,192.67 by 18 August 2018. There was no stay of that order. At the appeal hearing Mr Harrison stated that he has not paid the money, and that if the appeal was unsuccessful he would need to delay payment. Ms Riley is entitled to receive the money as ordered by the Tribunal, however given the form of orders made at first instance and the amount of money the subject of the order, it is appropriate to provide some further time for payment. 2. The orders of the Appeal Panel are: 1. Leave to appeal is refused. 2. The Appeal is dismissed. 3. The orders made on 18 July 2018 as amended on 30 August 2018 are varied to delete the words "on or before 18 August 2018" and substitute the words "within 28 days of the date of these orders". ********** 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: 25 January 2019