Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Coates Hire Operations Pty Ltd v Faour [2019] NSWCATAP 159 Hearing dates: 5 June 2019 Date of orders: 02 July 2019 Decision date: 02 July 2019 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President A Bell SC, Senior Member Decision: (1) Appeal upheld; (2) The orders made on 22 February 2019 in GEN 18/43088 are set aside; and (3) Application GEN 18/43088 is dismissed Catchwords: Appeal - Question of Law Legislation Cited: Civil and Administrative Tribunal Act 2013 Fair Trading Act 1987 Cases Cited: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Coates Hire Operations Pty Ltd (Appellant) Adib Hassan Faour (Respondent) Representation: Solicitors: V Tannous (Appellant) A Faour (Respondent self-represented) File Number(s): AP 19/14502 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 22 February 2019 Before: J Ringrose, General Member File Number(s): GEN 18/43088 REASONS FOR DECISION Background 1. This is an appeal from orders made in the Consumer and Commercial Division of the Tribunal in proceedings GEN 18/43088 by which the appellant was ordered to pay the respondent $564.30 as a refund of monies which the Tribunal found to have been overpaid by the respondent to the appellant under a guarantee. The respondent guaranteed the obligations of a company that hired equipment from the appellant. Oral reasons were given at the hearing. 2. The decision under appeal (the Decision) arose out of an application filed by the respondent for an order that the respondent be paid $1,938.84. It appears from an attachment to the application that the respondent also sought an order for the removal of notification that the respondent had been in default of payment obligations to the appellant from the appellant's credit file. At the hearing, at first instance, the Member declined to consider making such an order upon the basis that there was no jurisdiction to do so. No appeal has been filed by the respondent in respect of that decision. 3. The basic background facts are not in dispute and they may be summarised as follows: 1. On 30 January 2017 a company trading as Orbit Construction agreed to hire certain equipment from the appellant and the respondent agreed to be the guarantor of the obligations entered into by Orbit. The respondent claimed that Orbit had hired a vibrator shaft which was delivered and returned the next day. However, the appellant charged Orbit for a second vibrator shaft. The appellant says two were ordered but the respondent says only one was ordered; 2. In respect of the second vibrator shaft, the respondent says that it was never delivered and there should be no charge for it. The appellant says it was delivered but not returned. Accordingly, the appellant says it was entitled to make a hire charge for a period and thereafter charge for the replacement cost of the missing vibrator shaft. The appellant relies upon the terms of the agreement entered into between it, Orbit and the respondent; and 3. The amount charged by the appellant was $1,938.44 which the respondent has paid. At first instance, the Tribunal held that the appellant overcharged Orbit and ordered the appellant to repay to the respondent $564.30. The appellant says there was no overcharge and seeks to have the order set aside. Notice of Appeal 1. The Notice of Appeal sets out a summary of the Grounds of Appeal. They are as follows: 1. The appellant says that the respondent commenced the proceedings in an attempt to remove the "default listed against him on credit reporting bodies". NCAT had no jurisdiction to make such an order and therefore the proceedings were an abuse of process; 2. NCAT purported to exercise its consumer claims jurisdiction under Part 6A of the Fair Trading Act 1987 (the FT Act) but the Tribunal did not have jurisdiction because the agreement for the goods and services was not made between the respondent and the appellant and the respondent was not the consumer. This ground was withdrawn at the appeal hearing; 3. The Tribunal had no power to order refund of the money to the respondent as the payment of $1,983.84 was not paid by the respondent, but rather by Orbit. This ground was also withdrawn at the hearing of the appeal; 4. The Tribunal was in error in determining the case on an issue which was not in depute between the parties, namely the issue of whether money should be refunded to the respondent. This ground was also withdrawn at the hearing of the appeal upon the basis that it was clear from the application that the respondent had sought an order for a refund; and 5. The Tribunal was in error in refusing to accept evidence sought to be tendered at the first instance hearing and if such evidence had been accepted, it would have made a difference to the calculation made by the Member of the correct amount of monies due to the appellant. The appellant says that the correct order, had such evidence been allowed and considered, was that there was no monies due to be repaid by the appellant to the respondent. 1. Once the grounds withdrawn described above are taken into account, the remaining grounds relied upon by the appellant were the above ground (1) and that the Tribunal refused to consider evidence that "had not been filed but was readily available" and had that evidence been considered, a different outcome may have been reached (ground 5). The appellant also sought leave to appeal and set out a number of bases for the seeking of leave. The Notice of Appeal submitted that: 1. The Decision was not fair and equitable because the Tribunal did not review all the evidence, including the evidence not filed but available and was based upon the Tribunal's "own view of accounting" to determine the amount owed; 2. The Decision was against the weight of evidence being the evidence that should have been accepted but was rejected. Reply to Appeal 1. The respondent has filed a Reply to Appeal which disputes the contentions of the appellant and submits that the Decision was correct. Submissions 1. The appellant has filed submissions as has the respondent. The appellant has filled submissions in reply. Following the hearing, the appellant filed further submissions by email. Leave had not been given for that to occur and those submissions have not been considered. Consideration 1. Appeals from decisions made in the Consumer and Commercial Division are governed by the Civil and Administrative Tribunal Act 2013 (NCAT Act) and in particular by s 80(2)(b) and cl 12 of Sch 4. This means that appeals lie as of right on any question of law, or with leave on the grounds stipulated in cl 12. 2. For the reasons which follow, we are of the opinion that there has been an error of law, namely a failure to afford procedural fairness: see Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. The rejection of certain evidence (which we will explain later) resulted in procedural unfairness. In view of that finding, there is no need to consider the relevance of the submissions which might support leave being granted pursuant to cl 12 of Sch 4 or Ground 1. 3. The Tribunal gave reasons orally and neither party requested a written statement of reasons. However, we were provided with a transcript of the hearing which included a transcript of the reasons given orally. 4. It is clear from the reasons that the Member found that the disputed vibrator shaft was in fact delivered and not returned. In other words, the respondent's assertion that he only ordered one shaft, took delivery of one shaft and therefore had an obligation to return only one shaft was not accepted. Rather, it is clear when considering not only the reasons but also the exchange between the Member and the parties during the hearing, that the Member found in favour of the appellant that the appellant had delivered two shafts, one of which went missing. Accordingly, the Member found that the appellant was entitled to compensation in respect of the missing shaft. The issue which the Member addressed at some length was the calculation of the correct amount of compensation. In essence, the Member found that the appellant had overcharged Orbit and that therefore the respondent was entitled to a refund of the amount overcharged, namely $564.30. 5. The transcript reveals that the representative of the appellant sought to tender two documents at the hearing and the Tribunal refused to accept that evidence on the basis that they should have been filed earlier in accordance with prior directions made for the exchange of evidence. The particular documents the appellant sought to tender were identified at the appeal hearing and consisted of a statement dated 24 May 2017 issued by the appellant to Orbit and a readjustment invoice providing a credit to Orbit of $725.57 (dated 25 February 2017). The statement discloses that the appellant had charged the respondent the following amounts: $220.30 + $1,729.11 Less credit $725.57 + $715.00 1. The above figures total $1,938.84. 2. At the appeal hearing, the respondent acknowledged to us that had that the two documents described above been tendered, it would not have caused him any disadvantage or prejudice. The statement confirmed that the appellant had given to the respondent a credit of $725.57. For the reasons that follow, that was significant. 3. The transcript reveals that the Member was concerned that the late reception of fresh evidence would be inconsistent with the obligations of the Tribunal to resolve matters justly, quickly and cheaply, as required by s 36 of the NCAT Act. Directions had been made for evidence to be filed prior to the hearing. The Member was understandably concerned that the late reception of evidence would be unfair to the respondent and would necessitate an adjournment. However, in this case, the rejected documents had been sent to the respondent previously and as conceded by the respondent before us, it would not have caused him prejudice had they been allowed into evidence. 4. The reasons in the Decision may be summarised as follows: 1. The Tribunal considered the various invoices but stated that there was no evidence concerning how the credit had been established; 2. There was no "paperwork provided between the parties" to explain the credit or the charge for the lost vibrator shaft; and 3. The Tribunal said it was necessary to substitute the replacement cost of the missing shaft for the hire charges and by doing so, the total amount the appellant could charge was reduced by $574.87. We note there is an unexplained discrepancy of almost $11 between this amount and the amount of the order. The discrepancy is immaterial and may be ignored. 1. As stated above, the evidence which the appellant sought to tender (but which was rejected) was a statement summarising the overall position between the parties and evidence of the credit. The evidence demonstrates that the appellant charged the respondent a hire charge for the missing vibrator for a period, and then later gave a credit for a portion of the hire charge but that credit was offset by a charge of $715.00 for the cost of replacing the shaft. There was no contention made by the respondent that the charge for the missing shaft was inflated (or otherwise unsubstantiated). Rather, the respondent's point was that the second shaft had not been ordered, nor delivered and that he should not be responsible for hire charges for that shaft or its replacement cost. The Tribunal found against him on those issues. The charges which the appellant sought to make were consistent with the terms of the hire agreement which was in evidence. Clause 14.1 entitled the appellant to claim for the cost of lost equipment. That clause stated that the party hiring the equipment would, in the event of loss, be responsible for any costs incurred by the appellant to recover and repair or replace the equipment and also for the hire charges for that portion of the hire period during which the equipment is being recovered and repaired or replaced. 2. During the appeal it was explained to us that the appellant initially made a hire charge for the missing vibrator shaft for the period dated 31 January 2017 to 25 February 2017 and then provided a credit note for twelve days in the sum of $725.57. The purpose of the credit note was to acknowledge that at the expiration of the twelve days the appellant was able to replace the missing shaft and therefore from that moment suffered no further loss in earnings for hire fees. The claim was then limited to approximately twelve days hire and the replacement cost of the missing shaft ($715.00). 3. For the above reasons, we are of the opinion that the error in refusing to accept the late evidence in circumstances where its reception would have caused no prejudice to the respondent, denied the appellant an opportunity to verify the basis of its charges and that had that evidence been considered, the result would have been different. In particular, the credit note demonstrates that the appellant gave a credit of the hire charge from the time a replacement vibrator replaced the lost one. 4. For these reasons, we are of the opinion that the appeal should be upheld, that the order made in the proceedings under appeal should be set aside and the application dismissed. Orders 1. The Appeal Panel makes the following orders: 1. Appeal upheld; 2. The orders made on 22 February 2019 in GEN 18/43088 are set aside; and 3. Application GEN 18/43088 is dismissed. ********** 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. Registrar 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: 02 July 2019