Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Clarke v Bowen [2019] NSWCATAP 163 Hearing dates: 19 June 2019 Date of orders: 03 July 2019 Decision date: 03 July 2019 Jurisdiction: Appeal Panel Before: Armstrong J, President T Simon, Senior Member Decision: (1) Stephen Charles Clarke is joined as an appellant (2) Leave to appeal is refused (3) The appeal is dismissed (4) The stay orders 1-3 made by the Appeal Panel on 24 April 2019 are lifted. (5) The Registry is directed to pay all monies that have been paid by the appellant and held in trust by the Tribunal, to the respondents Jason Bowen and Tiffany Bowen, immediately. Those amounts are to be credited against the money order for the amount of $7,700, made by the Tribunal on 28 March 2019 in matter GEN 19/00602. Catchwords: CONSUMER CLAIM – against the weight of evidence – fair and equitable – excessive damages Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Fair Trading Act 1987 (NSW) Home Building Act 1989 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Hyder Consulting (Aust) Pty Ltd v Wilh Wilmemsen Agency Pty Ltd and Anor [2001] NSWCA 313 Texts Cited: None cited Category: Principal judgment Parties: Dwain Andrew Clarke and Stephen Charles Clarke (Appellants) Jason Bowen and Tiffany Bowen (Respondents) Representation: D Clarke and S Clarke (Appellants in person) J Bowen and T Bowen (Appellants in person) File Number(s): AP 19/17374 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 28 March 2019 Before: S Hausfeld, General Member File Number(s): GEN 19/00602 REASONS FOR DECISION Background 1. The appellants, who are roof contractors, have appealed a decision of the Tribunal made on 28 March 2019. 2. It is uncontested between the parties that by a quotation dated 7 January 2016, they contracted for the appellants to restore the respondent homeowners' roof at a cost of $4,026. The work included the replacement of some damaged sarking, repair of broken tiles, repointing of gables, pressure cleaning, application of an undercoat and application of two coats of Dulux 962 roof membrane (paint). 3. On 6 January 2019 the homeowners made an application to the Tribunal claiming that the work was defective. The application was initially made under the Home Building Act 1989 and was subsequently transferred to the consumer claims list, to be dealt with under the Fair Trading Act 1987. Presumably, this was because the reasonable value of the works provided was under $5,000 and the Tribunal had no jurisdiction under the Home Building Act 1989 (see Sch 1, cl 2(3)(a), for exclusions to the definition of residential building work). The matter was heard on 28 March 2019 and the Tribunal found that the work was not of a reasonable standard and was not done with due skill and care. Orders were made adding Mr Stephen Clarke as a respondent and for the appellants to pay an amount of $7,700 to the homeowners as compensation for the defective work. Written reasons for the decision were provided by the Tribunal. 4. The roof contractors lodged an appeal, together with an application for a stay of the Tribunal's orders, on 11 April 2019. The appellants seek leave to appeal on the following grounds: 1. The decision was not fair and equitable because the Member relied on a quotation provided by unqualified people and the photographs relied on by the Member showed only a small part of the roof. They claim that the overall works were not defective. 2. The decision was against the weight of evidence because Mr Stephen Clarke gave evidence and he has 53 years' experience in the industry and the damages awarded were excessive. 1. Having considered the appellants' grounds of appeal, we are not satisfied, for the reasons that follow, that the appellants have suffered a substantial miscarriage of justice because the decision was not fair and equitable or the decision was against the weight of evidence. 2. Mr Stephen Charles Clarke was not initially named as an appellant in the 'Notice to Appeal'. On 24 April 2019 he was added as a respondent. At the hearing before us, Mr Stephen Clarke advised that he sought to be added as an appellant in the Appeal and an order has been made accordingly. Documents provided to the Appeal Panel 1. The Appeal Panel received the following submissions and documents from the parties: 1. Notice of Appeal and application for stay of the original decision together with submissions and documents received from the appellant on 11 April 2019. 2. Reply to Appeal together with submissions and documents received from the respondents on 22 April 2019. 3. Further submissions and documents received from the appellants on 21 May 2019. Included in those documents was a reference from Bushland Health Group Limited which had not been provided to the Tribunal at the initial hearing. The appellants advised the Appeal Panel at the hearing that they no longer intended to rely on the reference and the reference has not been considered by the Appeal Panel. 4. Respondents' submissions and documents, together with the sound recording received by the Tribunal on 30 May 2019. 5. The Appeal Panel also had before it a copy of the directions that have been made by the Appeal Panel and a copy of the original application that was made by the homeowners. Appeal Grounds 1. Parties have a right of appeal on a question of law, otherwise leave to appeal is required: see s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. The grounds raised by the appellants in this appeal require leave to appeal. In appeals from a decision of the Consumer and Commercial Division, an Appeal Panel may grant leave only if the Appeal Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice because: 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) (see NCAT Act, Sch 4, cl 12(1)). 1. The appellants alleged that the decision was not fair and equitable and against the weight of evidence. The photographs 1. The appellants allege that the photographs of the damage that were shown to the Member were extremely close up and only showed a small section of the roof. They claim those sections show some bubbling from previously applied products and not the overall roof. They also state that the photographs were taken some 11 months to 2 years after the completion of the work. They claim what looks like a nail is actually silicone. 2. The appellants provided photographs of the overall roof with their documents to the Appeal Panel. They confirmed that those photographs were not provided to the Member at the hearing and were taken after the Tribunal decision was made. The appellants allege that those photographs show the overall condition of the roof. No adequate reason was provided as to why those photographs were not provided to the Tribunal at the initial hearing and for that reason, we do not propose to consider them now. 3. In any case, it is clear from the Member's reasons for decision and the transcript of the proceedings that the issues in relation to the photographs that are now being raised by the appellants were raised and considered by the Tribunal. The reasons for decision demonstrate that the Member considered the appellants' view that only a very small part of the tiles had a problem. At [19a] of the reasons the Tribunal stated: The respondents say that only 5%-10% of the roof is so affected. The first named respondent said only up to 10% of the tiles had any problem on them. Mr Philipson also says that upon peeling some membrane back, there was dirt and powder under the membrane suggesting the roof was not properly prepared prior to coating. While I do not have to decide on a percentage, I am persuaded by the applicant's evidence of problems with the roofing coating. 1. Other than the photographs, the Member had before him brief inspection reports from two different roof restorers and a Dulux data and specification sheet. It was open to the Member to prefer the evidence of the homeowners over that of the appellants and the Member explained why he did so. Having considered the evidence of the parties the Member stated at [19d] of the written reasons: I am satisfied that there is extensive bubbling, cracking and peeling of paint on this roof. I am satisfied that this means that the job is not of a reasonable standard. I am satisfied that the respondents undertook the restorations. 1. The appellants also allege that the photos demonstrate that the peeling is occurring because of previous paint work that was undertaken and that one of the restorers who provided the quote peeled back some of the paint. They submit that the roof had previously been painted and that was why they could not provide a warranty. 2. At [19c] of the written reasons, the Member dealt with this part of the appellants' evidence. The Member stated: The respondent indicated that when a roof has been previously painted then cracking, bubbling and peeling can be expected. I note that there is nothing in their quote to suggest this was told to the applicants and neither party suggested the applicants had been expressly told this. 1. The transcript also demonstrates that the Member considered the warranty issue and decided that the homeowners could not rely on an express 10 year warranty because it was not given to them by the appellants in writing. The Tribunal's decision was not decided on that basis. The quotations 1. The appellants also submit that the contractors who inspected the roof were not qualified to do so and were not licensed and that the Member has based his decision on unqualified opinions. Mr Dwain Clarke who undertook the work is unlicensed. His father and partner in the business, Mr Stephen Clarke is licensed. Mr Stephen Clarke's licence class includes the categories of painting and decorating, roof and wall cladding and roof tiling. The appellants now provide licence searches and allege that the authors of the quotations relied on by the Member, were not qualified to give an opinion or quotation on the rectification. Both authors of the quotations are licensed roof tilers. 2. Mr Stephen Clark told the Appeal Panel that he asked the Member at the hearing what qualifications those giving the opinions had. The appellants could not identify that they had directly raised with the Member the licensing issues they now raise on appeal. The homeowners have provided documents from Fair Trading to the Appeal Panel which demonstrate that the category of licensing for roof tiling work includes "putting protective coatings on roofs". The homeowners confirmed that this material was not before the Member, because the licensing issues now being raised by the appellants were not raised before the Member. 3. The transcript and reasons for decision reveal that the Member did not only rely on the opinions in the quotations, he also examined the photographs, the data sheet from Dulux and considered the oral evidence of the parties. Taken together, we are satisfied that it was open to the Member, based on the evidence that was before him, to come to the conclusion that the work was defective. 4. The appellants also submit that that the evidence of Mr Stephen Clarke should have been accepted over the opinions given in the quotations because of Mr Clarke's experience and licensing. As previously stated, the licensing issues were not specifically put to the Member. It was open to the Member to accept the independent opinions of the other roof tilers over that of the appellants. Excessive Award of Damages 1. The appellants submit that the award of damages was excessive. The contract works were for an amount of $4,026 and the award of damages was for $7,700. They claim that the per square metre rate being charged in the quotations is excessive. No independent quotations were provided by the appellants to the Member. At [22] and [23] of the written reasons the Member found that: 22. The applicants are entitled to compensation for this breach and the level of compensation should be the cost of a restoration done with due skill (that is they should be placed back in the position they would have had the respondents breaches not occurred). 23. The quantum is established by the quotes obtained by the applicants for a new restoration job on their roof….The cheapest of those quotes is by Better than new Roofing for $7,700…. 1. In assessing damages for breach of an agreement, the guiding principle is that the non-breaching party (in this case the homeowners) should be put in the same position they would have been in had the breach not occurred. In Hyder Consulting (Aust) Pty Ltd v Wilh Wilmemsen Agency Pty Ltd and Anor [2001] NSWCA 313 Sheller JA stated at para 54: In my opinion, if a defendant negligently damages or destroys the plaintiff's property, and there is no evidence that the plaintiff had any reasonable choice other than to replace or repair what had been damaged or destroyed, the cost of replacement or repair, provided it is not extravagant, is recoverable as damages. In each case it is a question of fact. 1. Giles JA stated in the same case at [107]: The reasons of Moffitt P make clear that each case depends upon its own facts... The general principle of restitutio in integrum, so that a plaintiff should be compensated for its loss but not overcompensated, is undoubted. Its application will vary according to the circumstances. … 1. The Member was satisfied that the rectification of the works carried out by the appellants was as required by the quotation provided by Better than New Roofing. The appellants allege that the two quotations provided from the respondent were from unlicensed parties, however licences for roof tilers have been provided. More importantly, the appellants did not provide an alternative quotation or independent expert evidence. The only independent evidence as to the cost of the rectification of the defective works provided to the Tribunal was from the homeowners. The appellants allege that the amount is exorbitant because the quotations are equivalent to charging almost $30 a square metre. They also now provide other quotations from one of the same roof contractors which they say indicate that they ordinarily charge less per square metre. The quotations relied on by the Tribunal in coming to its decision had no reference to square metres or the amount charged; they were for a global amount. The Tribunal was provided with two quotations and chose the lesser of the two amounts quoted. We are satisfied that, on the evidence before it, it was open to the Member to accept the lower quotation and that the homeowners were not overcompensated. Conclusion 1. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant authorities concerning the principles to be applied by an Appeal Panel in determining whether to grant leave to appeal and concluded at [84](2) that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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. Even if the appellants had established that they may have suffered a substantial miscarriage of justice, we would not grant leave to appeal, as we are not satisfied that the case falls into one or more of the categories in which it is appropriate to grant leave to appeal, as set out in Collins v Urban. Accordingly, we have refused leave to appeal and dismissed the appeal. Stay 1. On 24 April 2019 the Appeal Panel made orders staying the money order of the Tribunal made on 28 March 2019. An order was also made for a sum of $100.00 per week to be paid to the Tribunal to a maximum of $7,700 to be held on trust until further orders of the Tribunal. Given the outcome of the appeal, the Appeal Panel lifts the stay on the orders and makes orders for the monies held in trust by the Tribunal to be paid to the homeowners and be set off against the money order made in their favour. We do not propose to make any further order relating to the payment of the amount by the respondent. 1. Orders 1. Accordingly, we make the following orders: 1. Stephen Charles Clarke is joined as an appellant 2. Leave to appeal refused 3. The appeal is dismissed 4. The stay orders 1-3 made by the Appeal Panel on 24 April 2019 are lifted. 5. The Registry is directed to pay all monies that have been paid by the appellants and held in trust by the Tribunal, to the respondents Jason Bowen and Tiffany Bowen, immediately. Those amounts are to be credited against the money order for the amount of $7,700, made by the Tribunal on 28 March 2019 in matter GEN 19/00602. ********** 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: 03 July 2019