Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Vital Capital Investment Pty Ltd v Hoffmann [2019] NSWCATAP 254 Hearing dates: 30 September 2019 Date of orders: 10 October 2019 Decision date: 10 October 2019 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member G.Sarginson, Senior Member Decision: The appeal is dismissed. Catchwords: APPEALS- procedure - claim that never received notice of hearing to determine the matter at first instance – procedural fairness – conflicting accounts about receipt of notice Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 Interpretation Act (NSW)1987 Cases Cited: None cited Category: Principal judgment Parties: Vital Capital Investment Pty Ltd (Appellant) Kent Hoffmann (Respondent) Representation: Solicitors: Appellant (Self Represented) Respondent (Self Represented) File Number(s): AP 19/36350 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: 15 July 2019 Before: M Eftimiou, General Member File Number(s): HB 19/20087 REASONS FOR DECISION Overview 1. On 30 September 2019 we dismissed this appeal. These are our reasons for doing so. 2. The appellant appealed from an order made at the hearing in the Tribunal at first instance on 15 July 2019 that it pay the respondent $4,500.00 immediately. No stay of that decision was ordered. The amount remains unpaid. 3. The amount ordered to be paid was made up of a deposit paid by the respondent for the supply of an aluminium, double glazed door and window for use at his investment property, along with an amount attributed to loss of rent due to what was found to be the defective nature of what was supplied. 4. The order was made in the absence of any appearance at that hearing on behalf of the appellant. Written reasons dealing with the merits of the respondent's claim accompanied the making of the order. 5. In those reasons, the Tribunal concluded that a notice of the hearing was sent by the Tribunal to the appellant, the notice had not been returned, and that, accordingly, the Tribunal was satisfied the appellant had been served with the notice. 6. The appellant's sole ground of appeal was that there was procedural unfairness because, according to the appellant, it was not notified of the hearing on 15 July 2019 and was unaware that the hearing had been fixed to take place on that day. 7. For the reasons set out below, we do not accept that any procedural unfairness has occurred. 8. We treated the appeal as proceeding as of right on the basis that it raised a question of law as to the circumstances in which the decision might be set aside for procedural unfairness: s 80 (2) (b) of the Civil and Administrative Tribunal Act 2013 (NSW) ('the NCAT Act'). Relevant legislative provisions 1. To arrive at our decision in this matter it is sufficient that we refer to the following provisions (without the need to refer to the Evidence Act, NSW or the Commonwealth legislation concerning service on a company and determining the time at which service is effected). 2. The Tribunal is required to take such measures as a reasonably practicable to ensure that parties have a reasonable opportunity to be heard and to have their submissions considered in the proceedings: s 38 (5) of the NCAT Act. 3. One of the means of service of a Notice of Hearing by the Tribunal is by post to a party's address for service: Rule 13 (2) (b) of the Civil and Administrative Tribunal Rules 2014 (the Rules). 4. Rule 16 of the Rules deals with the subject of an address for service and provides: 16 Address for service (1) An originating document or reply lodged with the Tribunal must contain an address for service in respect of the person or body lodging the document. (2) A person's or body's address for service is to be the address of a place in New South Wales (other than a DX address): (a) at which documents in the proceedings may be left for the person or body during ordinary business hours, and (b) to which documents in the proceedings may be posted for the person or body. (3) A person or body may include a DX address in New South Wales (along with an address of a place in New South Wales) as part of the person's or body's address for service. (4) A person or body may also consent to the electronic service of notices and documents in proceedings by means of an email address, fax number or mobile phone number specified by the person or body. 1. By virtue of s 76 of the Interpretation Act (NSW)1987, where a document is sent by post it is deemed to have been served on the seventh day working day after the letter was posted unless evidence sufficient to raise doubt is adduced to the contrary. 2. In the Consumer and Commercial Division, the Tribunal may proceed with a hearing to determine a matter in the absence of a party where it is satisfied that a notice of hearing has been duly served on the absent party: Rule 35 (2) (a) of the Rules. 3. Bearing in mind these provisions, in the circumstances of this case referred to below, the appellant needed to adduce evidence to the Appeal Panel that was sufficient to raise a doubt that the Notice of Hearing ever arrived at the PO Box given to the Tribunal at a hearing on 24 May 2019, or that, if it did, there was an explanation why neither Mr Su or Ms Qi of the appellant attended the hearing on 15 July 2019 that was sufficient to warrant a conclusion that the decision should be set aside on the ground of procedural unfairness. This the appellant has failed to do. Relevant facts 1. Mr Su, who appeared for the appellant at the hearing of the appeal, is the sole director and shareholder of the appellant. Ms Qi is the appellant's General Manager. 2. Following the commencement of these proceedings at the end of April 2019, a first hearing in the Tribunal occurred on 24 May 2019. Ms Qi appeared on that occasion for the appellant. 3. The registered office of the appellant was the address of a unit in Sefton. That was the address given on the application by which the proceedings were commenced and on a Notice of Conciliation and Hearing (Group List) sent to the parties by the Tribunal for such a hearing on 13 May 2019. 4. By, at least, 8 May 2019, Mr Su of the appellant had, by some means, become aware of the proceedings because he sent an email to the Tribunal on that date stating that they were not able to receive any communication to the letterbox of the unit in Sefton and that they wished to nominate an email address, as set out in the email, at which to receive all communications. That email was supplied to the Appeal Panel but it does not appear on the file of the proceedings at first instance. 5. The hearing on 13 May 2019 came to be adjourned, at the request of the respondent, to 24 May 2019. Mr Su says that they did not receive notice from the Tribunal of the new hearing date. The Tribunal's file reveals that the notice to the appellant of the new date was only sent to the address of the above unit. 6. Nevertheless, Mr Su and Ms Qi became aware of the new date of 24 May 2019 and Ms Qi attended on that day because Mr Su was in China. As to this, we note that the new date of 24 May 2019 was referred to in an email from the respondent to Mr Su sent on 20 May 2019, although Mr Su told the Appeal Panel at the hearing of the appeal that they only became aware of the new date by checking the public listings for Tribunal cases on the internet. 7. Prior to the hearing on 24 May 2019, the Tribunal Registry was sent on 21 May 2019 an email by the respondent attaching a medical certificate. Included with this email was a string of emails, amongst which there was an email from Mr Su to the respondent sent on 20 May 2019 stating that he was leaving for overseas at the end of the month, he would be coming back in two months time and he hoped the hearing could be rescheduled until that time. There is no suggestion that at the hearing on 24 May 2019 Ms Qi raised an issue about timing of the hearing to determine the matter in view of the absence of Mr Su overseas. 8. Mr Su told us that at the hearing on 24 May 2019 Ms Qi gave the Tribunal the address of a PO Box number as an address for the receipt of notices. It is clear that she did so because the file of the proceedings at first instance contains a handwritten note from the Member hearing the matter on that day stating that notices to the appellant were to be sent to this PO Box number. 9. Mr Su also told us that Ms Qi gave the Tribunal member, at the hearing on 24 May 2019, the email address set out in the email he sent on 8 May 2019, referred to above. Although this was not accepted by the respondent, it is more likely than not that she did so because at the hearing of the appeal Mr Su provided us with an email form the Tribunal to this email address, sent at 4.40pm on 24 May 2019, attaching correspondence. Also, a copy of a notice of the orders made on 24 May 2019 came to be sent by the Tribunal to this email address, as well as to the PO Box address. Prior to 24 May 2019, none of the correspondence from the Tribunal had been sent to this email address. 10. The orders made on 24 May 2019 included a timetable for provision of evidence and submissions by the parties in advance of a hearing in respect of which it was said that a separate written notice of the new hearing date would be sent in the near future. 11. The file of the proceedings at first instance contains a copy of a Notice of Hearing, dated 28 May 2019, for a hearing on 15 July 2019. This notice is addressed to the PO Box address given to the Tribunal at the hearing on 24 May 2019 (there is also on the file another copy of this Notice of Hearing addressed to the appellant at the address of the unit in Sefton).The file contains no suggestion that, in accordance with the practice of the Tribunal, the copy of the Notice of Hearing was not sent by post to the PO Box address. 12. Subsequently, the appellant provided to the Tribunal, in accordance with the Tribunal's directions made on 24 May 2019, a bundle of the material it relied upon for the purposes of the hearing to determine the matter, including a statement from Mr Su. This was received by the Tribunal on 21 June 2019. 13. At the hearing on 15 July 2019, the Tribunal concluded that the Notice of Hearing had been sent to the appellant on 28 May 2019. We have no reason to disagree with that conclusion. 14. At this hearing on 15 July 2019, the Tribunal was also informed by the respondent that Mr Su had advised him by email on 20 May 2019 that he would be travelling overseas and would not be returning for 2 months. Correctly (see further below), the Tribunal noted that no request for an adjournment had been received and that there was no reasonable explanation as to why another representative of the appellant was unable to attend in Mr Su's absence. 15. At the hearing of the appeal, Mr Su provided the Appeal Panel with conflicting versions as to what he and Ms Qi knew about the hearing date of 15 July 2019, as follows: 1. In the Notice of Appeal, signed by Mr Su, it was said that the appellant was not informed by the respondent or the Tribunal of the date of the hearing on 15 July 2019 by post or by email and that, hence, they believed that the hearing was adjourned until Mr Su's return from overseas. The Notice of Appeal also referred to having specified their preference for receiving communications by email. The Notice also stated: 2. In the previous hearing, we have informed the tribunal that our postal address is: Pobox [details given] instead of the physical address provided by Mr Kent. We did not receive the notice of hearing in our mail box for the last hearing, hence we were unaware of its occurrence. 3. Mr Edmond Su… is the best person to answer any questions in regard to Mr Kent's concerns….he is the best person to appear in the hearing for the case. However, it was not clear at the time to Mr Edmon Su that a notice of adjournment was required to adjourn the hearing, as he stated clearly in his response to Mr Hoffmann's statement as well as to the tribunal that he was going on a trip overseas, he wrongly believe it would be enough to adjourn the hearing…. 1. At the hearing of the appeal, Mr Su was shown by the Appeal Panel the Notice of Hearing on 15 July 2019, dated 28 May 2019, addressed to the PO Box address. His initial response was that Ms Qi had messaged him about this hearing date whilst he was overseas and that is why he had asked for an adjournment in the statement he supplied to the Tribunal saying that he was away. He confirmed that Ms Qi regularly checked the PO Box for mail. 2. When asked by us for the dates when he was overseas, Mr Su said he left Australia on 4 June 2019 and returned on 9 August 2019. He then said that he had, in fact, seen the Notice of Hearing on 15 July 2019 before he went overseas. 3. When shown the documents the appellant supplied to the Tribunal on 21 June 2019 by us, Mr Su conceded that they did not include any reference to him being overseas and asking for an adjournment. He accepted that he had been mistaken about making such a request. He said he was mixing things up with another case he was involved in. 4. After a short adjournment at his request, Mr Su then said he had spoken to Ms Qi and he was now saying again that they never received the Notice of Hearing on 15 July 2019. 1. In these circumstances, we came to the view that we had no reliable evidence on behalf of the appellant sufficient to raise a doubt that the Notice of Hearing on 15 July 2019 had not arrived at the PO Box address, let alone any explanation for why neither of them had attended the hearing on 15 July 2019 sufficient to warrant a conclusion that, in the circumstances, the decision was not fair and equitable or should be set aside on the grounds of procedural unfairness. Order Made on 30 September 2019 1. These are the reasons for the order made by us on 30 September 2019 that 1. The appeal is 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: 10 October 2019