Appeal Dismissed: No Question of Law - NSW Civil and Administrative Tribunal

The appeal was dismissed as it did not raise any question of law and was deemed without merit. The Tribunal found that the appeal lacked substance and failed to meet the criteria for granting leave to appeal.

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: [COMPANY] v [NAME] [2016] NSWCATAP 144 Hearing dates: 23 May 2016 Date of orders: 28 June 2016 Decision date: 28 June 2016 Jurisdiction: Appeal Panel Before: D Patten, Principal Member J Wakefield, Senior Member Decision: 1. Order that the appeal on a question of law be dismissed.

2. Refuse leave to appeal on any other ground.

3. Order the appellant to pay the respondents' costs of the appeal on the ordinary basis as agreed or assessed.

4. Note the undertaking of [NAME] to account to the appropriate instrumentality of the Commonwealth Government in respect of $4,000 of the monies held in trust on behalf of the respondent. Catchwords: APPEAL – no question of law – no reason to grant leave − costs Legislation Cited: Fair Trading Act 1987 Home Building Act 1989 Civil and Administrative Tribunal Act 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: [COMPANY] (Appellant) [NAME] (Respondent) Representation: [NAME] (agent) for Appellant [NAME] for Respondent

In person [NAME](s): AP 16/03798 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2016] NSWCAT Date of Decision: 18 March 2016 Before: K Holwell, General Member File Number(s): HB 15/53565

REASONS FOR

DECISION 1. This is an appeal against orders of the Tribunal below made on 19 January 2016: The respondent is to pay the applicant the sum of $16,126.00 on or before 2 February 2016. The application is amended to claim $16,126.00. Upon payment of the money order the respondent is to remove the solar system from the applicant's house at its cost. After the removal of the solar system the respondent, at its cost, is to make good the parts of the house walls and roof which have to be repaired following the removal.

1. The orders were made pursuant to jurisdiction conferred on the Tribunal by the Fair Trading Act 1987 and Home Building Act 1989. The dispute concerned a contract between the Appellant and the Respondent for the supply and installation of a five kilowatt solar system comprising 20 panels at premises of the Respondent in Northern New South Wales. The Tribunal found in relation to the contract that false and misleading representations were made that the system could be connected to the power grid and that the electricity bills of the Respondent would be halved.

2. The grounds of appeal were stated in the Notice of Appeal as follows: The respondent believe the $16126 refund is excessive and unreasonable. The purchase fee for solar is only $9989 and it is paid in 12 months instalment. The applicant demand $16126 to be refunded, which is not reasonable. To remove the solar system from the premise is also not necessary.

1. In addition there was an application for leave to appeal expressed to be upon the following grounds: The respondent believe the decision Tribunal make was not fair and reasonable and equitable, also the decision was against the weight of evidence. Please see below. This happened may due to the fact the respondent was not present on the court but arranged a audio section instead. The court did not give sufficient time and opportunity to respondent to argue the case.

1. At the hearing of the appeal we were informed that orders 3 and 4 made below have been complied with as indeed has order 1. [NAME] who represented the appellant at the appeal conceded that it did not raise any question of law. Nor did it appear to us that any such question was available to be argued. 2. [NAME] who made submissions to us at the hearing through an interpreter argued that there had been a substantial miscarriage of justice enlivening the operation of cl 12 Schedule 4 to the Civil and Administrative Tribunal Act he was unable to point to any foundation for that assertion. It does not seem to us in the circumstances that the decision was not fair and equitable, and it does not seem to us that the decision was against the weight of evidence. See Collins v Urban [2014] NSWCATAP 17 at 77. There was no suggestion that significant new evidence has arisen.

3. Accordingly we refuse to give leave to appeal. We note incidentally that [NAME] in submissions referred to money he had spent in rectification work and sought a refund of $2,000. This was not a matter subject to the appeal and we make no ruling upon it.

4. However two matters remain to be considered. Within the award made by the Tribunal below was the sum of $4,000 described as a "government rebate". There could in our view be no entitlement of the respondent to that sum nor we think is the appellant entitled to it. We note the undertaking of [NAME] solicitor for the respondent that out of the monies standing to the credit of his trust account he will account for the sum of $4000 to the relevant Commonwealth Instrumentality.

5. The second matter requiring consideration is the application for costs made by [NAME]. Costs orders are governed by S 60 of the Civil and Administrative Tribunal Act. Costs may only be awarded where there are special circumstances some of which are listed in subsection 3. In this case in our opinion the appeal was wholly devoid of merit. It also raised matters which were not pursued by the appellant including an attempt to overturn orders 3 and 4 which had actually been complied with before the appeal hearing.

6. We find that there were special circumstances and we propose to order that the appellant pay the costs of the appeal. However we do not think we have enough material to enable us to quantify those costs despite [NAME]'s request that we do so.

7. In the result 1. We order that the appeal on a question of law be dismissed.

2. We refuse leave to appeal on any other ground.

3. We order the appellant to pay the respondents' costs of the appeal on the ordinary basis as agreed or assessed.

4. We note the undertaking of [NAME] to account to the appropriate instrumentality of the Commonwealth Government in respect of $4,000 of the monies held in trust on behalf of the respondent.

********** 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: 29 May 2018