Fam v Assassin Pert Control Pty Ltd t/as Assassin Pest Control

Fam v Assassin Pert Control Pty Ltd t/as Assassin Pest Control - [2024] NSWCATAP 106 - NSWCATAP 2024 case summary — Zoe

[11]

Leave to appeal

Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if 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).
The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 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.
Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

[12]

The Decision

It is appropriate to briefly summarise the Decision.
After setting out some formal matters, and setting out the appellant's contentions, the Tribunal states at [7]: There is no written quote. There is no documentary evidence upon which to establish the agreed terms of the contract. The agreement was entirely oral and made by telephone. The respondent says several telephone calls were made by the applicant to discuss the works before the applicant agreed to engage the respondent. The applicant did not appear to have a clear recollection of the telephone calls. The applicant initially stated he made "about one or two calls" to the respondent. When questioned whether it was one call or more than one call the applicant stated it "should be one call" but subsequently conceded he did not "recall how many [telephone calls there were] in the beginning".
At [8] to [13] the Tribunal then sets out relevant findings of fact, noting at [10] that: The respondent agrees the agreement with the applicant was to provide full perimeter termite prevention around the house by applying Termidor by trenching and injecting pre-existing drill holes in the brickwork and piers and plugging the drill holes upon completion. The respondent agrees the works would be warranted but states the Termidor warranty offered is 8 years, not 7 years as contended by the applicant. The respondent agrees the work included one free follow up visit in 4 to 6 weeks' time and also agrees they agreed to provide a free cockroach spray. However, the respondent denies a termite inspection and report was included stating this was quoted separately but not accepted by the applicant.
After [13] then Tribunal then sets out a series of issues to be determined.
The first issue was "Did the parties agree the works were to include a termite inspection and report?" For the reasons set out at [14] to [17], the Tribunal's conclusion was that the agreed works did not include a termite inspection and report. Accordingly, the Tribunal found that the respondent was not in breach of contract for failing to provide a termite inspection and report.
The second issue was "Was the cockroach spray inadequate?". For the reasons set out at [19], the Tribunal was not comfortably satisfied on the balance of probabilities that the respondent failed to adequately carry out the cockroach spray treatment or that these services and/or associated products are not fit for purpose.
The third issue was "Did the respondent provide complete building perimeter termite control?". After noting at [22] that there was no expert evidence to establish inadequate or incomplete trenching in the subfloor (amongst other matters), the Tribunal concluded at [24] that was not comfortably satisfied on balance of probabilities that the respondent failed to adequately carry out the trenching work in the subfloor.
The fourth issue was "Is there a break in the permitter termite protection arising from the pergola?" For the reasons set out at [25] to [31], the Tribunal concluded that as the end result of the respondent's work was that there was not complete perimeter protection, the respondent had failed to provide a product that was fit for purpose. In that regard, the finding of the Tribunal was that the respondent had failed to provide services that were fit for a disclosed purpose under s 61 of the ACL. However, that was limited to an incomplete perimeter protection around the pergola, not to other complaints by the appellant raised at the Tribunal hearing regarding the quality of the services provided.
Having made those determinations, the Tribunal concluded at [33] there should be work orders in the form set out above.

[14]

First ground of appeal, the Decision was not fair and equitable

There are three matters set out in the Notice of Appeal on which the appellant relies.
As to the first point relating to the ACCC Code of Practice, as best we can determine, this was not before the Tribunal. What was before the Tribunal was the final draft of the Australian Environmental Pest Managers Association Code of Best Practice for Termite Management (AEPMA Code). Apparently, the Tribunal declined to take this document into account as it was a draft, as clearly it was. In any event, the AEPMA Code is a Code for members of the AEPMA and there was no evidence before the Tribunal or the Appeal Panel whether the respondent was a member, although we infer from Mr Quinn's oral submissions that the respondent was not.
The second point relates to an email from E1 Pest Solution to the appellant dated 4 February 2024. That email relevantly states: For a number of reasons - so rain doesn't get into the holes and impact the Termicide - hazard - presentation looks better.
The appellant claims that this document states the importance of installing plugs to the drilled holes, a point ignored by the Tribunal. Our view is that without seeing the correspondence of the appellant to which this email was responding, that submission lacks a sound basis.
The third point relates to an email from the appellant to the respondent dated 24 September 2023. It is a lengthy email which the appellant says "proves my story".
We accept that the Tribunal did not refer to this email specifically in the Decision, however, while it is the obligation of the Tribunal to set out relevant findings necessary to determine the matter, it is not necessary to make findings on every argument and every submission, particularly where the arguments advanced are numerous and of varying significance, and may not be supported by evidence: see CEU v University of Technology Sydney [2018] NSWCATAD 13 (CEU) at [79]; Bajic v Paraskevopoulos [2018] NSWCATAP 192 (Bajic) at [55].
The first ground of appeal does not raise a question of law and therefore leave is required.
We are not satisfied that this ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
Accordingly, we do not grant leave in respect of this ground.

[16]

Third ground of appeal

The complaint here is that the Tribunal did not "achieve" or follow" Australian law. These laws are said to be:

s 52 of the Property and Stock Agents Act 2002 (NSW) (PSA Act);
s 18 of the ACL;
Sch 2 of the Competition and Consumer Act 2010 (Cth) (CAC Act);

The appellant makes various issues on these issues. As to s 52 of the PSA Act, the appellant states: According to The Australian Consumer Law (ACL) Section 52 of the Property and Stock Agents Act 2002 (the Act) requires that a licensee or certificate holder must not induce a person to enter into any contract or arrangement by any statement, representation or promise that is false, misleading or deceptive (whether to the knowledge of the agent or not), And according to the Australian Competition and Consumer Commission (ACCC), "By exchanging money for the product/service, consumers are entitled to a product/service that is safe and without fault that looks acceptable and performs as expected. If the product/service does not, consumers have a right to a repair, replacement or refund." It has been decided by the Court Member that this law is breached by the respondent and so decided on him to do a Work Order by redoing the treatment job around the property and to the Pergola area, but didn't inforce [sic - enforce] the respondent to do a proper House Inspection, and left that to his own decision, or to do under house treatment, or to do the roof inspection / protection considering the fact I have an active termite which is the right that the above mentioned law granted.
As to s 18 of the ACL the appellant states: The ACL contains a provision which aims to protect consumers by preventing businesses from misleading customers. Section 18 of the ACL provides: (1) a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive. The respondent breached this law by misleading me when stating that he didn't do a House Inspection (at the first hearing on 08 Feb 2024), because I didn't pay for it, while it has been proved to the Court that the House Inspection is a mandatory part of the job according to the Australian Practice of Termite Management, also according to the Co-worker statement Mr. Bevis as explained above in the Case Facts Section, part "1" The Court Member didn't take in account that misleading and the breach of the above mentioned Law, and didn't give a related decision to inforce [sic - enforce] the respondent to do a full for Termite Management House Inspection and provide its written Report according, also, to ACCC Code of Practice for Termite Management.
As to Sch 2 of the CAC Act, the appellant states: 4 - Under COMPETITION AND CONSUMER ACT 2010 - SCHEDULE 2 The Australian Consumer Law, a business is prohibited from wrongly accepting payment for goods or services that it does not intend to supply or is unable to supply. This is particularly relevant during current restrictions relating to events, travel and consequential limitations on supply of goods. The respondent confess clearly that at the beginning of the job, he explained to me that the job which he is going to do will not be complete and won't meet the warranty requirement by not doing the Pergola injection the way he wants, and in the meantime he took a Full Payment, that is confirmed, and recorded at the invoice, which should be the cost paid for doing a full and guaranteed Termite Management job, which is a clear breach for the law above, The Court Member didn't take that into account in her Final decision and ordered re-doing the full termite management job, especially that the job the respondent has done is already expired and not guaranteed by Termidor where no complete job is achieved and no inspections were done on time, her honour didn't take in account the fact that my house needs a full termite management from the beginning regardless of what has been done 10 months ago, not providing me with that is not applying for this Law, 5 - Both of the Respondent and his co-worker confirmed that they didn't get into the roof of my house, and didn't apply any kind of treatment there, house roof should be a part of the Termite Management, the court order didn't take in account to order treatment for that part to secure a full protection for my house according to the agreement and complying to the above ACL 6 - Her honour didn't give an order for doing the Inspection Report where there is no evidence that we agreed on doing it, while the Australian Cod of Practice states clearly in section 12, page 28 that "written timber pest inspection reports are mandatory components of termite management in and around existing buildings", which proves that the Inspection Report was part of the agreement, actually it has to be done regardless of the agreement as a mandatory part of the job, The respondent stated at the hearing that he didn't do it The Court member refused the interpreting of these wording and considered that these wording doesn't mean that it is a MUST to do an Inspection Report, which was reflected on her Final Decision by not enforcing the respondent to do it, not doing it means no full termite management, Pest manager cannot decide the proper termite management plan without doing house inspection to decide the suitable plan for the current condition, Means the Final Decision failed to give me the full house protection according to the ACL
Perhaps the appellant's submissions on this ground of appeal are best summarised on p 6 as follows: The Final decision didn't apply the ACL and Fairtrading Law in regards the consumer right when a service provider breaches the law, where the Final Decision:- 1- Doesn't ensure that my house is treated already from the active termite 2- Doesn't enforce the respondent to do a full house protection, protecting around the property is just a part of the termite protection management, which should include roof inspection and protection if required, and under house / subfloor protection, especially as mentioned above, any treatment the respondent applied is now, not recognised by Termidor warranty rules being more than 10 months without inspection, no protection and sealing for the drilled holes which might led already to damaging the chemical, 3 - Didn't put in account the damages costs which might my house incurred in that 10 months period being unprotected and untreated from active termite, 4 - Didnt put in account my financial and other losses incurred due to this proceeding which were avoidable if the respondent did a complete proper job and didn't drag me in this avoidable proceeding Considering the fact for this nature of such job, that doing part of the protection job equal to not doing a job at all, the house has to be either fully protected or the whole job is useless, any link or part left without treatment can be a door for the termite to enter and damage the whole house, that fact which was confirmed by the respondent himself on the first hearing dated 08 Feb 2024, patching the job with doing protection around the property will actually be useless without protecting the rest of the house, and no other Pest manager will do the rest of the house for me and give me that 8 years warranty without doing the full house protection by himself, means the Final Decision will be for no actual benefit as long as didn't ensure the full house protection which can't be achieved by protecting around the property as it comes in the Order, beside not taking into account the other considerations mentioned above It wasn't complying to the Australian Consumer law ACL, and Fair Trading Law to not give me a full house Termite management / protection, and full refund of my incurred losses that caused only by the respondent breaches of the law. (typographical errors as in original)
As the Appeal Panel discussed in Crystele Designer Homes Pty Ltd v Wood [2023] NSWCATAP 242 at [41], where it is alleged that the Tribunal had acted on a wrong principle, a question of law is raised, that being whether that principle was wrong or correct and, if wrong, whether the Tribunal acted on that principle and whether that materially affected the outcome: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [48]-[53]. This passage was recently applied by the Appeal Panel in relation to the exercise of the discretion under s 48O of the Home Building Act 1989 (NSW): Noori Homes Pty v Patel [2023] NSWCATAP 149 at [45]-[47].
Accordingly, we are satisfied that this ground of appeal raises a question of law and that leave to appeal is not required.
We find each of the submissions set out above on this ground of appeal to be confusing and misconceived. The complaint about the PSA is misconceived because the respondent was a pest controller, not a licensed real estate agent; stock or station agent; or strata managing agent. The PSA is inapplicable.
In respect of the complaints about (a) not inspecting and treating active termites; (b) not providing a termite treatment for the whole of the house; and (c) not providing an inspection report, the Tribunal made factual findings on those issues, and found that they were not part of the agreed scope of works under the terms of the contract. Further, we note the respondent disputed there was any evidence of active termites. There is no established error in respect of the legal principles applied by the Tribunal.
On the basis of those submissions, we detect no error on this question of law by the Tribunal, and therefore this ground of appeal is dismissed.

[17]

Fourth ground of appeal

The appellant submits that: The Court Member didn't take in her account the safety of both parties and consideration to the aggression level and sensitivity of the relationship between the Respondent and the applicant, where the respondent showed at the end of the hearing dated 22 Feb 2024 his intention to report the applicant to the Police …
The appellant says that that "aggression" was later confirmed by the respondent's communications.
The appellant further submits that: Considering the reluctance of the respondent to execute the Work Order in full, and the huge doubt about even giving my house an honest and Guaranteed job, and really protect it, reflected by undertaking such attitude, and considering the safety of all parties, I'm asking in my appeal for the Final Decision taking the suitable order that avoid such confrontation between the respondent and the applicant, and prevent an expected violence from the respondent, and accept my requisition in my final submission to get the respondent pay the cost of one of the two supplied quotes to redo the job by another Pest manager Note: Please be noted that in this type of jobs, no Pest manager will accept to do part of the job and gives Full 8 years warranty, to give that, he has to do the full job by himself so he can guarantee it
Save for the "safety" issue, the appellant has not presented any other reason why the Tribunal erred in making this order. It was clearly open to the Tribunal to make a work order under either the Fair Trading Act 1987 (NSW) (see s 79(b)) or the ACL. The Tribunal's decision to make the work order was made in the exercise of the Tribunal's discretion.
When an exercise of discretion is challenged, the usual point of reference is the joint judgement of Dixon, Evatt, and McTiernan JJ in House v The King [1936] HCA 40; 55 CLR 499 at 504-505: [i]t is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed ... It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
As a result, in any challenge to a first instance decision that involves an exercise of discretion, the appellant must establish that the decision at first instance was the result of either:

acting on a wrong principle;
being guided by extraneous or irrelevant matters;
making a mistake as to the facts;
failing to consider a relevant matter, or
a result that is so unreasonable or plainly unjust as to warrant an inference that the discretion has not been properly exercised: TJM Holdings Pty Ltd v Woori International Pty Ltd [2024] NSWCATAP 72 at [34].

We are not satisfied that any of those matters are established. Accordingly, we would not grant leave in respect of the fourth ground of appeal.
In any event, the Tribunal Member appears to have been aware of some tension in the relationship between the parties, as she asked them to leave the hearing room separately when the second day of the hearing concluded. We infer therefore that the Member did not consider that the relationship of the parties was in such a state that it was inappropriate to make a work order.

At a glance

Court

Decision date

Source

Judgment (22 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (16)

Cited By (2)