Flemings Property Services Pty Ltd v Raleigh

The Decision

1. In the Decision the landlord is the applicant whereas in the appeal he is the respondent. Likewise in the Decision the agent was the respondent whereas in the appeal it is the appellant.
2. The Decision was set out in 19 paragraphs, and relevantly stated, with emphasis added: 3. The Tribunal has jurisdiction to determine the dispute as a consumer claim under Part 6A of the Fair Trading Act NSW 1987. There was no dispute that the parties had a contract between them in the form of a Residential Exclusive Management Agency Agreement dated 24 June 2019 (the Agency Agreement), in which the respondent was managing the applicant's rental property at Cootamundra, NSW. 4. There was no issue that there was a leak reported by the tenant in November 2021 and the respondent engaged one of their external contractors [Wayne] Murdoch to undertake a roof repair at the property, as he had regularly done painting and roofing repairs for other properties managed by the respondent in the Cootamundra area. The respondent believed at all times until relatively recently that Mr Murdoch held a roofer's license no 222023C… The roof repair work was done by Mr Murdoch on about 22 December 2021. That repair cost $1800 and it was invoiced by Mr Murdoch to the respondent who then passed the invoice on to the applicant who paid it on about 2 February 2022. 5. The applicant then sought to have further repairs done to the roof of the property after storm damage and emailed the agency on 10 February 2022 for a recommendation. By email dated 10 February 2022 the respondent recommended Wayne Murdoch from Coota Coatings do that work. 6. Mr Murdoch quoted $8850 to do the further repairs, which the applicant agreed to and the applicant engaged him directly. Mr Murdoch did the roof repair work and the applicant paid for it in 2 amounts - $4425 on 31 March 2022 and the second amount of $4425 on 20 April 2022. … 8. On 3 November 2022 the applicant engaged Mark Ward of Ward Building Consultancy Pty Limited to inspect all repair works done by Mr Murdoch. Mr Ward's report dated 7 November 2022 is in the evidence filed by the applicant. The respondent did not contest Mr Ward's opinions set out in that report or file evidence to contradict those opinions. 9. Mr Ward is of the opinion that the roof repair works undertaken by Mr Murdoch were defective, incomplete and not undertaken in accordance with NSW Guide to Standard and Tolerances 2017, Part 6 Roofing and AS2050 - 2-2 - Roof Tiles - Installation, Part 3.6 Workmanship. Mr Ward states that they were undertaken by a contractor without the requisite qualification and part of what has been paid for has not been done. 10. The applicant filed a claim against Mr Murdoch in the Tribunal in file number HB22/45957. Mr Murdoch did not attend the hearing and judgment was ordered against him on 16 January 2023 for $10,650 being the total amounts paid by the applicant to Mr Murdoch for the roofing works in December 2021 and February 2022. The applicant has been unable to successfully enforce the money order against Mr Murdoch except for a garnishee order where he received $356. 11. The applicant claims that Mr Murdoch was not a licensed roofer and the respondent failed to check his qualifications to undertake roofing work - both at the time he did the first repair work in late 2021 and then again when the respondent recommended to the applicant on 10 February 2022 that Mr Murdoch be engaged by the applicant to undertake the further roof work. The applicant claims that the respondent was required to check the contractor's licence in accordance with the provisions of the Agency Agreement, and Schedule 2 Part 2 Clause 26(2d) of the Property and Stock Agents Regulation NSW 2022 to ensure he was currently licensed as a roofer. The applicant also relies on a document titled Flemings Property Management Guide for Landlords which the applicant says he reviewed before signing the Agency Agreement. That document provides at page 10 (being page 44 of the bundle): "Flemings will ensure that any repairs to your investment property are competitively priced, quality assured and guaranteed.." ... All tradespeople engaged by Flemings must provide a copy of their licence and appropriate government issued work cards, as well as evidence of their public liability insurance before carrying out any work on your property. We also require an ABN and Workers Compensation details.." The applicant says he relied on the contents of this document when signing the Agency Agreement. 12. The respondent contests the claim on the basis that it was not the respondent who engaged Mr Murdoch in February 2022 for the work which cost the applicant about $8500. The respondent also claims that their staff never knew Mr Murdoch was not licensed because he had provided a copy of his licence to the agency when he first started working for the agency; that his work was competent. The respondent submits it did not intentionally set out to mislead or deceive the applicant. The respondent submits that the proper claim is against Mr Murdoch who did the work and not the respondent. 13. Based on the evidence and submissions made at the hearing I find on the balance of probabilities as follows: a) At no relevant time since 2017 has Mr Murdoch had a licence to do roofing work, which is established by the applicant's ABN Lookup search; b) The respondent was provided with a copy of the licence of Mr Murdoch at some point prior to the December 2021 roof repair work being undertaken but because Mr Murdoch had done a number of jobs for the agency at a satisfactory standard on a number of occasions, the relevant property manager did not make independent inquiries to ascertain the authenticity of the licence at the time of the work being done on the applicant's property; c) The document which Mr Murdoch showed the respondent purporting to be a licence for roofing work was a false record; d) Based on the expert report of Mr Ward, I find that Mr Murdoch's roofing repair work which he undertook to the applicant's property in December 2021 and then again in February 2022 is defective and incomplete for the reasons set out in Mr Ward's report, the work paid for is of no value to the applicant; and the estimated cost to re-do the work is $8500; e) To date the applicant has not had the roofing works re-done. 14. The Agency Agreement in clause 4.1(d) refers to the agent being authorised to engage trade contractors, but does not specifically state that such contractors should be duly qualified. However, clause 4.7 of the Agency Agreement states that for emergency repairs the agent is authorised to engage appropriately qualified or licensed tradespeople and in Section H on page 2 of the Agency Agreement it notes that the agent may engage appropriately qualified tradepersons to effect repairs and maintenance. Schedule 2 of Part 2 of the Property and Stock Agents Regulation 2014 which was in force at the time the work was done (not the 2022 version) does not expressly require an agent to engage appropriately licensed contractors to do repairs. 15. However, I am satisfied given the requirement for appropriately qualified and licensed contractors to undertake urgent work and the wording of Section H, that it was an implied term of clause 4.1(d) of the Agency Agreement that the respondent would only engage appropriately licensed contractors to do repair works on the properties they were managing under these agency agreements. Accordingly, I find that the respondent's failure to check Mr Murdoch's licence with Service NSW of NSW Fair Trading, both of which are relatively easy searches (their ease probably reflecting the reason that consumers should be able to easily identify if a contractor is licensed or not) and would have revealed he was not licensed for roofing work, was a breach of the Agency Agreement. 16. As the applicant was a consumer of the respondent's services in the course of business, the respondent was also under a statutory duty to provide its property management services with due care and skill under the consumer guarantee set out in section 60 of the Australian Consumer Law. I am satisfied on the evidence that: a) Mr Murdoch did not hold any qualifications or a licence to do the roofing work; b) the respondent engaged Mr Murdoch in late 2021 and also again in February 2022 to do the roofing work, which engagement and recommendation was made in the course of providing property management services to the applicant under the Agency Agreement; c) the applicant was reasonably entitled to assume that the respondent was engaging a contractor and then providing a recommendation of a contractor who was appropriately qualified to do the roofing work; d) the respondent engaged Mr Murdoch to do the roofing work in late 2021 and the applicant engaged Mr Murdoch in February 2022 to do the roof repair work because of the recommendation of the respondent. 17. Given these findings I am satisfied that the engagement of Mr Murdoch in December 2021 and recommendation of him in the email dated 10 February 2022 to the applicant, on both occasions without the respondent checking he was appropriately licensed to do the work, was also a breach by the respondent of the respondent's duty under section 60. 18. … I do not consider the onus has been met to make a finding that the respondent engaged in misleading or deceptive conduct under section 18 of the Australian Consumer Law. 19. I am satisfied that the applicant has suffered economic loss as a result of the breaches by the respondent of the Agency Agreement and section 60 of the Australian Consumer Law, which loss is the total amount paid to Mr Murdoch for work which the applicant's expert says the applicant has received no benefit for and the work needs to be redone and which the applicant has been unsuccessful in his attempts to enforce against Mr Murdoch. Mr Ward estimates the cost of that work to be approximately $8500. This is just an estimate. However the amounts paid to Mr Murdoch is an actual loss of the applicant which would not have been incurred but for the fact that the respondent had engaged Mr Murdoch to do the work in December 2021 and then recommended Mr Murdoch to undertake further work in February 2022. It follows that I am satisfied that the appropriate award of compensation is the amount of the money order against Mr Murdoch of $10,650 less the amount of $356 which has been recovered by the applicant through enforcement procedures.

Grounds of appeal

1. The appellant's six grounds of appeal were: 1. Given the [respondent] did not allege a breach of section 60 of the Australian Consumer Law (ACL) in the documents served prior to the hearing, nor orally during the hearing, the Member: 1. ought not have found the [appellant] breached section 60 of the ACL; or alternatively 2. ought to have provided the [appellant] with sufficient time to respond and file any evidence in response to the allegation it breached section 60 of the ACL. 1. In light of the matters at paragraph 1, the [appellant] was not afforded procedural fairness. 2. Having found the applicant had filed a claim against Mr Murdoch in the Tribunal in file number HB22/45957 and subsequently been awarded damages for the same loss that he claims by his current application (i.e. $10,650, being the total amounts paid by the applicant to Mr Murdoch for the roofing works in December 2021 and February 2022 (see paragraph 10 of the Reasons)), the Member ought to have dismissed the [respondent's] application on the basis that: 1. the claim is an abuse of process; or 2. the order requiring the [appellant] to pay $10,294 gives rise to the possibility of double recovery and/ or the [respondent] profiting from his applications; or 3. by operation of section 34 of the Civil Liability Act 2002 (NSW), Mr Murdoch has been found liable for all of the loss that is claimed against the [appellant], and the [appellant] is liable for none of it. 1. Having found that the [respondent] engaged Mr Murdoch to do the work in February 2022 (see paragraph 11 of the Reasons), the Member erred in finding: 1. the [appellant] breached the agency agreement and/ or section 60 of the ACL; 2. in the alternative to sub-section (a) the [appellant] breached the Agency Agreement and/or section 60 of the ACL by 'recommending' Mr Murdoch in February 2022. 1. The Member erred in finding the [respondent] suffered loss in connection with the work performed by Mr Murdoch in December 2021. 2. The member erred in finding that a 'recommendation' is a 'service' within the meaning of that term in section 60 of the ACL.
2. The appellant wrote, in the Notice of Appeal, that the orders the Appeal Panel should make are: 1. Mr Raleigh's application be dismissed. 2. Alternatively, Mr Raleigh's application should be heard again with the [appellant] given sufficient time to understand the allegations put against it.
3. The appellant did not seek leave to appeal on any grounds other than questions of law.

Reply to appeal

1. The respondent supports the Decision. He does not agree with any of the appellant's grounds of appeal and emphasised that he was self-represented. It must be observed the appellant has also been self-represented throughout the appeal and the Tribunal proceedings.

Evidence and submissions

1. All of both parties' evidence before the Tribunal was provided to the Appeal Panel by the appellant, along with the submissions made to the Tribunal.
2. The appellant relied on written and oral submissions on the appeal, as did the respondent.
3. The appellant did not attempt to file any evidence which had not been tendered before the Tribunal. The respondent attempted to file a further document.
4. During the appeal hearing, the Appeal Panel determined that the respondent could not rely on fresh evidence which was reasonably available at the time of the Tribunal hearing. The only document which the respondent attempted to file in the appeal which was not before the Tribunal below was Quote No: 1050 dated 3 August 2023 by "wattle roofing" for $15,840 worth of roofing works: pp 15 - 48 of the respondent's documents. When asked why this quotation was not filed with the Tribunal the respondent said, during the appeal hearing, "I tried to get it before original hearing but this roofer only got back to me recently. I'm not saying Member should have awarded more than what she did". The Appeal Panel finds such a quotation was reasonably available at the time of the hearing and therefore cannot be filed for the first time in the appeal.

Nature of an appeal

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds: s 80(2)(b).
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing a question of law giving rise to an appeal as of right. These include, but are not limited to: 1. whether there has been a failure to provide proper reasons where they are required; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account relevant (that is, mandatory) considerations; 6. whether the Tribunal took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; 8. whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. Since this is an appeal against a decision of the Tribunal in its Consumer and Commercial Division, cl.12 of Sch.4 of the NCAT Act applies: (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because - (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
4. Section 81 of the NCAT Act sets out how the Appeal Panel may determine an appeal: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
5. As will be seen below, the Appeal Panel reconsidered the case put to the Tribunal on the basis of the evidence before the Tribunal in accordance with s 81(1)(e) and varied the decision under appeal in accordance with s 81(1)(b) of the NCAT Act.

Consideration of the grounds of appeal

1. The grounds of appeal can be grouped in the following way: 1. Grounds 1, 2, part of grounds 4 and 6 that concern s 60 of the ACL; whether it was procedurally fair to consider s.60, whether the Member should have found a breach of s 60 and whether a "recommendation" is a "service" within the meaning of that term in s 60; 2. Ground 3, which claimed the Member should have dismissed the application against the appellant because the respondent already had an enforceable money order for the same loss against Mr Murdoch; 3. Ground 4, in so far as it concerns breach of contract/agency agreement only. Alleged errors concerning breach of s 60 are dealt with above. This will be considered together with Ground 5 which is an allegation that the Tribunal made an error of fact in finding the respondent suffered loss in connection with the work performed by Mr Murdoch in December 2021.

Grounds 1, 2, part of 4 and 6 concerning s 60 of the ACL

1. Grounds 1 and 2 allege the Tribunal failed to afford the appellant procedural fairness by considering s 60 of the ACL without giving the appellant notice that s 60 would be considered. Whether the Member afforded the appellant procedural fairness is a question of law.
2. Section 60 of the ACL is: If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
3. During the appeal hearing both parties agreed the respondent did not raise s.60 of the ACL rather it was the Member who raised this cause of action during the hearing on 23 May 2023. The respondent said he raised misleading and deceptive conduct (ACL, s 18) because he misunderstood the law. He said he should not have referred to s 18 ACL and instead should have relied on s 60 which raises due care and skill. The parties agreed the first time s 60 of the ACL was mentioned was 38 mins and 40 seconds into the hearing which is set out on page 7 of the transcript extracts provided by the appellant: Raleigh I believe that Flemings failed to exercise reasonable care in their use of Wayne Murdoch and I … Member So is that an Australian Consumer Law guarantee? Have you turned your mind to that? Raleigh The above, the Civil Claim 2002. Member The Civil Liability Act is different to Australian Consumer Law. Which says that, Australian Consumer Law has a section 60 which says that in business must provide their services with due care and skill.
4. The respondent said during the appeal hearing he "adopted" s 60 as a basis for his claim against the appellant, after it was raised by the Member.
5. The appellant submitted it appeared at the Tribunal hearing, and provided evidence and submissions opposing the application, on the basis of breach of contract and breach of s 18 of the ACL and "breach of schedule 2 Part 2 26 9(2nd) of the property stock and station agent regulation". The appellant raised the issue of being taken by surprise by the s 60 ACL allegation during the hearing in the following way (44 mins 10 secs into sound recording, set out on page 7 of the transcript extracts provided by the appellant): Flemings Initially we were sort of... The applicant was relying on or accusing us of misleading and deceptive conduct. It's now relying on other legislation. So, we kind of were a bit confused, to be honest, respectfully, what we were being accused of. Member Ah, well that's worth just confirming Mr Raleigh. Are you relying on misleading and deceptive conduct? Reilly I still believe some parts may be deceptive. Possibly not, I don't know who by. Member Misleading or deceptive? Reilly Misleading. Yup Member What part in particular? Raleigh I said, when they said recommend they use. Maybe it was in good faith. I don't know. But they recommended him to me. And there was a breakdown in procedure where they didn't verify his licence. Member Does that clarify?
6. Mr Flemings for the appellant then goes on to "strongly dispute" that the appellant was were being misleading" and makes several submissions to make good this point.
7. It does not appear s 60 of the ACL was raised again in the Tribunal hearing. Breach of s 60 was a basis for the order that the appellant pay the respondent money in the Decision, as set out above.
8. The respondent to the appeal did not dispute the substance of these grounds of appeal. In his written submissions filed in the appeal, he stated: * I am seeking the order for Flemings Property Service for the breach of Section 60 of the Australian Consumer Law. The amount I am seeking the order for is $15840. … * I am satisfied that the finding by the Member is correct and is based on a breach of section 60 of the Australian Consumer Law. The respondent supports the Members [sic] findings…
9. The Appeal Panel accepts the appellant's contention that s 60 was not raised by the respondent in his application, as can be seen above, nor was it raised by the respondent in the submissions he made to the Tribunal. The written submissions of the parties before the Tribunal were filed by the appellant in the appeal, and there is no reference by either party to s 60 of the ACL.
10. In its written submissions on the appeal the appellant wrote: In support of Ground 1 and 2, we submit that it was not open to the member to find that Flemings had contravened s.60 of the ACL because that allegation was never made against us. That is to say, the allegation was never made in any of the documents filed with the tribunal prior to or during the hearing. Further, despite the member raising the consumer guarantee at s60 of the ACL during the hearing, when asked by Flemings to confirm precisely what he is alleging, Mr Raleigh said he was alleging misleading and deceptive conduct (i.e. S 18 of the ACL). Mr Fleming [sic] proceeded to respond to strongly dispute that allegation. There was no mention of s60 during the exchange (see transcript number 10 annexed to the timetable of events).
11. The Appeal Panel agrees with the appellant that it was a denial of procedural fairness for the Tribunal to raise a cause of action, namely a breach of the consumer guarantee in s 60 of the ACL, and to let the respondent "adopt" that cause of action during the hearing, without: 1. ensuring the appellant understood that s 60 was being relied on by the respondent; 2. affording the appellant the opportunity to take such further steps as it thought fit to respond to the new cause of action.
12. It is clear from the transcript extracts which the appellant provided to the Appeal Panel, and the respondent accepted as accurate, that when s 60 of the ACL was raised at the Tribunal hearing, the appellant sought clarification about "what we are being accused of". Clarification was provided by repeating that the respondent alleged the appellant engaged in misleading conduct in breach of s 18 of the ACL, which is not a consumer guarantee and is a separate cause of action to s 60 of the ACL".
13. In summary, there was a denial of procedural fairness for s 60 to become a cause of action relied on by the respondent for the first time in the final hearing, without the appellant understanding this was one of the bases the respondent relied on to claim compensation from it.
14. Grounds 1(b) and 2 are thus made out. What orders follow will be explained below.
15. Grounds 1(a) and 4(a) involve questions of fact and law, and thus require the leave of the Appeal Panel . The appellant made no submissions setting out why it ought to be granted leave to appeal on these grounds because it wrongly considered it could appeal as of right as it thought these were questions of law. Without any basis to do so, the Appeal Panel cannot grant leave to bring these grounds of appeal.
16. Grounds 4(b) and 6 do concern questions of law; essentially whether "recommending" Mr Murdoch to do the roofing work the respondent's investment property is a "service" within the meaning of s 60 or is capable of amounting to a breach of s 60.
17. In relation to Ground 4, the appellant made written submissions that it only engaged Mr Murdoch for the respondent in December 2021 for $1,800 and this work was "in no way connected to Mr Raleigh's engagement of Mr Murdoch, which gave rise to the loss claimed". We will revisit this submission later in these reasons. Suffice it to say nothing was submitted under Ground 4, either in the written or oral appeal submissions, which suggested that s 60 cannot be breached by the agent "recommending" Mr Murdoch in February 2022 (or at all). The appellant made no submissions at all under Ground 6. The Appeal Panel raised Ground 6 with the appellant and asked it for case law or an expansion of their allegation that a recommendation is not a service within the meaning of s 60 of the ACL. However, it was unable to do so.
18. The respondent to the appeal did not, in written or oral submissions, engage with these questions of law.
19. The Appeal Panel is not satisfied that the Tribunal made an error of law in respect of a question of law by finding that "recommending" a tradesperson to undertake repairs at the rental property is included in "services" referred to in s 60 of the ACL. The Decision set out at [14] and [15] some of the services the parties agreed the appellant would carry out under the Residential Exclusive Management Agency Agreement which the respondent tendered in the Tribunal hearing. Clauses 4.1(d) and 4.7 and concern duties the respondent authorised the appellant to undertake on behalf of the respondent. It was open to the Tribunal to find that, in "effecting repairs to and maintaining the property or engaging tradespersons to do so", one of the services the appellant is undertaking, in trade or commerce, to the respondent (consumer), is the recommendation of appropriate tradespersons to repair or maintain the property.
20. Ground 4(b), in so far as it concerns s 60 and Ground 6 are not made out and are dismissed.

Ground 3 - double recovery and Civil Liability Act

1. It is an accepted fact that the respondent successfully sued Mr Wayne Murdoch in Tribunal proceedings HB 22/45957 by obtaining a money order against Mr Murdoch in the amount $10,650 for oral reasons given. The Appeal Panel, and presumably the appellant, are ignorant of the oral reasons which were read out to the respondent at the end of the hearing of HB 22/45957, in the absence of Mr Murdoch.
2. The Tribunal at [19] of the Decision reduced the amount awarded to the respondent by $356 as that amount had apparently "been recovered by the applicant through enforcement proceedings". How that information was given to the Tribunal was not clear as there is no transcript excerpt of any oral evidence or submissions during the hearing and there is no evidence from the respondent which reveals the fact he was only able to enforce the certified money order he obtained against Mr Murdoch to the amount $356.
3. During the appeal hearing, the respondent submitted to the Appeal Panel that he told the Tribunal he only received $356 through a garnishee order, and that after the second garnishee order Mr Murdoch's accounts were closed. The parties told the Appeal Panel, and the Appeal Panel accepts, that the Tribunal asked each party's representative to take an oath or affirmation to tell the truth so their answers to questions could be considered oral evidence upon which the Tribunal could make findings of fact.
4. The parties agreed that there was no cross-examination during the Tribunal hearing.
5. Ground 3 is that once the Tribunal became aware of the previous home building application against Mr Murdoch, in particular the fact that Mr Murdoch was ordered to pay the respondent the same money the respondent was claiming against the appellant, "the Member ought to have dismissed the [respondent's] application". We do not accept that submission.

The rule against double recovery

1. The authorities establish that a party may not recover damages from more than one respondent (or defendant). An applicant may procure judgments against two respondents for the same loss, but the applicant cannot recover or enforce both judgments as this would lead to the applicant recovering more than the assessed loss for the breach.
2. The Court of Appeal considered the rule against double recovery, as the appellant described it in Ground 3(b), in James v Australia and New Zealand Banking Group Ltd [2018] NSWCA 41 at per Macfarlan JA (emphasis added): 27 … Mr James submits that the rule against double satisfaction of judgments applies because the judgment was "satisfied" when the Receivers accounted to ANZ in the sense referred to in [24] above. 28 To deal with this submission it is necessary to review the following authorities which establish the existence of the rule against double satisfaction of judgments. 29 In Morris v Robinson (1824) 3 B & C 196; 107 ER 706 the plaintiffs' cargo had been improperly sold in the course of a sea voyage. The plaintiffs obtained judgment against the shipowners for breach of their duty as carriers but the judgment was not satisfied. The plaintiffs then brought an action against the purchasers who had bought the cargo. It was held in that action that the former action did not constitute a bar to it. In so holding, Bayley J said: "If … the plaintiffs were to recover the full value of the goods in each action, a Court of Equity would interfere to prevent them from having a double satisfaction, but there is nothing in the former action which can, in a Court of Law, prevent the recovery in this" (ER at 710). 30 Similarly in United Australia Ltd v Barclays Bank Ltd [1941] AC 1, the House of Lords held that a previous action against the converter of a cheque (in which a final judgment had not been obtained) did not prevent the plaintiffs bringing an action for conversion against the bank which had collected the cheque. As Viscount Simon LC held, for the earlier action to have constituted a bar, "the appellants should have received satisfaction" (at 21). 31 That decision was followed in Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR (NSW) 159, in which this Court held that an action against a tortfeasor was barred as the plaintiff had earlier obtained satisfaction of a judgment against a concurrent tortfeasor who was liable in respect of the same damage. In the words of Asprey JA at 181, "double satisfaction cannot be recovered by a plaintiff in respect of the wrong done to him". 32 In the Registrar-General (New South Wales) v Behn (1981) 148 CLR 562; [1981] HCA 36, the owner of land of which he had fraudulently been deprived obtained a judgment against the transferee. The judgment was not able to be satisfied. The owner was held to be entitled to claim damages from the Registrar General out of the assurance fund constituted under the Real Property Act 1900 (NSW). In so holding, Gibbs CJ observed at 569 that the owner would not be entitled to proceed to execution on both judgments due to the rule against double satisfaction of judgments. 33 In Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 608; [1996] HCA 38, Gummow J cited Morris v Robinson and other authorities for the proposition that "equity would interfere by injunction to restrain the plaintiff receiving double satisfaction upon execution of a plurality of judgments which had been recovered by the plaintiff". 34 In Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; [2001] HCA 66, former clients of a solicitor sued both the solicitor and his employee. They settled their action against the solicitor for $250,000 inclusive of costs and released him from all claims. The High Court held that in the action against the employee, whilst the plaintiff would have to give credit for the $250,000 received from the solicitor, that receipt was not to be treated as having been in full satisfaction of the loss or damage such that it precluded the balance being claimed from the employee. Their Honours confirmed that the rule of double recovery prevents a plaintiff recovering from one or more defendants an amount in excess of its loss (see [39], [57] and [89]). 35 The rule against double recovery was described in similar terms by Gummow J in Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 at [99]. In Tomlinson v Ramsey Food Processing at [27] the plurality described the rule as equitable in origin and one which "prevents a person from actually recovering more than once for a given loss that results from breach of a given obligation". 36 None of these authorities addressed an argument such as Mr James puts in the present case, but their description of the rule against double satisfaction of judgments does not provide any support for the argument. They proceed on the assumption that the rule applies where there are actual payments of the earlier judgment, without suggesting that the rule may extend further. Moreover, Mr James was not able to refer the Court to any authority that supported his argument. … 41 The result is that ANZ is, as it accepts, bound to give credit in its enforcement of the judgment for any actual receipts, whether resulting from realisation of securities or otherwise, but, contrary to Mr James' case, is not obliged to give credit for any notional or hypothetical receipts….
3. Ground 3(b) was concerned with the "possibility" that the respondent would recover the loss twice - "double recovery" - or that he would "profit" from his two applications; one against Mr Murdoch and the present application. Neither of these outcomes would occur if the respondent proved he was unable to enforce the certified money order against Mr Murdoch that he obtained on the same day he lodged this application against the appellant.
4. What is crucial in this case is the finding of the Tribunal that the respondent could only enforce the money order against Mr Murdoch to the amount $356, which we accept was an available finding on the oral evidence. The Appeal Panel finds no issue with the Tribunal making a money order against two different respondents for the applicant to recover the loss or damage he suffered as a result of both respondents' (different) breaches of legal obligations. What Mr Raleigh cannot do is recover or enforce both money orders such that he ultimately receives more than the amount of loss or damage he suffered.
5. Had Mr Raleigh enforced the $10,650 certified money order against Mr Murdoch, the claim against the appellant would necessarily have been dismissed as the loss he claimed against the appellant was the same loss (rectification costs of defective roof work) that he said he suffered because of the appellant's breach.
6. In order to make the further money order (against the appellant) for the same loss, the Tribunal was required to be satisfied Mr Raleigh could not enforce the order against Murdoch. Unless the Tribunal was so satisfied, based on evidence, the earlier proceedings against Murdoch constitute a bar to the proceedings against the appellant: Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR (NSW) 159.
7. Ground 3(a) was that the Tribunal erred by not dismissing Mr Raleigh's application on the basis that the claim against the appellant was an abuse of process. Ground 3(a) is not made out for the reasons explained above.
8. Ground 3(b) was that the Tribunal erred by not dismissing Mr Raleigh's application on the basis that the order requiring the appellant to pay $10,294 gave rise to the possibility of double recovery or the respondent profiting from two applications or money orders. Ground 3(b) is also not made out for the reasons explained above.

Civil Liability Act 2002 (NSW)

1. The appellant raised the issues of proportionate liability and double recovery with the Tribunal. In written submissions dated 17 February 2023 and filed with their evidence before the final hearing in May, the appellant submitted: PROPORTIONATE LIABILITY The applicant initially preceded on the basis that the trades person, Murdoch was the only party who was responsible for the damage the applicant suffered and was legally liable to compensate the applicant for that damage. Those proceedings were brought in NCAT and in NCAT ordered Murdoch pay the applicant the sum of $10,650 by way of damages. It appears that the applicant is now trying to have a second shot presumably because he has been unable to recover $10,650 that ncat or did Murdoch pay the applicant. Whilst the applicant's claim is not clearly stated in the application, it appears that the claim being brought by the applicant against Flemings Property Services Pty Ltd is a claim for economic loss or damage to property in an action for damages arising from a failure to take reasonable care. As such, it is an apportionable claim and under section 34 of the Civil Liability Act 2002. If, in fact, more than one person or company ("concurrent wrongdoer") is responsible for the damage the applicant suffered and Flemings Property Services Pty Ltd serves the applicant with a notice alleging that a person or company other than Flemings property services Pty limited was responsible for the damage the applicant suffered, the tribunal may apportion responsibility for that damage between Flemings Property Services Pty Ltd and the concurrent wrongdoer under section 35 of the Civil Liability Act 2002. Flemings Property Services Pty Ltd has today served such a notice (copy attached) on the applicant alleging that Murdoch was responsible for the damage the applicant suffered. It will be necessary for the tribunal to determine whether Murdoch has a legal liability to the applicant and is responsible for all or part of the applicant's damage. It is the respectful submission of Flemings Property Services Pty Ltd that the tribunal, by ordering Murdoch pay the applicant the sum of $10,650 by way of damages, has already determined that Murdoch has a legal liability to the applicant and is responsible for 100% of the applicants damage. The burden of proving the above to the satisfaction of the tribunal falls to Flemings Property Services Pty Ltd but, again, Flemings Property Services Pty Ltd relies upon the fact that the tribunal has already determined that Murdoch has a legal liability to the applicant and is responsible for 100% of the applicant's damage because of the above it is the further respectful submission of Flemings Property Services Pty Ltd that its liability pursuant to section 35(1) is limited to 0% and that the Tribunal ought not give judgement against it in those circumstances.
2. In the appeal, the appellant relied on these written submissions: We submit that Mr Raleigh should have been precluded from brining [sic] this claim on the basis that he is seeking precisely the same loss as he sought and obtained in proceeding HB 22/45957. by failing to bring his claim against Flemings at the first opportunity (i.e. when he claimed against Mr Murdoch), Mr Raleigh denied Flemings any opportunity to seek to apportion liability with Mr Murdoch, which we would have done given Mr Murdoch 's obvious contribution to the loss claimed. In our submission Mr Raleigh rightly pursued Mr Murdoch in the first instance because he is the wrongdoer and ought to be 100% liable for Mr Raleigh's alleged losses. Further, we submit that the findings against Flemings give rise to the possibility of double recovery and ought to be overturned on that basis. If the Member's finding's [sic] are upheld, Mr Raleigh will concurrently hold two orders requiring two separate payments from different parties for almost the same loss claimed. In our respectful submissions this [is] a powerful factor in support of our appeal.
3. The respondent made no written submissions about Ground 3. The respondent did not make any oral submissions about Ground 3 during the appeal hearing, other than to repeat that he told the Tribunal that he was only able to recover $356 from Mr Murdoch. It must be noted that the respondent obtained the certified money order for the $10,650 against Mr Murdoch on the same day he filed the application the subject of this appeal. At the time of lodging these proceedings against the appellant, the respondent could not have known he would not be able to recover the judgment sum from Mr Murdoch. Between 16 January 2023 when the application against the appellant was lodged, and 23 May 2023 when the Tribunal hearing was held, the Tribunal accepted that only $356 had been recovered from Mr Murdoch and no more would or could be recovered from him. It is not known how the Tribunal made this finding of fact which is at [10] and [19] of the Decision.
4. Sections 34 and 35 of the Civil Liability Act 2002 (NSW) (Civil Liability Act) provide: 34 Application of Part (1) This Part applies to the following claims (apportionable claims) - (a) a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care, but not including any claim arising out of personal injury, (b) a claim for economic loss or damage to property in an action for damages under the Fair Trading Act 1987 for a contravention of section 42 of that Act (as in force before its repeal by the Fair Trading Amendment (Australian Consumer Law) Act 2010) or under the Australian Consumer Law (NSW) for a contravention of section 18 of that Law. (1A) For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind). (2) In this Part, a concurrent wrongdoer, in relation to a claim, is a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim. (3) For the purposes of this Part, apportionable claims are limited to those claims specified in subsection (1). (3A) This Part does not apply to a claim in an action for damages arising from a breach of statutory warranty under Part 2C of the Home Building Act 1989 and brought by a person having the benefit of the statutory warranty. (4) For the purposes of this Part it does not matter that a concurrent wrongdoer is insolvent, is being wound up or has ceased to exist or died. 35 Proportionate liability for apportionable claims (1) In any proceedings involving an apportionable claim - (a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss, and (b) the court may give judgment against the defendant for not more than that amount. (2) If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim - (a) liability for the apportionable claim is to be determined in accordance with the provisions of this Part, and (b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant. (3) In apportioning responsibility between defendants in the proceedings - (a) the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law, and (b) the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings. (4) This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings. (5) A reference in this Part to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Part, under rules of court or otherwise.
5. We note that Pt 4 of the Civil Liability Act, in which ss 34 and 35 appear, did not apply to Mr Raleigh's claim against Mr Murdoch, because Pt 4 does not apply to any action for damages arising from a breach of statutory warranty under Pt 2C of the Home Building Act 1989 (NSW) and brought by a person having the benefit of the statutory warranties.
6. Part 4 did apply to the proceedings under appeal. The Tribunal had already found, in HB 22/45957, that Mr Murdoch was liable for all of the loss Mr Raleigh then claimed against the appellant. The appellant claimed that Mr Murdoch was responsible for 100% of Mr Raleigh's loss and the appellant therefore was responsible for 0% of Mr Raleigh's loss. Sections 34 and 35 of the Civil Liability Act do not prevent the Tribunal from finding the appellant breached its contract with Mr Raleigh and ordering the appellant to compensate Raleigh for that loss which Mr Raleigh has not already recovered from Murdoch.
7. Ground 3(c) is therefore not made out and is dismissed.

Grounds 4 (part) and 5 - breach of contract only and whether suffered loss in connection with the work performed by Mr Murdoch in December 2021

1. These grounds are allegations that the Tribunal made errors of fact. The first alleged error is finding the appellant breached the contract between the parties at all, or specifically by recommending Mr Murdoch to the respondent to do work for the respondent. This ground focuses only on the work done by Mr Murdoch in February 2022 for which Mr Murdoch was directly engaged by the respondent. The second alleged error is the finding that the respondent suffered loss from the work done by Mr Murdoch in December 2021.
2. At the end of the appeal hearing the appellant expressed surprise that the money order made against the appellant, and the Decision, were based on breaches by the engagement of Mr Murdoch in December 2021 in addition to the recommendation of Mr Murdoch in February 2022. This was plain on the face of the application: "I'm seeking an order in the sum of $10650 the total paid to Mr Murdoch [for both the December 2021 works and February 2022 works]". It was also plain from the Decision: at [4], [6], [13(b) and (d)], [16(b) and (d)], [17], [19]. The order itself was the refund of all monies paid by the respondent to Mr Murdoch for both jobs, less the $356 the respondent enforced against Mr Murdoch.
3. None of the appellant's grounds of appeal raised the issue that the Tribunal should not have considered works done by Mr Murdoch in December 2021. None of the grounds claimed the appellant was taken by surprise that there was any allegation of breach arising from the December 2021 recommendation and engagement, and the appellant did not, at the very end of the appeal hearing when this issue arose, ask for leave to amend its Notice of Appeal to add in such a ground.
4. If it had, quite aside from any procedural fairness issues which may have arisen, the ground would have failed because it was obvious since these proceedings began that the respondent was seeking a full refund of all money he paid to Murdoch which meant the respondent was claiming the appellant owed him compensation for breaches arising from the December 2021 engagement as well as the February 2022 recommendation. Furthermore, Ground 5 concerns the findings about the work performed in December 2021, so we do not accept the appellant was taken by surprise that the Decision was based on both jobs. Even if it was taken by surprise, that does not amount to a ground of appeal.
5. Ground 5 squarely raised the work done by Mr Murdoch in December 2021. This ground is that the respondent suffered no loss in connection with the work done in December 2021 and thus the Tribunal erred by ordering the appellant repay the $1,800 that Mr Murdoch received for that work. This is an allegation that there was no evidence upon which the Member could have found the respondent suffered loss from the December 2021 works, which is an allegation that the Tribunal made an error on a question of law, the question being: was there any evidence to support the finding of fact? If the ground is that the finding is against the weight of the evidence, as opposed to being based on no evidence, it is a ground which requires the leave of the Appeal Panel.
6. We would not grant leave in respect of that ground.
7. The evidence the Tribunal referred to in the Decision (at [8] and [9]) was the report of Mr Mark Ward who the Tribunal accepted had inspected "all repair works done by [Mr] Murdoch": at [8], (emphasis added).
8. Mr Ward's report was provided to the Appeal Panel by both parties. In both parties' evidence the report ends after the photographs numbered one to six. Neither version, which are identical, include the annexures referred to within the report listed on page 28 under the heading "6. Documentation Relied On". These annexures included the quotation from Mr Murdoch dated 15 February 2022, invoices dated 12 April and 24 May 2022. None of the annexures were before the Tribunal.
9. The quotation provided by Mr Murdoch directly to the respondent apparently dated 15 February 2022 is not in evidence. The two invoices apparently dated 12 April and 24 May 2022 are not in evidence but Mr Ward described their contents in his report at pars 5.7 and 5.8: see below.
10. A handwritten "tax invoice/ statement" from Mr Murdoch to the appellant is in evidence and shows (appellant p 54; respondent p 42-48): 1. The date it was issued was 22 December 2021; 2. The cost of the invoiced work was $1,800 which included "labour & materials"; 3. The description of work done was: 1. "roof repairs" 2. "rebedding" 3. "repointing" 4. "repair leaks"
11. The salient points of Mr Ward's report include: 1. Mr Ward conducted his inspection on 3 November 2022 and wrote the report on 7 November 2022 (p 25); 2. The instructions were to "Investigate the repair to the tiled roof and comment on any compliance issues and standard of workmanship. Also, determine if the works quoted for have been completed." (p 26, par 1.1); 3. Under the heading "Background" Mr Ward wrote that he had discussions with the respondent that formed the basis of the background information relevant to the claim which were, relevantly (p 27ff): 1. "27/11/2021 - Tenant … contacted Flemings Property Services to let them know there was a roof leak. [Murdoch] Was asked to attend and make safe/ quote repairs - Landlord notified" (par 5.2); 2. "07/12/2021 - [Murdoch] provided a quote for $1800.00 to repair the leak to owners property- quote approved" (par 5.3); 3. "22/12/2021 - Quotes works [sic] completed" (par 5.4); 4. "10/02/2022 - landlord engaged insurance to assess roof damage from storm - asked for recommendation for someone to assess the damage - Flemings Property Services referred Wayne [Murdoch] to assist the damage" (par 5.5); 5. "15/02/2022 - Quote received from [Murdoch] for repairs to roof. Please see annexure "B". The quotation is for an amount of $8,850.00" (para 5.6) [this quotation is not in evidence] 1. In paragraph 5.7 Mr Ward described an invoice dated 12 April 2022, which does not appear to be in evidence, that the respondent received from Murdoch "for 50% of the completed works being: 1. Rebedding; 2. Repointing; 3. Repair leaks"; 1. In paragraph 5.8 Mr Ward described a second invoice dated 24 May 2022, which does not appear to be in evidence, that the respondent received from Murdoch "for remaining 50% of quotation with the stated works as being: 1. Rebed roof tiles;; 2. Repoint roof tiles; 3. Clean and repair gutters; 4. Waterproof gutters and valleys; 5. Treat and remove asbestos (Hired qualified trade)"; 1. Under the heading "Observations" Mr Ward "noted" 1. "During my inspection of the works completed to the property I can only identify the re-bedding of the ridge and hip capping tiles and approximately 20 roof tiles." (para 7.4) 2. "In relation to Annexure "B" there is no evidence to suggest the following have been completed and charged for in relation to annexure "C" and annexure "D". [There are no Annexures attached to Mr Ward's report in evidence before the Appeal Panel or the Tribunal]: 1. "7.5.1 pressure clean all areas; 2. 7.5.2 clean and repair all gutters/downpipes; 3. 7.5.3 waterproof gutters and valleys; 4. 7. 5.4 prime coat all tiles; 5. 7.5.5 apply 2 x top coats of membrane; 6. 7.5.6 colours as per spec; 7. seven point 5.7 paint all gutters and downpipes." 1. "In relation to the works completed, being the re-bedding and pointing of the capping tiles I make the following comments" (para 7.6): 1. "7.6.1 the capping tiles have not been laid in a straight line. 2. 7.6.2 the bedding cement has been coloured and has not been installed evenly and is not neat in appearance. 3. 7.6.3 there is coloured mortar splattered onto the adjacent tiles. 4. 7.6.4 Typically, capping tiles are bedded with a cement mortar and then a flexible pointing compound is installed over the bedding mortar as per the requirement of AS2050- 2002 Roof Tiles - Installation." 1. Under the heading "8. Opinions/ Summary" Mr ward wrote "The completed works have not been carried out in accordance with the NSW Guide to Standard and Tolerances 2017, Part 6 roofing" and "The completed works have not been carried out in accordance with AS2050- 2002 Roof Tiles - Installation, Part 3.6 Workmanship". "Furthermore, the quoted works and subsequently invoiced works that have been paid, have not been completed as per the detailed description": (par 8.3). Based on the defective works completed to the roof and in my professional opinion, the costs to remove and replace the capping tiles to the roof and to remove and replace the concrete stained tiles adjacent to the capping tiles is estimated to be approximately $8,500.00" (para 8.7). "No part of the works completed by Mr Wayne Mark Murdoch are salvageable and will require complete replacement" (par 8.8).
12. Mr Ward's report contained analysis of all work done by Murdoch for the respondent in December 2021 and early 2022. The appellant's claim that there is no evidence upon which the Member could have found the respondent suffered loss in connection with the work performed by Murdoch in December 2021 fails.
13. The 22 December 2021 tax invoice described the works done by Murdoch as including "roof repairs, rebedding, repointing and repair leaks": page 42 of 48. In para 7.4 Mr Ward said he could "only identify the re-bedding of the ridge and hip capping tiles and approximately 20 roof tiles". This could relate to the works done in December 2021 or it may be the works done in April or May 2022 (see description of invoiced works in para 5.7 and 5.8).
14. What is clearer is that Mr Ward's report was considering the works done by Murdoch in December 2021 as well as early 2022: see 5.2, 5.3, 8.1, 8.2, 8.3, 8.7, 8.8. Mr Ward concluded that "No part of the works completed by Mr Wayne Mark Murdoch are salvageable and will require complete replacement". The "works completed" must include those carried out in December 2021 as well as early 2022.
15. The appellant submitted that it can prove the works done in December 2021 were not defective but such submissions needed to have been made to the Tribunal and not to the Appeal Panel for the first time. Further it is not known what evidence, if any, the appellant relies upon to prove Mr Ward's report only goes to defects in the 2022 works and not the December 2021 works. These are matters which the appellant would have needed to cross-examine Mr Ward about and potentially the respondent too, before the submission could be made.
16. Ground 5, to the extent it raises an error on a question of law, is dismissed. To the extent it raises an error of fact, leave has not been sought and We do not consider it appropriate to grant leave.
17. As to the parts of Ground 4 which allege the Tribunal erred by finding the appellant breached the Agency Agreement at all or specially by recommending Mr Murdoch in February 2022, the Appeal Panel cannot accept this is a ground that raises an error on a question of law. There is clearly evidence before the Tribunal set out in the Decision at [11], [13], [14] and [15] that could be used to establish the appellant breached the contract it had with the respondent by engaging and recommending a tradesperson who was not licensed (and did roofing work of very poor quality). To the extent this ground required leave, leave was not sought and we do not consider it appropriate to grant leave..

Conclusion

1. Grounds 1, and 2 have been made out, whereas grounds 3, 4, 5 and 6 have been dismissed.
2. The Appeal Panel asked both parties what they wanted the Appeal Panel to do with the appeal should the appeal be allowed. Both parties asked that the Appeal Panel redetermine the matter on the evidence and submissions before it. This stance is understandable given the fairly modest amount in dispute. To ask these parties to have a third in-person hearing (on top of several virtual hearings) especially given the appellant is rurally located, would not be proximate to the amount in dispute.
3. It is our view that it is in keeping with the guiding principle for the just, quick and cheap resolution of the issues in dispute (NCAT Act, s 36(1)), that the Appeal Panel redetermine the claim between the parties on the basis of evidence and submissions filed in this Appeal which were also filed before the Tribunal.
4. The Appeal Panel considers this is the most appropriate procedure to adopt.
5. The Appeal Panel allows the appeal as Grounds 1 and 2 are made out. Grounds 1 and 2 found that the appellant was denied procedural fairness.

Redetermination of the matter

1. The Appeal Panel does not disturb the Tribunal's findings about breach of contract, particularly at [14] and [15]. This is that the appellant breached the agency agreement (contract) by engaging an unlicensed, unqualified tradesperson to do work for the respondent in December 2021 and also by recommending that same unlicensed, unqualified tradesperson in February 2022.
2. The Appeal Panel will not consider breach of s 60 of the ACL as the appellant had insufficient notice that this was part of the respondent's claim and it was not entirely clear (see transcript excerpt 10, p.7, from 44 mins) that the respondent adopted s 60 as a cause of action. The Appeal Panel declines to allow the respondent to amend his claim to allege a breach of s 60 of the ACL in addition to breach of contract, a breach of the Property Stock and Station Agent Regulation 2014 (NSW) or a breach of s 18 of the ACL.
3. The Appeal Panel agrees with the Tribunal at [18] that the conduct of the appellant did not amount to a breach of s 18 of the ACL and confirms the dismissal of this part of the respondent's claim.
4. Having found breach of contract the Appeal Panel then needs to consider what compensation, if any, to award the respondent.
5. The respondent claimed that the cost of rectifying Murdoch's poor quality and incomplete work is the loss or damage he suffered from the appellant recommending and/or engaging Murdoch to do the roof repairs.
6. The Tribunal was correct at 35 mins 50 seconds when it summarised the measure of damages in a breach of contract case as follows: Member: Now what about the expert report that says the estimate is $8,500 why isn't… um… hang on… cause with compensation claims the general principle is that you're restored to the position that you would have been in if there'd been no… Raleigh: I believe that's an error… Member: You can't just change an expert report. He's [Ward] not talking about a refund. See there is a difference… like when you buy something to get a refund is what you paid for it… like say you had a fridge and it didn't work and you returned it you would get a refund. Compensation for this is different because there is material and workmanship and you can't return that because it is there sitting on your property. So the law of compensation is that you would be restored to a position that you would have been in if the breach wouldn't have occurred. In this case, you are saying it's the agents' breach. But you're saying that the loss arises out of Murdoch's activities…. your expert report is saying states that to get it all fixed, so if Murdoch had done his job properly, it's going to cost $8,500.
7. The Tribunal, and now the Appeal Panel, must attempt to put the respondent in the position he would have been had the appellant not recommended an unlicensed tradesperson to undertake the roof repairs. The assumption, that the Tribunal accepted, was that had the appellant not recommended (and in December 2021 engaged) Mr Murdoch then the respondent would not have engaged Mr Murdoch, would not have paid Mr Murdoch $10,650 and would not now be required to undertake approximately $8,500 of repair works (Ward report, par 8.7).
8. In fact, the respondent suffered this loss because the unlicensed tradesperson (Mr Murdoch) did defective works. The respondent needs to establish a casual link between the appellant's recommendation and the loss the respondent says he has suffered. The engagement and recommendation of a licensed roof repairer does not guarantee the work will be perfect, but this is the basis of the respondent's claim for damages; that had the appellant recommended an appropriately licensed roof repairer the repairs would have been performed to an appropriate standard and there would not need to be a further $8,500 worth of repairs (approximately).

Consideration of damages for breach of contract

1. The Appeal Panel must be satisfied that the appellant's breaches of contract, by recommending an unlicensed tradesperson to do roofing work at the respondent's investment property, caused the respondent to suffer loss.
2. The Appeal Panel accepts that the poor quality of the work performed by Mr Murdoch has caused the respondent to suffer loss in the amount of (approximately) $8,500 which is the amount the respondent will have to spend to rectify the defective work. The Appeal Panel must be satisfied the appellant caused the respondent to suffer this loss by recommending Mr Murdoch who was then unlicensed for the work he performed at the respondent's investment property.
3. There is no direct evidence from the respondent that states he would not have engaged Mr Murdoch to do the roofing work had the appellant not recommended him, or that he would not have engaged Murdoch if he was aware Murdoch was not licensed. However,the Appeal Panel considers it is reasonably open to it to infer that the reason the respondent engaged Mr Murdoch was because of the appellant's two recommendations to do so and that he would not have done so if he was aware Mr Murdoch was not licensed, for example considering what the respondent wrote in his statutory declaration on pp 34 and 35 which was before the Tribunal. The respondent was not cross-examined by the appellant and the respondent submitted in his written submissions to the Tribunal that: Fleming Property Service failed to exercise reasonable care. This was demonstrated from the recommendation for the use of Mr Murdoch as a provider of trade services on my property. Fleming Property Service had the obligation to Verify and Check [sic] that Mr Murdoch had a current ABN and License… I am seeking a claim for the loss that I have suffered from Flemings Property Service recommending and arranging work to my property by someone that has not got a licence or the necessary qualification to complete the recommended work. This is a breach of contract between me and Fleming Property Service by Fleming Property Service. It is this breach that has caused economic loss to me in the amount claimed which is the full amount that I have paid to Mr Murdoch of $10,841.00…
4. The appellant did not submit that the respondent would have engaged Mr Murdoch even if they had not recommended him nor did they submit the respondent would have engaged Mr Murdoch if the respondent knew Mr Murdoch was not appropriately licensed.
5. The Appeal Panel accepts that the only reason the respondent engaged Mr Murdoch on both occasions was because Mr Murdoch was recommended to him by the appellant and that the respondent would not have engaged Mr Murdoch if he knew Mr Murdoch were unlicensed to perform the required work on the respondent's investment property.
6. The loss that the respondent suffered, namely the costs to make good the poor quality work performed by Murdoch, was caused by the appellant's recommendation of Mr Murdoch, a person not licensed to perform the required repair work.
7. The next question is how much loss the respondent suffered as a result of the appellant's breach of contract.
8. The principles for the assessment of damages for breach of contract were recently summarised in Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 at [41]-[42] per Black J: [41] The damages to which RBD is entitled, in respect of Mr Sabouni's breach of or repudiation of the Contract is the monetary sum which, so far as money can, represents "fair and adequate compensation for the loss or injury" which it sustained by reason of that breach or repudiation: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 116 per Deane J. The Court must do the best it can to make a reliable assessment of damages, where damages are difficult to assess, including where a party has failed to lead the best evidence of damages: Commonwealth of Australia v Amann Aviation Pty Ltd above at 83, per Mason CJ and Dawson J, 125 per Deane J, 153 per Gaudron J. In Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 at [135], Beazley JA observed that: "Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat the only remedy it provides for breach of contract, an award of damages … . Such damages should not be nominal only, notwithstanding that the award may be difficult to assess. …" (Citations omitted) [42] On the other hand, the case law also recognises that damages must be proved with a degree of precision which reflects the proof that is reasonably available to the parties: State of New South Wales v Moss (2000) 54 NSWLR 536 at [72]; Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768 at [38]. In Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 319, Pincus J noted that "if the evidence called on behalf of [the plaintiff] fails to provide any rational foundation for a proper estimate of damages, the Court should simply decline to make one". That approach was approved by Brooking J in JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 at 243 and by the Court of Appeal in Troulis v Vamvoukakis [1998] NSWCA 237 where Gleeson CJ observed that, where damages were susceptible of evidentiary proof, but there was an absence of raw material to which good sense may be applied, "[j]ustice does not dictate that … a figure should be plucked out of the air". That decision has been approved in subsequent cases, including McCrohan v Harith [2010] NSWCA 67 at [128], where McColl JA (with whom Campbell JA and Handley AJA agreed) held that an estimate of damages, in the nature of a "guess", should not be made where precise evidence of the damages suffered could have been adduced, but was not. I followed that decision in Re Hair Industrie Penrith Pty Ltd, Hair Industrie Merrylands Pty Ltd [2015] NSWSC 1578 at [20], on which I have drawn for the summary which appears above.
9. There are also important principles which concern mitigation of loss. In The Owners - Strata Plan No 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067 Ball J explained at [42]: Generally speaking, a person who suffers loss as a consequence of a breach of contract is required to act reasonably in relation to that loss in order for the loss to be recoverable. An important aspect of this general principle is that the party who has suffered a loss is under a duty to mitigate its loss. Sometimes the use of the word "duty" in this context is criticised, since there is no requirement that the plaintiff act in a particular way and no requirement that the plaintiff minimise its loss: see, e.g., J Carter, E Peden and GJ Tolhurst, Contract Law in Australia, (5th ed, 2007, LexisNexis) at [35-35]. Rather, the principle is that the plaintiff is not entitled to recover losses attributable to its own unreasonable conduct. As O'Connor J explained in Hasell v Bagot, Shakes & Lewis Ltd [1911] HCA 62; (1911) 13 CLR 374 at 388: 'One of the principles on which damages are assessed [is] that a party to an agreement suffering injury from the other party's breach of its terms is bound to exercise reasonable care in mitigating the injurious consequences of the breach, and is not entitled to recover from the party in default any damage which the exercise of reasonable care on his part would have prevented from arising.
10. The Appeal Panel frequently considers the duty to mitigate loss. For example, the Appeal Panel explained in Perkins v Barraket [2016] NSWCATAP 66 at [41]ff that: 41 It is well established that damages cannot be recovered for any loss which could have been prevented by reasonable mitigation action of the injured party (para 23.41 Cheshire and Fifoot 9th Edition). A loss which is attributable to the failure to mitigate can be regarded as an aspect of causation (Castle Constructions Pty Ltd v Fekula Pty Ltd [2006] NSWCA 133 at [21]). 42 In other words, it is necessary for the tenants to establish that the expense they incurred was caused by the landlord's breach and to the extent that they failed to mitigate and that failure (and the additional expense they incurred) resulted in a level of expense not caused by the breach, such expense was not causative of their loss. … 44 The tenants submitted that because the landlord had not discharged the onus of proof to show that the tenants had not acted reasonably the Tribunal should accept the loss they incurred as appropriate compensation flowing from the breach. In our view this submission must be rejected. The expense incurred must flow naturally from the breach. If that appears to be the case then the onus may shift to the other party as stated by Giles JA in Karacominakis v Big Country Developments Pty Ltd. 45 The approach described above has support from Priestley JA in TCN Channel 9 v Hayden Enterprises ((1989) 16 NSWLR 130 at 162) where his Honour said that a "plaintiff must prove what damage it is that flowed from the defendant's breach, and that, if it appears that the plaintiff is seeking to include in his damages losses which he would not have incurred had he acted reasonably in the ordinary course of business following the breach of contract then he has not shown that such "losses" were a result of the breach; hence, he is not entitled to make the defendant liable for them".
11. The respondent's evidence of loss is contained in Mr Ward's report at pars 8.7 and 8.8:. Acting reasonably, the respondent would have engaged an appropriately qualified roofer "to remove and replace the capping tiles to the roof and remove and replace the concrete stained tiles adjacent to the capping tiles" for the estimated cost of $8,500 in early November 2022 when that recommendation was made: par 8.7.
12. Paragraph 8.8 which states "No part of the works completed by Mr Wayne Mark Murdoch are salvageable and will require complete replacement" is inconsistent with Mr Ward's "professional opinion" in par 8.7 that the cost to rectify the defective works is approximately $8,500.
13. It may be that the Tribunal, as well as perhaps the Senior Member who decided the case against Mr Murdoch, considered par 8.8 sufficient to find a complete failure of performance by Murdoch such that the respondent should be awarded a full refund of all monies the respondent paid to Murdoch. We do not agree. The respondent is entitled, in respect of the appellant's breach of contract, to the monetary sum which, so far as money can, represents "fair and adequate compensation for the loss or injury" which it sustained by reason of that breach. Fair and adequate compensation in this case is the cost to repair the defective works performed by Murdoch, who was recommended by the appellant.
14. We cannot reconcile pars 8.7 and 8.8 in a way which entitles the respondent to more. We do not accept there was a complete failure to perform by Murdoch, which would have occurred if he had been paid and never attended the respondent's investment property and never did any work at all. Then the respondent would be entitled to a full refund of monies paid. That is not the measure of damages when work was performed, even by an unlicensed person. It is the fair and adequate monetary sum to put the respondent in the position he would have been had the appellant not recommended Murdoch who the respondent then used and who did defective roofing work.
15. We consider $8,500 is sufficient compensation for the loss.
16. The respondent had obtained, on the same day he lodged this application against the appellant, a certified money order for more than $8,500 against Mr Murdoch. In order to be satisfied the respondent is not breaching the rule against double satisfaction of judgments, the Appeal Panel requires evidence that the respondent cannot - and has not - obtained more than $356 from Murdoch. We accept the respondent's oral evidence to the Tribunal, which was not contested, that the respondent could only enforce the money order against Mr Murdoch to the amount of $356. This amount must necessarily be reduced by the compensation we award the respondent which is $8,500. Therefore, the respondent is entitled to $8,144 from the appellant.
17. In fact, the appellant has paid the respondent $10,294 in satisfaction of the Decision. This is $2,150 more than the respondent ought to have been paid according to our redetermination of the claim. The respondent must therefore repay this amount to the appellant.

Costs

1. After the Appeal Panel made directions to the parties on 29 June 2023 it made several "Notes" under paragraph 7. The note that appears at 7(2) was: If any party wishes to make an application for costs of the appeal, that party is to lodge with the Appeal Registry and give to the other party any submissions on costs at the same time as their submissions in relation to the appeal.
2. Neither party has made an application for costs. This is unsurprising as s 60 of the NCAT Act clearly states "Each party to proceedings in the Tribunal is to pay the party's own costs." In any event, this appeal has been partly successful and partly unsuccessful, so it is appropriate to order that each party pay their own costs.

Orders

1. For the above reasons, the Appeal Panel orders: 1. In relation to the ground of appeal that the Tribunal erred in considering s 60 of the ACL, the appeal is allowed. 2. Leave to appeal is refused. 3. The appeal is otherwise dismissed. 4. Pursuant to s 81 of the Civil and Administrative Tribunal Act 2023 (NSW), in substitution for the orders of the Tribunal of 24 May 2023 in COM 23/02154, the Appeal Panel: 1. varies Order 1 so as to read: "The respondent FLEMINGS PROPERTY SERVICES PTY LTD is to pay the applicant WILLIAM RALEIGH of the sum of $8,144 by 6 June 2024"; 2. orders the respondent to immediately pay the appellant $2,150. 1. Each party is to pay their own costs of the appeal.

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

Amendments 06 November 2023 - Paragraph 29 changed it's to its 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: 06 November 2023