Iliffe v Onsite Trade Services Pty Ltd [2025] NSWCATCD 48;

1. The applicant resides in residential premises in Annandale, NSW. On 23 September 2021, the applicant had a blocked sewer. She conducted searches on Google and contacted PlumbCorp to book a jet blast.
2. Later that day, the applicant received an email from PlumbCorp which confirmed her booking for 24 September 2021 and noted that PlumbCorp "is owned and operated by Onsite Trade Services Pty Ltd". The Tribunal notes that that statement reflects the Australian Business Number provided on each of the quotes and invoices provided to the applicant. In naming the respondent, the application includes references to a number of business names. To avoid any confusion, the Tribunal will make an order that the name of the respondent be amended to Onsite Trade Services Pty Ltd.
3. A plumber from the respondent arrived the following morning and provide an oral quote to the applicant. That oral quote was followed by an email sent at 8.06am, attaching a quote in the sum of $1,057.32 for the following work:

WORK TO BE CARRIED OUT:

Arrived on site and found customer has a blocked Sewer service, in order to rectify the issue the following must be completed

JET BLAST & CCTV CAMERA COMBO

Set out high water pressure hoses on site

Set out high power jet blast on site

Conduct a high water jet blast

Flush out blockage on first attempt

Conduct a CCTV camera inspection

Search and investigation sewer service

Test and commission

NOTE IF BLOCKAGE DOES NOT CLEAR OR FURTHER WORK REQUIRED FURTHER COST WILL APPLY

1. The applicant accepted the quote and the plumber completed the jet blast.
2. Upon completion the plumber stated to the applicant "the sewer can't be cleared and you need urgent work done. You need a 2 metre reline to fix the blockage and the cost will be approximately $16,000". The applicant stated "That's too expensive. I don't have the funds to cover the cost". The plumber then stated "it's standard price to clear the sewer line".
3. The plumber further stated "If you make a decision I can book the job today" and "if you decide to proceed old deduct the cost of the jet blast". The plumber further informed the applicant that he could organise finance.
4. At 9.38am on 24 September 2021, the applicant received a further quote from the respondent for "SEWER RELINE UP TO 2-METERS". The total sum of the invoice, including the credit for the previous jet blast, was $15,036.78. The applicant paid $1,503.67, leaving an outstanding balance of $13,533.11.
5. The plumber asked for personal details from the applicant and submitted a finance application to Brighte Capital Pty Ltd (Brighte). At 9.52am, the applicant received an email from Brighte confirming receipt of the application. At 10.24am, the applicant received an email from Brighte communicating conditional approval of her application.
6. Later on 24 September 2021, two different plumbers from the respondent attended at the Annandale premises to conduct the pipe reline (Works). At 3.00pm on 24 September, the applicant received an email from the respondent attaching an invoice for the Works in the quoted sum of $15,036.78 with an outstanding balance of $13,533.11.
7. On 6 October 2021, Brighte send an email to the applicant noting that the respondent had completed the Works and Brighte would pay the respondent the outstanding sum of $13,533.11. That email also set out the applicant's obligation to make 52 fortnightly instalment payments.
8. My email to the applicant sent on 7 October 2021, the respondent confirmed full payment of its previous invoice.
9. The applicant discharged her liability to Brighte arising from the Works in or about June 2024.
10. During the intervening period, the applicant experienced a number of sewer issues. However, in July 2024 the applicant experienced a completely blocked sewer line with no access to toilets, shower, or washing machine. The use of any tap in the premises caused immediate flooding through the bathroom floor drain located immediately above where the Works had been conducted.
11. It is useful to set out the exact terms of the applicants evidence of what took place on 17 July 2024:

On 17/07/24 I contacted a local plumbing company - Pipe Perfection / Ruttley Services Plumbing & Electrical. They completed a jet blast which cleared the drain. They said, "the sewer is clear, but we recommend you complete further work to fix the problem," "We recommend are line of the pipes and the existing piece of reline will need to be redone." I said "I've just finished paying off the previous plumbing work." They said, "how much did you pay." I said, "it was over $10,000." They said, "we charge $5,500 for a 2 metre reline."

1. On 31 July 2024, Ruttley Services provided the applicant with an invoice in the sum of $15,850.67 (inclusive of GST) for the 12 metre reline (Ruttley Works). By no later than 5 August 2024, the Ruttley Works were complete.
2. On 28 October 2024, Ruttley Services provided a report to the applicant which relevantly stated:

Issue:

You reported a recurring sewer blockage, which has been a source of ongoing frustration due to similar issues occurring in the past.

Investigation:

Upon our arrival, we conducted a thorough investigation using CCTV and jet blasting techniques. This examination revealed multiple root infestations within the sewer line, indicating A persistent problem that required immediate attention.

Solution:

to effectively address the root infestations and minimise further disruption, we decided to implement pipe relining. This method allows us to repair the existing pipe without the need for extensive excavation, reducing the overall impact on your property.

Additional Work:

as part of the relining process, we carefully removed the toilet to facilitate access. We also excavated and modified the pipework beneath the deck to ensure proper access to the affected areas. This step was crucial for the successful relining of the sewer pipe.

1. The Applicant seeks reimbursement of the full amount she paid to the respondent on the following basis:

I was subjected to misleading and deceptive business practises, hard sell, and pressure to make a decision in a rush. I was shown quotes on an iPad where the full quote could not be viewed. The quotes and invoices I received by email were not itemised. The plumber overcharged at three times the standard market rate to complete the 2 metre reline. The work completed did not rectify the sewer line problem and as such was a temporary measure. I have paid for further plumbing work to rectify the problem.

1. By the "Respondent's Submissions", the respondent sets out its version of the events that took place on 24 September 2021. The respondent repeats on a number of occasions that the applicant raised no objections or questions to the cost of the Works or to the Works themselves.
2. Critically, there is no evidence from the plumber in question. Further, there is no evidence that the plumber in question did not state to the applicant that the sum of about $16,000 was the "standard price to clear the sewer line". The applicant's evidence in that respect stands uncontradicted.
3. The closest the "Respondent's Submissions" come to addressing that evidence is the following passage:

30. There is no evidence that the applicant was misled, coerced or unduly influenced in any way or that the plumber engaged in any positive conduct (i.e. fraud, duress) to induce the applicant to enter into the contract.

31. The applicant has not adduced any credible evidence that the respondent has committed breaches of section 18 of the Australian Consumer Law. The applicant has arrived at these conclusions on the basis that she was able to obtain more competitive and affordable pricing for herself after she had:

a. Being provided with two quotations for the completion of the works;

b. Did not seek to negotiate the price of those works;

c. Was afforded the opportunity to decline the works on each occasion;

d. Freely and voluntarily authorised the respondent to complete the works.

1. Much of the balance of the "Respondent's Submissions" deal with matters that appear to be wholly irrelevant to the applicant's claim, including the terms of the contract between the parties and the Contracts Review Act 1980 (NSW). No claim in the latter respect is raised by the applicant. It appears that the "Respondent's Submissions" have been cobbled together from other submissions made on claims without sufficient attention to the particular matters the subject of the present claim.
2. The respondent referred to and annexed three previous decisions of the Tribunal on claims brought against the respondent with what the respondent submitted was a "similar factual matrix". Those decisions do not appear to address a representation of the nature described at [26] above and are of limited assistance.
3. The respondent further submits that:

42. The applicant's contentions that the works carried out by the respondent are defective must be rejected.

43. The applicant has not provided any evidence outside of bare assertions that the works completed by the respondent were defective.

1. The respondent relevantly concludes its submissions in the following terms:

50. The application is without merit and is nothing more than a disgruntled consumer realising that she could have obtained services of a similar nature to those provided by the respondent at a cheaper cost.

51. The fact that other service providers may provide services at a cheaper rate does not permit the applicant to avoid an otherwise binding agreement that she entered into freely and voluntarily.

1. The Tribunal has jurisdiction to hear and determine this matter under Part 6A of the Fair Trading Act 1987 (NSW) (sections 79I and 79J) as an order is sought that requires the respondent to pay a specified sum of money under s 79E(1)(a).
2. The applicant is a consumer pursuant to section 79D. The respondent is a supplier of services on the basis that it supplied the Works in the course of carrying on a business: sections 79D and 79G.
3. The Works were supplied in NSW: section 79K(1)(a). The application has been made to the Tribunal within the three-year time limit required by section 79L(1)(a). The claim falls within the monetary limit on the Tribunal's jurisdiction: subsection 79S.
4. Section 28 of the Fair Trading Act applies the text of the Australian Consumer Law (ACL), as it exists from time to time, as a law of New South Wales.
5. Section 18 of the ACL provides that a person must not, in trade or commerce, engaging conduct that is misleading or deceptive or is likely to mislead or deceive.
6. The Appeal Panel considered the test for false and misleading conduct in Forbes v Wan [2020] NSWCATAP 129 at [70]:

In Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 at [24]- [33] the High Court said that in considering whether the facts of a case disclosed misleading or deceptive conduct, a two-step analysis is required. The first step involves asking whether facts establish the conduct pleaded. The second step involves asking whether, as a question of fact, the conduct is false, misleading or deceptive or likely to mislead or deceive. It is necessary to have regard to the context in which the representation was made and to the relevant surrounding facts and circumstances.

1. A person who suffers loss or damage by reason of a breach of s 18 may recover damages for loss caused by the misleading conduct under s 236 of the ACL.
2. The onus of establishing her claim rested with the applicant. An applicant is obliged to establish a claim on the civil standard, that is on the balance of probabilities. The relevant principles in relation to discharging the burden of proof in civil cases were summarised by McDougall J (with whom McColl and Bell JJA agreed) in the Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55]:

(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;

(2) where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact's existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;

(3) where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and

(4) a rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.

1. To the extent that a case is advanced by the applicant that the Works were, in and of themselves, defective, the Tribunal rejects that case, substantially for the reasons given by the respondent and set out at [30] above.
2. Further, in her reply submissions lodged on 10 February 2025, the applicant submitted that her misleading or deceptive conduct case did not just relate to the business practices of the respondent (to which the Tribunal will come shortly) but to "the fact that the 2nd lot of plumbing work ($16,094.10) was stated to be a long-term and permanent solution for the sewer line, and that this justified the high cost to complete the work". The Tribunal cannot locate how the application was put in that precise manner in the documents provided to the Tribunal and the respondent on 31 October 2024. The Tribunal considers that, as a matter of procedural fairness, such matter should not be raised in reply submissions with the respondent having no opportunity to reply. Further, and in any event, the tribunal does not consider that the evidence adduced by the applicant sufficiently supports that allegation.
3. However, the Tribunal is comfortably satisfied on the basis of the applicant's uncontradicted evidence that the plumber employed by the respondent represented to the applicant that the sum of $16,000 or thereabouts was "standard price" for the Works, being the 2 metre reline of the sewer. Not only is the evidence, given by way of the applicant's statement, uncontradicted, but the Tribunal had the opportunity to observe the applicant during the hearing and put matters to her while she was subject to an oath. The Tribunal formed the opinion that the applicant was a witness of truth. The totality of the evidence produced an actual persuasion that the representation was in fact made. Further, although the respondent purported, by the "Respondent's Submissions" to adduce evidence of what happened on the day in question and it may therefore be inferred that the respondent was able to adduce direct evidence from the plumber in question, such evidence was not adduced. The available inference is that the evidence of the plumber would not have assisted the respondent's case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. Although it is not determinative in circumstances where the Tribunal is otherwise satisfied on the basis of the uncontradicted evidence of the applicant, the Tribunal does draw that inference.
4. The representation was made by a tradesperson in the relevant industry.
5. Having regard to the following matters, the Tribunal is comfortably satisfied that the representation was misleading or deceptive:

(1) Ruttley Services provided the Ruttley Works to the applicant, being a 12 metre reline (six times the length of the Works) for the sum of $15,850.67 (inclusive of GST), being only slightly more than the sum charged and paid for the Works; and

(2) the uncontradicted evidence of the applicant that she was informed by Ruttley Services that they would charge $5,500 for a 2 metre reline.

1. Having regard to the rank disparity between what was charged by the respondent for the Works and the uncontradicted evidence as to the sum for which such works could otherwise have been obtained, there is no basis to be satisfied that the representation made by the plumber was an honest opinion held on rational grounds: see Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 at [10].
2. The Tribunal is satisfied, based on the evidence as a whole, that the applicant relied upon the representation made in deciding to instruct the respondent to undertake the Works and thereby to incur a substantial liability to the respondent (and then to Brighte).
3. Having regard to the above, the Tribunal is satisfied that the applicant suffered loss as a consequence of the respondent's contravention of s 18 of the ACL. The applicant is entitled to compensation for such loss and damage. As set out at [24] above, the applicant seeks reimbursement of the full amount she paid to the respondent.
4. The first thing to say about that submission is that there is no basis to order a refund to the applicant of the sum that she paid to the respondent attributable to the jet blast conducted before the Works, being the amount of $1,057.32.
5. As to the balance of the sum paid to the respondent, the Tribunal is not satisfied that there is a causal connection between the misleading conduct and the engagement of the respondent to conduct the Works at all. Rather, the Tribunal is satisfied that there is a causal connection between the misleading conduct and the decision of the applicant to engage the respondent at the price quoted which led the applicant to incur substantially more than she would have had the respondent, by the plumber in question, not misrepresented to the applicant that the amount proposed to be charged was "standard price".
6. The Tribunal accepts the evidence adduced by the applicant that the "standard price" for the Works was in fact $5,500 or thereabouts. Therefore, the measure of the applicant's loss or damage was the difference between $15,036.78 and $5,500, being $9,536.78.
7. For the above reasons, the Tribunal will make an order that the respondent pay the applicant the sum of $9,536.78 immediately.

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.