Panagiotonakos v Abergeldie Rehabilitation Pty Ltd

Procedural Background regarding Respondents

1. The proceedings were commenced against "Abergeldie Complex Infrastructure". The name "Abergeldie Complex Infrastructure" is not a description for a legal entity. By letter dated 18 March 2022, the day after the application was filed, the Tribunal requested that the applicant provide an ASIC company extract or business name search in respect of the named respondent.
2. The Tribunal also notified the parties of a directions hearing to be held on 11 April 2022.
3. In April 2022 the applicant advised the Tribunal that he sought an adjournment of a directions hearing because he was undergoing medical treatment. The ASIC company extract or business name search requested by the Tribunal were not provided by the applicant.
4. A directions hearing was held on 11 April 2022. Mr McBride, general counsel for the Abergeldie group of companies appeared on that occasion. He advised the Tribunal that the correct respondent should be Abergeldie Rehabilitation Pty Ltd. That entity was joined as a respondent to the proceedings. 'Abergeldie Complex Infrastructure' remained named as a respondent although the precise legal entity to which that name is attributable has not been resolved. For convenience, in these reasons I shall refer to both named respondents as "Abergeldie".
5. The applicant brings his claim in the Tribunal on the basis that he is a "consumer" within the meaning of the FT Act and that his claim is a "consumer claim" within the meaning of the FT Act. Abergeldie disputes those contentions. Abergeldie's position is that it provided services to Sydney Water Corporation and, consequently, the applicant was not a consumer within the meaning of the FT Act in relation to those services.
6. Consequently, on 11 May 2022 the Tribunal formulated four issues (the Preliminary Questions) and directed that the parties file and serve written submissions to address those issues. The issues were as follows: 1. Whether the applicant is a "consumer" within the meaning of the Fair Trading Act 1987; 2. If the applicant is not a consumer within the meaning of the Act, identify the cause of action and the jurisdiction of the Tribunal to hear and determine the application; 3. Whether the respondent is engaging in "trade" or "commerce" with the applicant in relation to the subject works, in accordance with the meaning in the Act, or whether the respondent undertook the works as agent for Sydney Water in accordance with its statutory authority pursuant to s 39 of the Sydney Water Act 1994 (and the Tribunal noted that a Certificate of Authority dated 25 February 2019 was handed to the Tribunal by the Abergeldie's representative); 4. If the respondent is acting as an agent of Sydney Water in accordance with the Certificate of Authority, then the parties will need to make submissions having regard to s 60 of the Sydney Water Act 1994 which concerns the Tribunal's powers to make orders under that Act.
7. Clearly, the Preliminary Questions were framed so as to identify whether the proceedings are a consumer claim within the meaning of the FT Act. In the event the proceedings are not a consumer claim within the meaning of the FT Act, the Preliminary Questions are framed so as to identify the relevant cause(s) of action on which the applicant relies and whether or not the Tribunal has jurisdiction to hear such claims.
8. The reference to section 60 of the Sydney Water Act in paragraph 6(d) above appears to be a mistake. Section 60 deals with the imposition of fees and charges. However, neither the applicant nor the respondent provided any submissions concerning section 60 or any submissions that a different section of the Sydney Water Act was intended.
9. The matter was listed for a hearing on the papers on 31 August 2022. I am satisfied in accordance with s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) that it is appropriate to dispense with a hearing of the issues raised by the Tribunal's orders of 11 May 2022 and determine that issue on the materials provided by the parties.

The parties' evidence and materials

1. Abergeldie filed submissions on 10 May 2022. The applicant filed submissions on 2 August 2022. Abergeldie filed further submissions on 30 August 2022.
2. The parties also relied on statements on documents. For the purposes of these reasons for decision, the Tribunal has relied on the following materials filed by the parties: 1. annexures to the Application filed 17 March 2022 (exhibit 1); 2. statutory declaration of Maria Panagiotonakos dated 10 May 2022 (exhibit 2); 3. Abergeldie's submissions dated 8 June 2022 which was filed 10 June 2022 (exhibit 3); 4. Abergeldie's documents filed 10 May 2022 comprising the statutory declaration of Dusty Griffitn dated 10 May 2022 and annexures thereto and written submissions filed on 10 May 2022 (exhibit 4); 5. Abergeldie's written submissions filed 10 June 2022 (exhibit 5); 6. Applicant's written submissions filed 2 August 2022 (exhibit 6); 7. Abergeldie's written submissions filed 30 August 2022 and entitled "Submissions in Reply" and a further statutory declaration dated 25 August 2022 and annexures thereto (exhibit 7); 8. a document on Sydney Water letterhead dated 25 February 2019 and entitled Certificate of Authority (exhibit 8).

Findings

1. To better understand how the issues have arisen it is necessary to give some further background facts. These facts have been derived the evidentiary materials filed by the parties.
2. Sydney Water Corporation (Sydney Water) is a statutory corporation established by section 4(1) of the Sydney Water Act 1994 (the Act). Sydney Water's statutory objectives are set out in section 21 of the Act. The objectives include protecting public health by providing safe drinking water, to operate at least as efficiently as a comparable business and to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6 (2) of the Protection of the Environment Administration Act 1991.
3. In order to achieve its statutory functions and objectives, Sydney Water is granted certain rights or powers to enter private property. Section 38(a) of the Act provides that Sydney Water "may, by persons issued with certificates of authority under section 39, enter and occupy land or a building for the purposes of carrying out repairs … operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that the Corporation considers are necessary or appropriate to any of its works or to construct new works and, for these purposes, to carry out any work on, below or above the surface of the land".
4. The Tribunal makes the following findings.
5. On 25 February 2019 Sydney Water issued Abergeldie Rehabilitation Pty Ltd with a Certificate of Authority (exhibit 8). That Certificate of Authority was issued pursuant to section 39 of the Act.
6. The nature of the powers to be exercised by Abergeldie Rehabilitation Pty Ltd, as recorded on the Certificate of Authority, are to "rehabilitate sewer and stormwater mains and maintenance holes under Contract No 27170/011". The date of expiration of the Certificate of Authority is "the earlier of 31 October 2019 or on completion of all services required."
7. On about 18 July 2018, 18 October 2018 and 4 March 2019 Sydney Water caused pamphlets to be delivered to houses on Livingstone Rd, Petersham, including the applicant's home. The pamphlets advised recipients of a project to investigate and repair wastewater pipes in the area as part of Sydney Water's SewerFix program. The pamphlets advised that "Abergeldie Watertech" would perform the work. Performance of the work required Abergeldie to access Sydney Water's infrastructure on or below the surface or the applicant's property and to excavate and perform other works on his property.
8. On 21 May 2019 Abergeldie employees attended the applicant's property and met with him. A document entitled "Pre-construction customer agreement" was signed by the applicant and by Mr Ibrahim, on behalf of on behalf of "Abergeldie Watertech" (Griffin declaration, 10/5/22, para 6, annexure C). The document bears the words Sydney Water on the top right hand corner using Sydney Water's stylised fonts, including the horizontal wave feature through the letter "E" in the word "Water". The body of the document commences "Sydney water needs to carry out work on its assets". The document also records the following: "Sydney Water needs to carry out work on its assets that are situated on your property." "Sydney Water's contractor, Abergeldie Watertech, will be investigating and repairing wastewater pipes, stormwater pipes and maintenance holes as part of the SewerFix program."
9. The Pre-construction customer agreement is signed by the applicant and Mr Ibrahim. Mr Ibrahim is an employee or agent of Abergeldie Watertech Pty Ltd.
10. In June 2019 Abergeldie Watertech Pty Ltd performed work during which it accessed the applicant's property. There is no dispute the work was substantial (eg see exhibit 6, paragraph 9).
11. The applicant alleges that, in the course of performing the work, Abergeldie caused damage to the applicant's property, including the garage, fence, lawn, an olive tree and a pomegranate tree.
12. The work that was performed by Abergeldie was, subject to one qualification, undertaken pursuant to a contract between Abergeldie and Sydney Water dated 22 July 2016 (see Griffin declaration, 10/5/22, para 2 and annexure B). Abergeldie's entitlement to payment for performing the services was recorded in that contract. This can be contrasted with the "Pre-construction customer agreement" which does not make any provision for payment to Abergeldie for any of the contemplated work.
13. There is one qualification to the preceding paragraph. Mr Duffy deposes that Abergeldie "also carried out some additional works on behalf of the applicant in relation to replacement of a section of the Applicant's pipeline, at no cost to the applicant" (the Additional Work) (Duffy declaration, 10/05/22, para 12). That evidence is not contested and the Tribunal accepts it.
14. It appears the applicant complained to Sydney Water about damage to his property because Sydney Water and the applicant entered into a Deed of Settlement whereby the applicant released Sydney Water from all claims for payment of $1,000.00 (Griffin declaration, 10/5/22, annexure J). The scope of the release in the Deed of Settlement expressly excluded an entity described as "Abergeldie Complex Infrastructure Pty Ltd". Although "Abergeldie Complex Infrastructure Pty Ltd" does not correspond to the name of a respondent in these proceedings, that may be an error capable of remedy in accordance with the principles in Fitzgerald v Masters (1956) 95 CLR 420.

Preliminary Question (a) - whether the applicant a "consumer" and whether the claim a "consumer claim"

1. Jurisdiction is granted to the Tribunal by section 79J of the FT Act to hear and determine a "consumer claim", which includes consumer claims for a money order of an amount that is less than the prescribed amount. The prescribed amount at the time of filing of the application was $40,000.00.
2. I now turn to consider whether the applicant's claim is properly characterised as a "consumer claim" within the meaning of the FT Act.
3. Section 79D of the FT Act defines a consumer and a supplier, relevantly, as follows: consumer means any of the following persons or bodies to whom or to which a supplier has supplied, or agreed to supply, goods or services (whether or not under a contract), or with whom or with which a supplier has entered into a contract that is collateral to a contract for the supply of goods or services: a. natural person, … … supplier means a person who, in the course of carrying on (or purporting to carry on) a business, supplies goods or services.
4. Section 79E defines consumer claim as follows: (1) For the purposes of this Part, a "consumer claim" means a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services: (a) the payment of a specified sum of money, (b) the supply of specified services, (c) relief from payment of a specified sum of money, (d) the delivery, return or replacement of specified goods or goods of a specified description. (2) For the avoidance of doubt, a reference in this Part to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer.
5. In Kennett v Financial Ombudsman Services Ltd [2017] NSWCATAP 59 the Appeal Panel stated at [13] that the elements of a consumer claim arising from the supply of services are that the claim must be: 1. made by a consumer (as defined in s 79D; see also s 79H) 2. arising from a supply (as defined in s 79G(2)); 3. of service (as defined in s 79F); 4. by a supplier (as defined in s 79D) to a consumer (whether or not under a contract) in the course of carrying on or purporting to carry on a business (as defined in s 4); 5. for one of the remedies listed in s 79E(1)(a) to (d).
6. Section 79F defines services as follows: 79F Meaning of "services" (cf CC Act 1998, s 3 (1), definition of "services") (1) For the purposes of this Part, a reference to services is a reference to any of the following: (a) the performance of work (including work of a professional nature), whether with or without the supply of goods, (b) the provision of gas or electricity or the provision of any other form of energy, (c) the provision, or the making available for use, of facilities for amusement, entertainment, recreation or instruction, (d) the letting of premises for vacation or recreational purposes, (e) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction, (f) the provision of insurance cover, (g) the rights or benefits provided, granted or conferred under a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking, (h) the provision of credit, (i) any other rights (including rights in relation to, and interests in, property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce.
7. In Kennett v Financial Ombudsman Services Ltd [2017] NSWCATAP 59 the Appeal Panel concluded at [25] - [27] that, on a proper construction of s 79F(1), the words "provided, granted or conferred in trade or commerce" in s 79F(1)(i) qualify each of the circumstances referred to in s 79F(1)(a) - (h). In Skiba v Serendipity (WA) Pty Ltd [2019] NSWCATAP 224 the Appeal Panel said at [60] - [61]: [60] It is well established that the specific examples of services in s 79F(1)(a) - (h) are affected by the general words at the end of s 79F(1)(i); namely the words - 'provided, granted or conferred in trade or commerce' apply to each of the circumstances referred to in s 79F(1)(a) - (h): see Kennett (supra), at [25] as upheld on appeal in Kennett v Financial Ombudsman Services Ltd [2017] NSWSC 1240, at [30]ff. [61] That is, on its proper construction, s 79F(1)(i) 'is merely a catch-all provision for "other rights, benefits, privileges or facilities" that are "provided, granted or conferred in trade or commerce"'.
8. It follows that, for the purposes of the definition of "consumer claim", the relevant services must be services that "are, or are to be, provided, granted or conferred in trade or commerce".
9. Section 79H of the FT Act is also relevant. That section provides as follows: For the purposes of this Part - (a) a person or body claiming to be a consumer is to be presumed to be a consumer until the contrary is proved, and (b) in any legal proceedings (including proceedings before the Tribunal), the onus of proving that a person or body claiming to be a consumer is not a consumer is on the party who seeks to establish that fact.
10. There is no dispute that the applicant is a natural person. However, subject to one qualification, the services supplied by Abergeldie were supplied to Sydney Water pursuant to the contract between Abergeldie and Sydney Water dated 22 July 2016. The qualification is the performance of the Additional Works. The Additional Works were not performed pursuant to the contract between Abergeldie and Sydney Water dated 22 July 2016.
11. In relation to all the services except for the Additional Works, Abergeldie supplied those services to Sydney Water and not to the applicant. Consequently, the applicant was not a consumer in respect of the provision of those services. This is clear from the terms of the contract between Sydney Water and Abergeldie and the reason for the issuance by Sydney Water of the Certificate of Authority.
12. The conclusion that, apart from the Additional Works, the services performed by Abergeldie were supplied to Sydney Water and not to the applicant is also reinforced by the effect of s 37 of the Act. Under s 37(1) of the Act, Sydney Water "is the owner of all works installed in or on land, at sea, in or on the seabed, in rivers and other waterways and in or on the beds of rivers and waterways by the Corporation and of all works in or on land or in water vested in or transferred to the Corporation (whether or not the land is owned by [Sydney Water])". Consequently, any work performed by Abergeldie, including the installation of any new assets such as pipes, is owned by Sydney Water.
13. I turn to consider whether the Additional Works were "provided, granted or conferred in trade or commerce".
14. In Williams v Pisano [2015] NSWCA 177 the Court of Appeal considered the meaning of the terms "trade or commerce" in the context of the Australian Consumer Law 2010. Emmett JA, with whom Bathurst CJ and McColl JA agreed, said at [36] - [37]: [36] The terms "trade" and "commerce" are ordinary terms that describe the mutual communications, negotiations, verbal and written, bargains and performance that constitute commercial arrangements. The terms are not terms of art, but are expressions of fact and terms of common knowledge. While the particular instances that may fall within them will depend upon the varying phrases of development of trade, commerce and commercial communication, the terms are clearly of the widest import. They are not restricted to dealings or communications that can properly be described as being at arm's length, in the sense that they are within open markets or between strangers or have a dominant objective of profit making. [37] The phrase "in trade or commerce" operates to qualify the prohibitions in s 18 and s 30 against engaging in conduct of the specified kind. Those provisions were not intended to extend to all conduct, regardless of its nature, in which a person might engage in the course of, or for the purpose of, the overall trading or commercial business of that person. Section 18 and s 30 are concerned with the conduct of a person towards other persons, be they consumers or not, with whom the first person has or may have dealings in the course of trading or commercial activities of the first person that, of their nature, bear a trading or commercial character. Such conduct would include promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public. However, the reference to "conduct in trade or commerce" must be construed as referring only to conduct that is itself an aspect or element of activities or transactions that, of their nature, bear a trading or commercial character. The words refer to the central conception of trade or commerce, and not to the immense field of activities in which persons may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business.
15. In these proceedings, the provision of the Additional Works was undertaken free of charge. Abergeldie attended the Applicant's property to perform services for Sydney Water. That led Abergeldie to also undertake the Additional Works for the applicant, free of charge. The provision, granting or conferral of the Additional Work was not "itself an aspect or element of activities or transactions that, of their nature, bear a trading or commercial character". The Additional Works were not provided, granted or conferred within "the central conception of trade or commerce".
16. It follows that the claim brought by the applicant is not a consumer claim because he is not a consumer for the purposes of the supply of the relevant services.
17. In relation to all the services supplied by Abergeldie on or in the vicinity of the Applicant's property other than the Additional Works, the services were supplied to Sydney Water.
18. In relation to the services comprised in the Additional Works, the services were not provided by Abergeldie to the applicant in trade or commerce. Consequently, the Additional Works did not constitute the provision, granting or conferral of services within the meaning of s 79F(1).
19. The applicant contends, as an alternative submission, that under section 55 of the Act was a customer of Sydney Water and had a customer agreement with Sydney Water (exhibit 6, para 12). It is then said that "pursuant to section 55" the applicant "had indirectly become a 'consumer' through the supply of services by the Respondent".
20. Section 55(1) of the Act provides as follows: An owner of land that is connected to a water main or sewer main owned by the Corporation is taken to have entered into a customer contract with the Corporation, on the terms and conditions set out in the relevant operating licence or licences as varied from time to time in accordance with section 59, for the provision of water supply or sewerage services, or either of them, to the land.
21. It may be accepted that the applicant had a customer contract with Sydney Water. Nevertheless, the next step in the applicant's reasoning is that the applicant "had indirectly become a 'consumer' through the supply of services by the Respondent". That is as far as the applicant's submissions discloses the reasoning.
22. The Tribunal does not accept the applicant's alternative contention based on section 55 of the Act. The reasoning does not overcome the fact that, insofar as Abergeldie undertook the Additional Works, this was not undertaken in trade or commerce and therefore was not the provision, granting or conferral of services within the meaning of s 79F(1). The Applicant was not the person to whom the balance of the work was performed by Abergeldie and for that reason the applicant's claim does not satisfy the definition of a "consumer claim" under s 79E.
23. In relation to s 79H, for the reasons set out above, the Tribunal is satisfied that the applicant was not a consumer for the purposes of the FT Act.

Preliminary Question (b) - Identification of causes of action in the event the applicant is not a consumer

1. Preliminary Question (b) required the applicant to identify the cause of action on which he relied in the event that "the applicant is not a consumer within the meaning of the [FT] Act".
2. The applicant did not make any submissions as to causes of action founded that were not founded on the Tribunal's jurisdiction to hear consumer claims.

Preliminary Question (c)

1. The applicant did not make any submissions as to the issue of "trade" or "commerce". However, this issue has been dealt with above.

Preliminary Question (d)

1. The parties did not make any submissions as to section 60 of the Act.

Orders

1. The Tribunal makes the following order: 1. A hearing is dispensed with in relation to the determination of the matters defined as the Preliminary Questions. 2. The application is dismissed. 3. If any party wishes to make submissions as to costs then that party shall file and serve submissions not exceeding 3 pages within 14 days of the date of these orders, such submissions to also address whether a hearing on the papers is appropriate. 4. If any submissions are filed in accordance with order 3 then the other party shall file and serve any submissions in response, not exceeding 3 pages, within 28 days of the date of these orders, such submissions to also address whether a hearing on the papers is appropriate.

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 11 September 2023 - Formatting amendments. 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: 11 September 2023