Royal Flair Caravans Pty Ltd V Kylie Ryan Productions Pty Ltd [2022] NSWCATAP 215

NCAT Appeal Panel|2022-02-21

Citation: Not Applicable Date of Decision: 20 July 2021 & 2 November 2021 Before: D G Charles, Senior Member File Number(s): MV 19/49277; MV 19/56143

Overview

In the Tribunal proceedings the subject of this appeal, the purchaser (a company which was trustee of a family trust) of a caravan from the respondent supplier Kylie Ryan Productions Pty Ltd trading as Inside Outside Bathurst (KRP), succeeded in a money claim against KRP and the manufacturer of the caravan, Royal Flair Caravans Pty Ltd (RFC), based upon breaches of the statutory guarantees in the Australian Consumer Law, NSW (ACL), applicable due to the provisions of the Fair Trading Act 1987 NSW (FTA), concerning the supply of goods to be of acceptable quality.
In the same set of proceedings KRP succeeded in obtaining orders against RFC under the indemnity provisions in s 274 of the ACL. These were orders obtained at two stages of the proceedings, first, in relation to KRP's liability to the purchaser for the reduction in value of the caravan and, subsequently, in relation to costs orders. RFC now appeals from those orders. No appeal has been brought against the orders made in favour of the purchaser.

The orders the subject of the appeal

On 20 July 2021 the Tribunal made the following orders which are the subject of the appeal: 3. In the proceeding constituted by File No MV 19/56143, within 14 days of any payment by [KRP] to [the purchaser] under order 1 above, [RFC] is to indemnify [KRP], by payment to it if it is required in an amount of up to $47,805.00. 4. In the event that [KRP] requires from the Tribunal a certified copy of an order to pay money against [RFC] by reason of order 3 above, the amount of money is to be calculated in accordance with the above orders and for that purpose [KRP] is to provide the Deputy Divisional Registrar with evidence of the payment it has made to the [purchaser] under order 1 above.
Order 1 was the order requiring KRP and RFC to jointly and severally pay the purchaser the sum of $47,805.00.
The Tribunal then proceeded to make orders concerning submissions as to costs.
Subsequently, on 2 November 2021, the Tribunal made the following orders which are also the subject of this appeal: …. 3. In the proceeding constituted by File No MV 19/56143, [RFC] is to indemnify [KRP] for any payment of costs made by [KRP] to [the purchaser] under order 2 above. 4. In the event that [KRP] requires from the Tribunal a certified copy of an order to pay money by way of indemnity against [RFC) in consequence of order 3 above, the amount of money is to be calculated in accordance with the above orders and for that purpose [KRP] is to provide the Deputy Divisional Registrar with evidence of the payment it has made to the Applicants under order to above. 5. In respect of the costs incurred by [KRP] as a respondent in the proceeding constituted by File No MV 19/49277 and as an applicant in the proceeding constituted by File No MV 19/56143, [RFC] is to pay two thirds of [KRP's] costs as agreed or as assessed in accordance with the applicable costs assessment legislation, on the ordinary basis; otherwise, [KRP] and [RFC] are to pay their own costs of the proceedings.
Order 2 referred to in these orders was the order requiring KRP and RFC jointly and severally to pay the applicant's costs of the proceedings.
Following the decision in the substantive appeal, RFC paid the purchaser, directly, the whole of the amount of $47,805.00. When asked by the Appeal Panel about the utility of the appeal in the circumstances, Mr Crossland of Counsel, who appeared for RFC, informed us that there remained a potential contribution claim by RFC against KRP and Order 3 in the substantive proceedings posed a real obstacle to such a claim. In view of this explanation, we have accepted that the appeal is not, purely, hypothetical. There is also the issue of the costs orders.

The reasons for decision concerning Order 3 made on 20 July 2021

On the subject of the Tribunal's jurisdiction and power to make Order 3 on 20 July 2021 the Tribunal said the following: 11 I am satisfied that [the purchaser] as the First Applicant in file no MV 19/49277 and the purchaser from [KRP] of the Raptor Caravan, is a "consumer" for the purposes of s 79D of the [FTA]. 12 Furthermore, because the [purchaser's] Claim is against more than one respondent, that is, [KRP] and [RFC], respectively, the Tribunal is also empowered under s 79P (a) of the [FTA] to make an order that requires a respondent to pay to another respondent a specified sum of money. Such an order (specifically, that [KRP] is indemnified by [RFC] for any sum of money which [KRP] is ordered to pay to the Applicants in the proceedings constituted by file no MV 19/49277) is, in fact, the basis of [KRP's] Claim in the proceeding constituted by file no MV 19/56143. 13 Accordingly, I find that [the purchaser] as the First Applicant in proceeding MV 19/49277, and that [KRP] as the Applicant in proceeding MV 19/56143, have each brought a "consumer claim" within the meaning of s 79E of the [FTA] against the Respondents. Each proceeding otherwise meets the requirements of the Tribunal's enabling legislation to found jurisdiction to hear and determine the proceedings. 14 [The Tribunal made findings that the subject matter of the proceedings arose in NSW and were within the time limit under s 79L of the FTA.] 15 [The Tribunal made a finding that the claim was within the monetary limit of the Tribunal's jurisdiction] 16 Therefore the Tribunal has jurisdiction to hear and determine the proceedings pursuant to s 79J of the [FTA] and also to make orders under s 79N of the [FTA].
It is uncontroversial that the point now raised on appeal, based upon the terms of s 274 (3) of the ACL, that only a court can order the relief sought, was not raised in the proceedings at first instance. Nor was it raised in the Notice of Appeal lodged by the appellant on 15 November 2021. The point was first raised in the appellant's written submissions on appeal lodged on 22 January 2022. After a contested hearing on 21 February 2022, as to whether the appellant would be permitted to raise the new point on appeal and for an extension of time in which to lodge the appeal (as to which the appellant's solicitor provided a statement explaining the reason for the failure to lodge in time), we granted leave for the appellant to raise the new point on appeal and granted the requisite extension of time. The new point was, obviously, an important one and no new facts were raised in respect of its determination.
On the subject of RFC's liability to KRP, the Tribunal, relevantly, said: 155 [KRP] puts its case to be indemnified by [RFC] in respect of its liability to [the purchaser]…, including the legal costs and disbursements it has incurred in both proceedings on two (alternative) legal bases: either by statute under the ACL NSW in s 274, or by general law (contract) under the Dealership Agreement between [KRP] and [RFC]…. 156 I do not find that there is a legal basis in contract for [RFC] to indemnify [KRP]. There is no term or condition of indemnity expressed in the Dealership Agreement, whether in the language that is pleaded by [KRP] in [9] and [10] of it's points of claim pursuant to s 79P (a) of the FTA…, or otherwise arising under the general law….. …… 161 ….. The outcome of the [purchaser's claim] is that [KRP] and [RFC] are jointly and severally liable to [the purchaser] for compensation in the amount of $47,805. [KRP] has a statutory cause of action against [RFC] under s 274 of the ACL NSW. …… 163 The kind of damages to which [KRP] is entitled to be indemnified by [RFC] certainly includes [KRP's] liability to pay damages by way of reduction in the value of the Caravan (s 272 (1) (a)). I do not accept as [RFC] contends…. that the statutory indemnity excludes the profit made by [KRP] for the retail sale of the Caravan. As a matter of interpretation, there are no words in s 274 which exclude profit or which otherwise suggest that the statutory indemnity afforded to [KRP] in s 274 must be read down in the way [RFC] contends. 164 By s 274 of the ACL NSW, [KRP] in this case is further indemnified where: "the supplier incurs costs because the supplier is liable under this Part for…. a failure to comply with the consumer guarantee in section 54": see subsections 274 (1) (a) and 274 (2) (a) (i).
Conclusions by the Tribunal about the liability of KRP and RFC to the purchaser are relevant to issues on the appeal concerning the application of s 274. Pertinently, the Tribunal found or stated: 1. The purchase price of the caravan (inclusive of GST) was $75,975.00. 2. In addition to either a refund of the purchase price or compensation for reduction in value pursuant to s 259 (3) (b) of the ACL, the purchaser sought an order for other compensation under s 259 (4) in respect of damages for reasonably foreseeable losses in an amount of up to $11, 589.20 comprising, principally, interest on a loan, as particularised in Annexure B of the Further Amended Points of Claim: at [23]. 3. The Tribunal found that there were 14 defects with the caravan, including consistent and uncontrollable problems in respect of water and dust ingress, the water tanks were not functioning properly, the refrigerator was not working, internal joinery detached from the chassis, the toilet leaked and the air-conditioning was not functioning effectively: at [48]. 4. In breach (the Tribunal, incorrectly, referred to "contravention") of s 54 of the ACL the caravan was not of acceptable quality because it was not fit for all purposes for which goods of that kind are commonly supplied, it was not free from defects, it was not safe, and it was not durable: [93]. 5. The breach of s 54 constituted a major failure for the reasons set out in ss 260 (a), (b), (c), (d) and (e) of the ACL: at [94].
As to a remedy, the Tribunal rejected the claim against KRP for a full refund. The Tribunal also said: 83 This [a claim for a full refund of the money paid following the giving of a notice of rejection] is different to an action to recover compensation for any reduction in value under s 259 (3) (b) which does not require notice of rejection of the goods to be given to a supplier. An action under s 259 (3) (b) arises upon a breach of the guarantee which constitutes a major failure and the suffering of relevant damage. ….. 127 I find the most appropriate way to compensate [the purchaser] in its (alternative) causes of action against [KRP] whether under s 259 (contravention of the consumer guarantee in s 54 or under s 237 (misleading or deceptive conduct in contravention of s 18) is in the same manner as sought by [the purchaser against [RFC], which is compensation in amounts by reference to: (i) the reduction in the value of the Caravan below the price paid for it, and (ii) damages for reasonably foreseeable losses. 128 In proceeding with this analysis as to the appropriate remedy for [the purchaser] in its claim against [KRP], I should also state my reasons as to why I find compensation is the appropriate remedy against [RFC]; rather than, as [RFC] submitted, a works order for rectification of the defects in the Caravan… [The Tribunal said [RFC's] submission was rejected because it assumed, wrongly, that the defects were not a major failure]. …… [The purchaser's] remedy by way of compensation for reduction in the value of the Caravan 131 I turn to consider the amount of compensation which should be ordered against the Supplier and the Manufacturer for reduction in the value of the Caravan is referred to in s 259 (3) (b) of the ACL NSW. ….. 133 The compensation by way of reduction in value below the purchase price of the Caravan is the amount of $47,805, being the difference between the purchase price ($75,975) and Mr Ryan's estimate of the value of the Caravan with defects ($ 28,170). [The purchaser's] remedy by way of damages for foreseeable loss 134 Given my findings that [KRP] and [RFC] failed to comply with the consumer guarantee as to acceptable quality, a remedy to the consumer, [the purchaser] also lies by way of damages for its foreseeable loss: s 259 (4) of the ACL NSW. 135 [The purchaser] seeks damages for its foreseeable loss as itemised in Annexure B to its Further Amended Points of Claim filed on 18 November 2020. While I accept there is a legal basis to claim damages in addition to the damages ($47,805) I have allowed under s 259 (3) (b) or s 243 (1) (e), there must also be a proper evidentiary foundation to award damages in the amount of $11,589.20 as sought by [the purchaser], and furthermore, the loss and damage claim must be "reasonably foreseeable"… [136]-[138] [The Tribunal rejected the claim for $11,589.20 because there was insufficient evidence to establish these costs and it was not satisfied that the amounts claimed were reasonably foreseeable]. 139 For those reasons, [the purchaser's] claim is limited to compensation by way of reduction in value of the Caravan. On that basis, [the purchaser] is entitled to an order against [KRP] and [RFC] for payment of compensation in the amount of $47,805. ….. 144 For all of the above reasons, I find that [KRP] and [RFC] are jointly and severally liable in the amount of compensation ($47,805) awarded to [the purchaser] under s 259 (3) (b) of the ACL NSW for the contravention of the consumer guarantee that the Caravan would be of acceptable quality.
So far as RFC was concerned, presumably, the Tribunal had in mind s 272 (1) (a) in arriving at this conclusion about joint and several liability.

The relevant reasons for decision in the subsequent costs decision

The Tribunal concluded that because the amount in issue exceeded $30,000.00 it was not necessary for special circumstances to exist in order to make an order for costs and that the purchaser should have an award of costs in its favour, payable on the ordinary basis, because it was the successful party. It found that KRP and RFC, jointly and severally, should pay these costs.
As to the costs position between KRP and RFC, the Tribunal concluded: 42 Just as [RFC] was liable to indemnify [KRP] for [KRP's] liability to [the purchaser] for damages in an amount of $47,805 …., so also because of s 274 of the ACL NSW, I find that [RFC] must indemnify [KRP] for [KRP's] costs' liability in the [purchaser's] claim…. ….. 45 [KRP] did not succeed in its alternative (i.e. contractual) basis for indemnity and I am not satisfied that the relevant language of the legislature for the ACL NSW, in fact, embraces a complete indemnity for the legal costs and disbursements incurred by [KRP] in the proceedings constituted by the [purchaser's) Claim against both Respondents and in [KRP's] Claim against [RFC]. In this respect, by subsections 274 (2) (a) & (b) (i) of the ACL NSW, a manufacturer indemnifies a supplier if: [the Tribunal set out the terms in s274 (2) (a) giving emphasis to the words "because the supplier is liable"] 46 On its proper construction, I find that [KRP's] statutory right of indemnity against [RFC] is enlivened because it has incurred costs in the proceedings relating to its and [RFC's] joint and several liability to the [purchaser] for a failure to comply with the consumer guarantee under s 54 as to the acceptable quality of the Caravan. ….. 48 The issues concerning the [purchaser's] misleading or deceptive conduct claim against [KRP], whether a remedy by way of a refund was available against [KRP], and whether the rejection period within the meaning of ACL NSW had ended, all occupied a significant amount of hearing time and with the subject of detailed written submissions by [KRP] following the hearing. In my estimation up to 1/3 of the time was taken on these issues. They were not issues which related directly to the incurring of costs in respect of the joint and several liability of [KRP] and [RFC] under s259 (3) (b) of the ACL NSW for the [purchaser's] damages in the amount of $47,805 as compensation for the reduction in the value of the Caravan below its purchase price. 49 In the circumstances, I am not persuaded that [KRP] should by reason of its statutory indemnity in s274 of the ACL NSW or otherwise, and further having regard to the general costs principles referred to earlier in this Costs Decision, have an order for all of the costs it has incurred in both proceedings on the indemnity basis. In my determination, the appropriate exercise of the Tribunal's discretion is to order that [RFC] pay two thirds of [KRP's] costs in both proceedings as agreed or as assessed, on the ordinary basis.

Grounds of appeal

Under s 80 of the Civil and Administrative Tribunal Act (NCAT Act), a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, the appellant must satisfy the Appeal Panel that leave to appeal should be granted, having first engaged with clause 12 of Schedule 4 of the NCAT Act.
The appellant did not seek leave to appeal, instead relying on a right of appeal on the basis that each of the grounds of appeal raised questions of law. We agree that they do, noting that it was uncontroversial that this was the case.
The grounds of appeal were as follows (we use RFC's numbering): (1A) The Tribunal erred when it purported to make Order 3 of 20 July 2021 pursuant to s 274 (1) of the ACL, the reason being that the Tribunal does not have power to do so. (1) The Tribunal erred in finding that RFC had a liability pursuant to s 274 to indemnify KRP for its liability to the purchaser pursuant to s 259 (3) (b) of the ACL. (3A) The Tribunal erred when it purported to make Order 3 of 2 November 2021 pursuant to s 274 of the ACL, the reason being that the Tribunal does not have power to do so. (3B) The Tribunal erred when it purported to make Order 3 of 2 November 2021 pursuant to s274 of the ACL, the reason being that a costs liability is not a cost within the meaning of s274 (2) (a) of the ACL. (3C) The Tribunal erred when it purported to make Order 3 of 2 November 2021 pursuant to s 274 of the ACL, the reason being that it was functus officio in relation to the application of KRP. (4) Given that the Tribunal erred in finding that RFC owed an indemnity to KRP the "costs orders" numbered 3,4 and 5 against RFC dated 2 November 2021 should be set aside.

The parties' submissions

Mr Crossland for RFC submitted that the Tribunal's power to make an order in respect of the liability to indemnify in s 274 (1) of the ACL depended upon a supplier bringing an action of the type set out in s 274 (3) and that such an action could only be brought in "a court of competent jurisdiction", the definition of which did not extend to the Tribunal (see s 30 of the FTA). He submitted that the action referred to in s 274 (3) was the only means by which the liability in s 274 (1) could be enforced.
He submitted that the Tribunal erred in concluding that it had jurisdiction to hear and determine the indemnity claim by KRP against RFC under s 79J of the FTA and that KRP's submission that s 79P of the FTA was the source of Tribunal power to make the order upholding the indemnity claim was misconceived. It was misconceived because if the Tribunal did not have the power to determine the consumer claim in question it could not exercise its powers under s 79P of the FTA.
RFC submitted that the existence of the powers in s 79N-79P of the FTA did not justify ignoring the provision in s 274 of the ACL which required that the action be brought in a court.
As to the relevance of the decision of the Appeal Panel in Lam, which rejected the Tribunal's decision at first instance to the effect that only a court had jurisdiction to hear and determine actions under Part 5-4 of the ACL, RFC submitted that the particular provision in s 274 (3) distinguished the current case from the general position dealt with in Lam, that section was clearly intended to be exclusionary of a role for the Tribunal in respect of an action for an indemnity and, in any event, the jurisdiction conferred on the Tribunal under Part 6A was not applicable because the s 274 claim was not a "consumer claim".
Mr Street of Counsel, who appeared for KRP, submitted that there was no contest between the parties that the Tribunal had jurisdiction over the indemnity claim by reason of the operation of the s 79P of the FTA-the dispute was whether it had power to make the orders sought.
As to the question of power, he submitted that s 274 (3) was not an exhaustive statement of the means to enforce the indemnity liability and did not deny the Tribunal's power to make the orders sought in what was a "consumer claim" under Part 6 A of the FTA. He relied upon the use of the word "may" in s 274 (3) and (4) of the ACL, which was permissive and non-compulsory and the fact that KRP had the option to pursue RFC in a court did not mean that the Tribunal, properly seized of the matter, was unable to recognise the "freestanding" liability to indemnify arising under s 274 (1) and to give effect to that "free-standing" liability by granting relief under s 79P of the FTA.
In this regard, Mr Street distinguished s 274 from other provisions in the ACL that disclosed an intention for the liability and associated relief to be determined by a court only, such as provisions that use language such as "if the court finds" then relief 'the court" thinks appropriate may be awarded: for example, s 238 of the ACL.
Mr Street also relied upon various statements in Lam that were supportive of the preservation of the availability of relief granted by the Tribunal in respect of "consumer claims" in conjunction with the grant of relief by a court in respect of claims under the ACL. He submitted that, as was done in Lam, in construing s 274 we should do whatever was required to give it a construction which preserved the jurisdiction and powers of the Tribunal under Part 6A of the FTA.
In addition, Mr Street advanced a number of matters in support of KRP's position as follows: 1. It would be inappropriate to read into s 274 (3) words which gave it an exclusionary effect when such words were not to be found in the section. He referred to what the High Court said in Owners of "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 at 421: "It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words". 2. Similarly, the relevant provisions conferring jurisdiction and power on the Tribunal in Part 6A, which were remedial provisions, should be read broadly and there were no provisions to be found there, or in s 274, that expressly excluded the Tribunal from determining a matter under that section. 3. It would facilitate the objects set out in s 79B of the FTA that all interested parties and their related disputes were before the Tribunal and resolved in the one set of proceedings. In this regard, reliance was placed upon s 33 of the Interpretation Act 1987 (NSW) under which a construction that would promote the purpose or object underlying the Act was to be preferred. 4. The construction of s 274 for which KRP contended was supported by a presumption that Parliament did not intend an unjust, unreasonable or extraordinary consequence, namely that a party was left without an important remedy in proceedings in the Tribunal, with the consequence that there would be a multiplicity of proceedings. In this regard, Mr Street referred to Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297. 5. Because s 274 (3) was permissive, not compulsory, there was no need for the expanded definition of "court" in s 30 (4) of the FTA, which includes the Tribunal, to extend to the use of "court" in s 274 (3). 6. The purpose of s 274 (3) was to grant an alternative and expanded kind of relief which a court could provide.

Section 274 of the ACL

The context for the construction of s 274 of the ACL (including the issue raised by Ground 1, as well as Ground 1A) requires consideration of a large number of provisions of both the ACL and the FTA.
Beginning with the provisions of the ACL of immediate relevance, section 274 is contained in Division 3 "Miscellaneous" of Part 5-4 of the ACL. That part is concerned with "Remedies relating to guarantees". It consists of sections 259 to 277.
Section 274 provides: 274 Indemnification of suppliers by manufacturers (1) A manufacturer of goods is liable to indemnify a person (the supplier) who supplies the goods to a consumer if: (a) the supplier is liable to pay damages under section 259(4) to the consumer for loss or damage suffered by the consumer; and (b) the manufacturer is or would be liable under section 271 to pay damages to the consumer for the same loss or damage. (2) Without limiting subsection (1), a manufacturer of goods is liable to indemnify a person (the supplier) who supplies the goods to a consumer if: (a) the supplier incurs costs because the supplier is liable under this Part for a failure to comply with a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3‑2; and (b) the failure is: (i) a failure to comply with the guarantee under section 54;or (ii) a failure to comply with the guarantee under section 55 in relation to a disclosed purpose that the consumer made known to the manufacturer either directly or through the supplier or the person referred to in section 55(2)(a)(ii); or (iii) a failure to comply with the guarantee under section 56 in relation to a description that was applied to the goods by or on behalf of the manufacturer of the goods, or with the express or implied consent of the manufacturer. (3) The supplier may, with respect to the manufacturer's liability to indemnify the supplier, commence an action against the manufacturer in a court of competent jurisdiction for such legal or equitable relief as the supplier could have obtained if that liability had arisen under a contract of indemnity made between them. (4) The supplier may commence the action at any time within 3 years after the earliest of the following days: (a) the day, or the first day, as the case may be, on which the supplier made a payment with respect to, or otherwise discharged in whole or in part, the liability of the supplier to the consumer; (b) the day on which a proceeding was commenced by the consumer against the supplier with respect to that liability or, if more than one such proceeding was commenced, the day on which the first such proceeding was commenced. [Our emphasis]
The preceding three provisions of the ACL, which make up Division 2, provide the immediate context for the construction issues raised by this appeal.
Section 271, relevantly, provides: 271 Action for damages against manufacturers of goods (1) If: (a) the guarantee under section 54 applies to a supply of goods to a consumer; and (b) the guarantee is not complied with; an affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer. (2) Subsection (1) does not apply if the guarantee under section 54 is not complied with only because of: (a) an act, default or omission of, or any representation made by, any person other than the manufacturer or an employee or agent of the manufacturer; or (b) a cause independent of human control that occurred after the goods left the control of the manufacturer; or (c) the fact that the price charged by the supplier was higher than the manufacturer's recommended retail price, or the average retail price, for the goods.
Section 272 provides: 272 Damages that may be recovered by action against manufacturers of goods (1) In an action for damages under this Division, an affected person in relation to goods is entitled to recover damages for: (a) any reduction in the value of the goods, resulting from the failure to comply with the guarantee to which the action relates, below whichever of the following prices is lower: (i) the price paid or payable by the consumer for the goods; (ii) the average retail price of the goods at the time of supply; and (b) any loss or damage suffered by the affected person because of the failure to comply with the guarantee to which the action relates if it was reasonably foreseeable that the affected person would suffer such loss or damage as a result of such a failure. (2) Without limiting subsection (1)(b), the cost of inspecting and returning the goods to the manufacturer is taken to be a reasonably foreseeable loss suffered by the affected person as a result of the failure to comply with the guarantee. (3) Subsection (1)(b) does not apply to loss or damage suffered through a reduction in the value of the goods.
Section 273 provides: 273 Time limit for actions against manufacturers of goods An affected person may commence an action for damages under this Division at any time within 3 years after the day on which the affected person first became aware, or ought reasonably to have become aware, that the guarantee to which the action relates has not been complied with.
It may be noted here that, in contrast to s 274 (3), the "action" referred to in ss 271-273 is not stated to be an action to be brought in any particular forum. In that regard, these latter three sections take the same approach as s 259 of the ACL.

The construction of s 274 of the ACL - the text of the section

Mr Crossland argued for a construction of s 274 of the ACL from which it followed that the "action… in a court of competent jurisdiction" referred to in s 274 (3) was the only means by which the indemnity the subject of the section could be enforced.
He contended that s 274 (1) and (3) necessarily operated together, first, because part of s 274 (3) was integral to the identification of the nature and scope of the indemnity the subject of the section. As to this, he submitted that s 274 (3) did more than just identify a forum for legal action. He submitted that the sub-section further described the nature of the indemnity by identifying that it was a liability equivalent to that which had arisen under a contract of indemnity between the parties. Without this aspect, so Mr Crossland submitted, the nature of the indemnity, and the associated cause of action in relation to it, was not fully known.
We do not agree. It seems to us that s 274 (1) and (2) are sufficient in themselves to identify the nature and scope of the liability to indemnify, the latter term being one well-known in the law as an obligation to "hold harmless" another from loss. We do not consider that the reference to a "contract of indemnity" adds anything to the identification of the nature and scope of the indemnity referred to in the preceding subsections. Indeed, the reference to "contract of indemnity", unlike the language used in s 274 (1) and (2) (see further below), raises a question as to what was the subject of the agreement between the parties about the indemnity.
In view of this, and the text of s 274 as a whole, it seems to us that the reference to "a contract of indemnity" in s 274 (3) is concerned with the nature of the relief that might be sought in the court action referred to in that subsection. For example, the subsection refers to "equitable relief" and, hence, to the possibility of an order for specific performance and, perhaps, even rectification. As to "legal" relief, in the assumed situation, the subsection appears to contemplate the possibility of a claim for damages for breach of a supposed contractual indemnity.
Secondly, Mr Crossland submitted that the two sections necessarily operated together because the "action" referred to in s 274 (3) was a necessary part of the identification of the cause of action that was needed in order to achieve recovery in legal proceedings.
We do not agree. By comparison to the specification of rights and remedies in other provisions of the ACL, s 274 (1) prescribes the result of a liability to indemnify once the events referred to have been established. In this way, this particular section has rolled up both the elements of a claim for relief, the nature of the relief (an indemnity) and the result, namely that the manufacturer "is liable" to indemnify the supplier. All the ingredients of what can be seen as a type of statutory cause of action to establish a liability to indemnify are laid out, plus more, namely a successful result of legal liability. Section 274 (2) specifies that the scope of the liability to indemnify extends to costs incurred because the supplier is liable in the respects referred to.
Given such terminology, by this provision alone, it is not difficult to infer that the legislature, implicitly, intended that the liability could be recovered by legal proceedings and by legal proceedings in which an order could be made for a specified sum of money in order to achieve the indemnity.
In this regard, we consider that this inference is even more readily drawn than the inference drawn in Lam concerning a supplier's obligation to refund money prescribed in s 263 (4) of the ACL (see at [96] and [101] of that decision).
Nevertheless, the question still remains whether, despite our views on these particular construction issues, the court action referred to in s 274 (3) is the only action available in respect of the indemnity in s 274.
In this regard, the absence of any expression of exclusivity about the court action referred to in s 274 provides some further support for the conclusion that court action was not the only means of enforcement, but there are other matters to be considered as set out below.

Other relevant legislative provisions

The ACL became part of the FTA on 1 January 2011 pursuant to Part 3 of that Act.
Part 3 of the FTA includes s 30, which, relevantly, provides: 30 Meaning of generic terms in Australian Consumer Law for purposes of this jurisdiction ….. (2) For the purposes of the application of the Australian Consumer Law (NSW), court means, unless otherwise expressly provided by this Act - (a) the Local Court, or (b) the District Court, or (c) the Supreme Court. (3) In the following provisions of the Australian Consumer Law (NSW), court means the Supreme Court - (a) section 218, (b) Division 2 of Part 5-2, (c) Division 4 of Part 5-2, (d) sections 246, 247, 248 and 250. (4) In Part 2-3 of the Australian Consumer Law (NSW), court includes the Tribunal. (5) Subsections (2)-(4) are subject to any jurisdictional limits on the court concerned or the Tribunal imposed by any other Act.
In one respect only is the meaning of "court" expanded to include the Tribunal and this is not in relation to the use of "court" in s 274 (3).
However, it is important to recognise that the subject of that expanded meaning is the making of decisions about matters in Part 2-3 (whether a term of a contract is unfair or whether a contract is a standard form contract) that are not the kind of orders that fall within the meaning of a "consumer claim" in respect of which tribunal jurisdiction already existed and was preserved.
With the introduction of the ACL into the FTA, no provisions were made that expressly reduced the existing tribunal jurisdiction and powers in relation to "consumer claims". This was the jurisdiction then reposed in NCAT's predecessor, the Consumer, Trader and Tenancy Tribunal. This was an historic jurisdiction of a tribunal in respect of "consumer claims", the definition of which varied over time, but the feature of which was a focus upon the kind of relief sought, rather than the specific cause of action involved. This was an approach that made allowance for the creation of new causes of action.
The tribunal jurisdiction at the time when the ACL was introduced into the FTA was contained in the Consumer Claims Act 1998 (NSW) (CCA). At this time, when the ACL became part of the FTA, the CCA was not revised in any significant way. Subsequently, on 1 October 2015, the CCA was repealed and effectively re-enacted as Part 6A of the FTA.
The terms concerning the jurisdiction and order making powers conferred on the Consumer, Trader and Tenancy Tribunal which existed at the time when the ACL was introduced into the FTA were, relevantly: Part 1 Preliminary 2A Objects of Act The objects of this Act are as follows: (a) to provide remedies to consumers concerning the supply of goods and services, (b) to simplify and improve dispute resolution for parties involved in consumer disputes. 3 Definitions …… consumer means: (a) a natural person, or (b) a firm, or (c) a small proprietary company, or (d) an owners corporation constituted under the Strata Schemes Management Act 1996, or (e) a company that owns an interest in land and has a memorandum or articles of association conferring on each owner of shares in the company a right to occupy under a lease or licence a part or parts of a building erected on the land, or (f) an incorporated association, or (g) an unincorporated body whose members are associated for a common purpose, or (h) a company limited by guarantee (not being a company limited both by shares and by guarantee), to whom or to which a supplier has supplied or agreed to supply goods or services, whether under a contract or not, or with whom or which a supplier has entered into a contract that is collateral to a contract for the supply of goods or services. consumer claim - see section 3A. ….. supplier means a person who, in the course of carrying on, or purporting to carry on, a business, supplies goods or services. 3A Meaning of "consumer claim" (1) For the purposes of this Act, a consumer claim is: (a) a claim by a consumer for the payment of a specified sum of money, or (b) a claim by a consumer for the supply of specified services, or (c) a claim by a consumer for relief from payment of a specified sum of money, or (d) a claim by a consumer for the delivery, return or replacement of specified goods or goods of a specified description, or (e) a claim by a consumer for a combination of two or more of the remedies referred to in paragraphs (a)-(d), that arises from a supply of goods or services by a supplier to the consumer, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of goods or services. (2) For the avoidance of doubt, a reference in this Act 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. Part 2 Consumer claims 6 Application for determination Any consumer may apply to the Tribunal, in accordance with the regulations, for determination of a consumer claim. 7 Jurisdiction in respect of consumer claims (1) General The Tribunal has jurisdiction to hear and determine any consumer claim brought before it under this Part, whether or not the matter to which the claim relates arose before or after the commencement of this Part, except as otherwise provided by this section. …… 8 Tribunal orders (1) In determining a consumer claim wholly or partly in favour of a claimant, the Tribunal may, subject to this Part, make such one or more of the following orders as it considers appropriate: (a) an order that requires a respondent to pay to the claimant a specified amount of money, (b) an order that requires a respondent to perform specified work in order to rectify a defect in goods or services to which the claim relates, (c) an order that requires a respondent to supply to the claimant specified services other than work, (d) in the case of a claim for relief from payment of money, an order declaring that a specified amount of money is not due or owing by the claimant to a respondent, (e) an order that requires a respondent to deliver to the claimant goods of a specified description, (f) an order that requires a respondent to return to the claimant specified goods which are in the possession or under the control of that respondent, whether the property in the goods has passed or not, (g) an order that requires a respondent to replace goods to which the claim relates, (h) an order that requires: (i) a respondent to refund all or part of the purchase price of specified goods that are in the possession or under the control of the claimant, and (ii) the claimant to return all or part of those goods to the respondent, whether the property in the goods has passed or not. (2) In determining a consumer claim wholly or partly in favour of a respondent to the claim, the Tribunal may make such one or more of the following orders as it considers appropriate: (a) an order dismissing the claim or a part of the claim, (b) an order that requires the claimant to pay to the respondent a specified amount of money, (c) an order that requires the claimant to return to the respondent specified goods which are in the possession or under the control of the claimant, whether the property in the goods has passed or not. (2A) Without limiting subsection (1) or (2), in determining a consumer claim in which there is more than one respondent, the Tribunal may make such one or more of the following orders as it considers appropriate: (a) an order that requires a respondent to pay to another respondent a specified amount of money, (b) an order that requires a respondent to supply to another respondent specified services other than work, (c) an order that requires a respondent to deliver to another respondent goods of a specified description, ….
At this time, the tribunal powers already included the power in section 8 (2A) (a) which, subsequently, became s 79P in Part 6A of the FTA, and upon which KRP relies in relation to Ground 1A.
It is well-established that the tribunal power to order a respondent to pay the claimant a specified sum of money (as referred to in s 8 (1) (a)) includes a claim for unliquidated damages, albeit that it needs to be a claim for a specified sum: see Lam at [130] and [151].
There was no contraction of tribunal jurisdiction at the time of the introduction of this "consumer claim" tribunal jurisdiction into the FTA in October 2015. The introduction occurred by Part 6A of the FTA. It is the provisions of this part that are potentially applicable to confer jurisdiction and the relevant order making power in respect of the claims that are the subject of this appeal.
At all material times the provisions of Part 6A were and are, relevantly: Part 6A Jurisdiction of Tribunal in relation to consumer claims Division 1 Preliminary 79B Objects of this Part The objects of this Part are to provide for remedies for, and the straightforward resolution of, disputes concerning the supply of goods and services to consumers. 79C Conferral of jurisdiction under this or any other Act not affected This Part does not affect any provision of this or any other Act that confers jurisdiction on the Tribunal. 79D Definitions In this Part - 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) a natural person, (b) a firm (within the meaning of the Partnership Act 1892), (c) a small proprietary company (within the meaning of the Corporations Act 2001 of the Commonwealth), (d) an owners corporation constituted under the Strata Schemes Management Act 2015, (e) a company that owns an interest in land and has a memorandum or articles of association conferring on each owner of shares in the company a right to occupy under a lease or licence a part or parts of a building erected on the land, (f) an incorporated association, (g) an unincorporated body whose members are associated for a common purpose, (h) a company limited by guarantee (other than a company limited both by shares and by guarantee). consumer claim - see section 79E. ….. supplier means a person who, in the course of carrying on (or purporting to carry on) a business, supplies goods or services. 79E Meaning of "consumer claim" (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. ….. 79H Persons presumed to be consumers 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. Division 2 Application to and jurisdiction of Tribunal 79I Consumer may apply to Tribunal Any consumer may apply to the Tribunal for determination of a consumer claim. 79J General statement of jurisdiction The Tribunal has jurisdiction, except as otherwise provided by this Division, to hear and determine a consumer claim the subject of an application under this Division. ….. Division 3 Orders of Tribunal 79N Orders in favour of claimant In determining a consumer claim wholly or partly in favour of a claimant, the Tribunal may, subject to this Division, make any one or more of the following orders that it considers appropriate - (a) an order that requires a respondent to pay to the claimant a specified amount of money, (b) an order that requires a respondent to perform specified work in order to rectify a defect in goods or services to which the claim relates, (c) an order that requires a respondent to supply to the claimant specified services other than work, (d) in the case of a claim for relief from payment of money - an order declaring that a specified amount of money is not due or owing by the claimant to a respondent, (e) an order that requires a respondent to deliver to the claimant goods of a specified description, (f) an order that requires a respondent to return to the claimant specified goods which are in the possession or under the control of that respondent, whether the property in the goods has passed or not, (g) an order that requires a respondent to replace goods to which the claim relates, (h) an order that requires a respondent to refund all or part of the purchase price of specified goods that are in the possession (or under the control) of the claimant and the claimant to return all or part of those goods to the respondent (whether the property in the goods has passed or not). 79P Orders where more than one respondent Without limiting section 79N or 79O, in determining a consumer claim in which there is more than one respondent, the Tribunal may make any one or more of the following orders that it considers appropriate - (a) an order that requires a respondent to pay to another respondent a specified amount of money, (b) an order that requires a respondent to supply to another respondent specified services other than work, (c) an order that requires a respondent to deliver to another respondent goods of a specified description, (d) an order that requires a respondent (the first respondent) to return to another respondent specified goods that are in the possession or under the control of the first respondent, whether the property in the goods has passed or not.
As was found by the Appeal Panel in Lam, this preservation of the "consumer claims" tribunal jurisdiction, despite the introduction of the ACL, supported the operation of that jurisdiction in respect of Part 5-4 of the ACL in conjunction with a court jurisdiction, rather than being displaced by the latter.

The Appeal Panel's decision in Lam

The claim in Lam was a claim by the purchaser of a new motor vehicle (the vehicle had been purchased in early 2015) against the dealer and manufacturer for a refund of the purchase price. The claims against the dealer and manufacturer were based upon non-compliance with the statutory guarantees of acceptable quality (s 54), fitness for any disclosed purpose (s 55) and the supply of goods by description (s 56). There was also a claim for misleading and deceptive conduct by the dealer. The claim against the manufacturer was pursuant to ss 271 and 272 of the ACL.
The Tribunal at first instance decided that the Tribunal had no jurisdiction to determine the claim because it concluded that the legislative intention was that claims for remedies under Part 5-4 of the ACL should be determined by a court and not by a tribunal. That decision was overruled by the Appeal Panel. (Without deciding, the Tribunal at first instance also said that it doubted whether the Tribunal's jurisdiction to determine a consumer claim extended to claims made in reliance upon the ACL, except, as provided for by s 30 (4) and s 74 (3) of the FTA. The Appeal Panel expressed its disagreement with that view).
There was no claim in Lam between dealer and manufacturer for an indemnity pursuant to s 274 of the ACL. The remedy with which the Tribunal was concerned was not one in which there was any reference to the forum that was to make the order. (The Tribunal at first instance proceeded to determine the claims in the event that it was wrong about its jurisdiction conclusion. In respect of the claim against the manufacturer, the Tribunal decided that the claim was not made out in the circumstances of the case. There was no appeal against the decision dismissing the claim under s 271 of the ACL against the manufacturer).
In Lam the Appeal Panel made a passing reference to s 274 (at [85(3)]) but made no reference (at [86]) to the express reference to "a court of competent jurisdiction" in s 274 (3), or to the specific remedy in that section: at [87]. When the Appeal Panel stated that nowhere in Part 5-4 was there an express conferral of jurisdiction on any court or tribunal in respect of the causes of action arising under it (see also at [109]) it would appear that it had in mind claims by a party that is ordinarily seen as a consumer against a supplier or a manufacturer and not to claims by a supplier against a manufacturer. Otherwise, in this regard, the Appeal Panel may, with respect, have spoken a little too broadly, unless it was intending to refer to an exclusive conferring of jurisdiction.
Accordingly, the decision in Lam is distinguishable from the present case. Nevertheless, there are important aspects of the reasons in Lam that we regard as significant to the outcome of this appeal.
In the events involved in Lam, it was common ground that the claims were dealt with under the CCA, not Part 6A of the FTA but we do not see that as a material difference to the significance of Lam to the present case.
The Appeal Panel decided that the claims fell within relevant provisions of the CCA, thereby, conferring jurisdiction on the Tribunal and that there was no implied repeal of those provisions by the later ACL or requirement to read down those provisions so that they did not apply to the claims in issue.
In so finding, Appeal Panel considered that the applicable principles of construction meant that a construction of the consumer guarantee and related remedial provisions of the ACL and the provisions of the CCA which did not prevent the provisions of the CCA from operating in relation to "consumer claims" arising out of a failure to comply with consumer guarantees was to be preferred: at [47].
The applicable principles of construction that the Appeal Panel applied were those concerning the construction of related statutory texts, or statutory texts which might both apply in the one set of circumstances and which are potentially contradictory. They were said to be as follows (at [46]): 1. The relationship between two statutes or statutory texts of the same legislature is one of legislative intention, extracted from all available indications. 2. The legislative intention is to be determined by reference to the text of the enactments considered in context: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78]. 3. Statutory texts enacted by the same legislature, whether in different statutes or the one statute, are to be construed so far as possible to operate in harmony and not in conflict: Commissioner of Police v Eaton [2013] HCA 2; 252 CLR 1 at [98]. 4. There is a strong, general presumption that a legislature does not intend to contradict itself and thus two sets of statutory provisions of the same legislature should generally be construed and applied so that both operate.
In this appeal, both parties accepted the correctness of these principles to the extent they may be relevant to Ground 1A.
Importantly, the Appeal Panel also said the following: 105 In our view, Pts 3-2 and 5-4 of the ACL NSW should be viewed as extending the protection previously provided by the implied contractual conditions and warranties to supplies that did not involve a contract and as providing remedies, similar to those remedies a consumer had under the previous consumer protection regime but regardless of whether the supply was under a contract or not. Those Parts were not intended to create an exclusive regime that would preclude a consumer from obtaining remedies, other than those set out in Pt 5-4, which might be available in particular cases. 106 In all these circumstances it may be concluded that the text of Pt 5-4 does not establish a comprehensive or exhaustive remedial scheme nor is it even a complete statement of the causes of action which may arise when there has been a failure to comply with a consumer guarantee. ….. 111 In the case of the Tribunal's predecessor, the CTTT, prior to January 2011, jurisdiction to hear and determine claims by consumers in relation to the supply of goods and services had been conferred by the [CCA]. When the ACL NSW was enacted, the only amendment to the [CCA]'s was that set out in item 3.4 in Sch 3 to the Fair Trading Amendment (Australian Consumer Law) Act 2010 (NSW) and it was of no significance for the CTTT's general jurisdiction to hear "consumer claims". The objects and long title of the [CCA] remain unchanged in January 2011. 112 Accordingly, it can be concluded that the Parliament intended that consumers should still be able to obtain the remedies provided by the [CCA] in cases concerning the supply of goods and services notwithstanding that the former provisions of Div 4 of Pt4 of the [FTA] had been replaced by Pt 3-2 and Pt 5-4 of the ACL NSW. Similarly, it is likely that the Parliament intended that the simplified dispute resolution processes of the CTTT, available prior to 2011 under the [CCA] for parties involved in consumer disputes, should continue to be available even with the introduction of the ACL NSW. On 1 January 2014, the CTTT was abolished in its jurisdiction was taken over by NCAT. 113 Furthermore, even if there were some doubt as to whether the [CCA] was to continue to permit the CTTT, and subsequently NCAT, to provide remedies to consumers concerning the supply of goods and services after the introduction of the ACL NSW, that doubt was resolved when four years later, the [CCA] was effectively re-enacted in full as Pt 6A of the [FTA], in October 2015. This-re-enactment indicates an intention on the part of the legislature that the remedies and simplified procedures of the Tribunal in respect of claims concerning the supply to consumers of goods and services should continue to be available in the Tribunal even when the relevant consumer protection provisions are found in Pt 3-2 and Pt 5-4 of the ACL NSW. ….. 146 The absence of any reference in s 3A or ss 6 or 7 of the CCA to particular common law or statutory causes of action and the defining of a "consumer claim" simply by reference to the type of order claimed by the consumer is a telling indication that the Parliament intended the Tribunal to have jurisdiction in relation to any causes of action, whether arising at common law or under statute, that would support a claim by a consumer falling within one of the descriptions in s 3A (1) (a), (b), (c) or (d) or a combination of such claims: at [146]. ….. 148 There is nothing in the definition of "consumer claim" in the [CCA] or Pt 6A of the [FTA] or in the existence of the right to bring proceedings based on such a claim in the Tribunal which is contradictory to any provision of Pt 3-2 or Pt 5-4 of the ACL NSW. In particular, there does not appear to be any legitimate reason to conclude that, because s 259 (2) (b) (i), (3) (b) or (4) provide that certain amounts may be recovered "by action", this was in some way inconsistent with a claim for such amounts being made under s 6 of the [CCA]. Neither the [CCA] nor the ACL NSW contain any provisions which expressly or impliedly indicate that they were intended to create mutually exclusive legislative regimes for the enforcement of consumer rights. Indeed, the long title and the objects of the [CCA] suggest an intention to create a simplified regime for consumers making claims based upon the consumer protection laws, as they exist from time to time, concerning the supply of goods and services. Thus, it would be erroneous to conclude that it was contrary to the legislative purpose of both pieces of legislation to permit consumer claims under the [CCA] to be brought in the Tribunal based on the various "actions" referred to in s 259 of the ACL NSW. ….. 156 In all the circumstances, it appears to the Appeal Panel that the provisions of the Pt 5-4 of the ACL NSW and of the [CCA] could operate harmoniously together. As illustrated above, all of the causes of action and potential causes of action found in ss 259 and 263 of the ACL NSW could, if established, be vindicated by the Tribunal's making of appropriate orders under various paragraphs of s 8 (1) of the [CCA]. Indeed, the types of orders available under s 8 (1) appear to be particularly appropriate to give effect to the causes of action created by Pt 5-4 of the ACL NSW. 157 In the Appeal Panel's view, far from the CCA contradicting the consumer guarantee remedial provisions of the ACL NSW, the simple regime, established by the [CCA], and its successor Pt 6A of the [FTA], for having consumer claims determined justly, quickly and cheaply in the Tribunal is particularly suitable for the enforcement of the consumer guarantees arising under the ACL NSW….. 158 There appear to be no reasons of public policy or consumer protection why the legislature would seek to remove from the Tribunal the jurisdiction to hear and determine consumer claims that arise from a failure to comply with a consumer guarantee and require consumers to prosecute such claims in a Court. Indeed, the objects of the [CCA], and Pt 6A of the [FTA], suggest forcefully that the Tribunal was specifically intended to have jurisdiction to hear and determine those types of claims. ….. 165 Given the width of the types of orders available under s 8 of the [CCA], it appears that the legislature intended and, since the enactment of ss 79N, 79O and 79P of the [FTA], intends that the orders that can be made by the Tribunal in respect of a consumer claim should be flexible so as to be fair and equitable as between the parties at the same time as being in accordance with law…..In other words, whilst the ACL NSW establishes the foundational causes of action to claim certain relief, the [CCA], and Pt 6A, provide not only a means of obtaining such relief by the making of corresponding orders under s 8 (1) or s 79N, they also allow the Tribunal to supplement those forms of relief in appropriate cases by making additional types of orders, as set out in s 8(1) and s 79N. This approach is consistent with, and gives proper recognition and effect to, the remedial and beneficial nature and purpose of both statutes. It also promotes the objects of Pt 6A of the [FTA] set out in s 79B…. 166 In our view, such a power to make orders under the [CCA], or Pt 6A of the [FTA], supplementing the types of orders that might be made to give effect to the remedies created by Pt 5-4 of the ACL NSW, does not create a disharmony between the ACL NSW and those other Acts. Where one Act supplements the remedies available under another act in certain circumstances, the two pieces of legislation can operate together entirely harmoniously. 167 To construe the [CCA] and the ACL NSW in a way in which the Tribunal below did so as to conclude that the Tribunal did not have jurisdiction to grant a remedy in a case of a faded to comply with a consumer guarantee arising under the ACL NSW (and, taken to its logical inclusion, any other provision of the ACL NSW) appears to be contrary to the approach endorsed by Kirby P in Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 722 as follows: "Upon the hypothesis (which is admittedly often sorely tried) that there is a rational integration of the legislation of the one Parliament, it is proper for courts to endeavour to construe inter related statutes so as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation. This is the approach which I take to the task of statutory interpretation in hand". ….. 170 For all of these reasons we do not think that the presumption that the legislature did not intend to contradict itself has been displaced. On their proper construction is both the ACL NSW and the [CCA] (or Pt 6A of the [FTA]) can operate together sensibly, efficiently and justly. It is not necessary or appropriate in order to achieve a harmonious construction of both pieces of legislation to read down "consumer claim" in the [CCA] so that it does not refer to claims in respect of a failure to comply with a consumer guarantee under the ACL NSW…. 171 The correct position is that the Tribunal has jurisdiction to grant relief, under the [CCA] in respect of claims lodged prior to 1 October 2015 and under Pt 6A of the [FTA] in respect of claims lodged after that date, where the claim is a "consumer claim" based on a failure to comply with a consumer guarantee arising under the ACL NSW, provided the jurisdictional requirements of the [CCA] or the [FTA], as applicable, are otherwise satisfied.
Whilst accepting that s 274 was not the subject of the decision, it seems to us that these opinions expressed in Lam provide considerable support for KRP's position in respect of Ground 1A of the appeal.
Plainly, it follows from what was said by the Appeal Panel in these passages that the claim by a purchaser against a manufacturer the subject of ss 271 and 272 may be determined by NCAT, and there was no dispute about that in these proceedings. In such circumstances, it would seem unlikely that the legislature intended that the related claim under s 274 must be dealt with, exclusively, by a court. Clearly, such an unlikely intention would be one that would result in considerable inefficiency, inconvenience and potential injustice.

The relevant "consumer claim" concerning KRP's claim against RFC

As Mr Street said at the hearing of the appeal, it did appear from the parties' written submissions that, save for the effect s 274 (3) of the ACL, there was no dispute between the parties that, according to the relevant terms of Part 6A, the Tribunal had jurisdiction and power to make order 3 the subject of this appeal. This was because of the combined effect of s 79J and s79P. The relevant "consumer claim" for the purpose of s 79J was the claim by the purchaser against both KRP and RFC in respect of which the Tribunal had power to make an order under s 79P (a) that required RFC, as one respondent, to pay a specified amount of money to KRP, as another respondent, founded upon the liability to indemnity in s 274 (1).
However, in the course of debate at the hearing of the appeal, Mr Crossland developed an argument that, absent s 274 (3), there was no cause of action standing behind the making of an order between respondents pursuant to s 79P, it being indisputable that a cause of action was required to support the order made.
Mr Crossland is correct to say that, in this regard, a relevant cause of action is necessary. As was said by the Appeal Panel in Lam (at [164] (see also per Hope JA in State Rail Authority v Consumer Claims Tribunal and others (1988) 14 NSWLR 474 at page 477): The [CCA], and now Pt 6A of the [FTA], do not, of themselves, create any causes of action. They are predicated upon the existence of causes of action that arise independently from them. The cause of action may be founded upon contract, tort, debt, statute or any other sufficient basis in law. All that is required is that the cause of action is available under New South Wales law to the consumer at the relevant time and provides a legitimate legal basis for the consumer to make a claim of a type listed in s 3A (1) (a) to (e) of the [CCA], or the corresponding definition in Pt 6A, against the supplier. If there is such a claim and the other requirements in relation to jurisdiction are met, the Tribunal then has power to make orders of the types listed in s 8 (now ss 79N, 79O and 79P of the [FTA], having regard to the legal entitlements of the parties under the causes of action upon which the claims are based.
However, as we explained above in relation to the proper construction of s 274, we regard s 274 (1), on its own, as supplying the requisite cause of action so as to permit the Tribunal to exercise the power to make the order in issue.
At the hearing of the appeal, the Appeal Panel raised the question whether the claim by KRP against RFC was a "consumer claim" within the meaning of s79E of the FTA (see definition above) on the basis that KRP was a "consumer" and RFC was a "supplier", within the definitions in s 79D (see definitions above), and RFC's claim was for the remedy set out in s 79E (1) (a), being for the payment of a specified sum of money, and was a claim that "arises from a supply of goods… by [RFC] to [KRP] (whether or not under a contract)...", in accordance with the terms set out in s 79E.
In this regard, whilst s 79E (2) makes it clear that a consumer claim includes a claim by a purchaser against a manufacturer, which is not the direct supplier to the purchaser, this was an inclusive definition that did not exclude the above construction.
We raised the point that this route would provide an additional or alternative basis for Tribunal jurisdiction in respect of the claim by KRP against RFC. Mr Street's response was that he did not need to rely on such an approach. Mr Crossland submitted that the claim by KRP against RFC did not arise from a supply of goods by RFC to KRP, as required by s 79E (1), but rather arose from the supply by KRP to the purchaser.
In the circumstances, and bearing in mind that there was less than full argument on the subject, on this occasion, we decline to take this any further.

Conclusion about Ground 1A

In view of our conclusions about the construction of the text in s 274 set out in paragraphs [42] to [51] above and about the relevant "consumer claim" in relation to KRP's claim for an indemnity, including our conclusion as to the cause of action underlying the power to make the relevant order between respondents under s 79P (set out in paragraphs [76] to [79] above ), along with our analysis of the broader textual matters and applicable principles of construction ,including the opinions in Lam, set out in paragraphs [52] to [76] above , we reject a construction that results in any contradiction between the relevant provisions of Part 6A and s 274 (3), with a consequent need to read down the operation of the consumer claims provisions in the resolution of the dispute between KRP and RFC.
Accordingly, we consider that NCAT had jurisdiction and power to make Order 3 of the orders made on 20 July 2021.
We reject Ground 1A of the appeal.

Ground 1-consideration

RFC submitted that it was not liable to indemnify KRP under s 274 (1) because the circumstance upon which the liability depended set out in s 274 (1) (a) had not been established, namely that KRP was liable to pay damages to the purchaser under section 259 (4). It submitted that the Tribunal had found that KRP was liable to the purchaser under s 259 (3) (b) and had rejected the claim against it under s 259 (4). It also submitted that the liability to indemnify KRP in respect of "costs" set out in s 274 (2) did not apply to the Tribunal's order that KRP was jointly and severally liable with RFC to pay the purchaser the reduction in value of the caravan pursuant to s 259 (3 (b).
KRP's only answer in its written submissions to RFC on this point was that, in truth, the Tribunal did find that KRP's requirement to pay the purchaser the reduction in value was because it was liable to do so under s 259 (4).
We disagree with KRP in this regard, but before examining the submission any further, it is useful to consider the terms of s259, which is in Subdivision A of Division 1 of Part 5-4. The section provides: 259 Action against suppliers of goods (1) A consumer may take action under this section if: (a) a person (the supplier) supplies, in trade or commerce, goods to the consumer; and (b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3‑2 (other than sections 58 and 59(1)) is not complied with. (2) If the failure to comply with the guarantee can be remedied and is not a major failure: (a) the consumer may require the supplier to remedy the failure within a reasonable time; or (b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time - the consumer may: (i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or (ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection. (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: (a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or (b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods. (4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure. (5) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier. (6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3). (7) The consumer may take action under this section whether or not the goods are in their original packaging.
The text of the section makes a distinction between the recovery of any reduction in value of the goods, pursuant to s259 (3) (b), and the recovery of loss or damage because of the failure to comply with the relevant guarantee. The distinction is made plain by s 259 (6), where it is stated that the action for recovery of loss or damage in s 259 (4) is "in addition" to the remedies in s 259 (2) and (3). In other words, the s 259 (3) (b) remedy is not to be regarded as a specific part of a wider remedy for damages set out in s 259 (4). The references in s259 (3) (b) to "compensation" compared to "damages" in s 259 (4) and the added requirement in s 259 (4) that the loss or damage suffered be reasonably foreseeable provides further support for this relationship between the two sections. The notion that the remedy in s 259 (3) (b) might properly be characterised as damages does not alter this relationship between these two provisions.
This was how the relationship between the two sections was interpreted in Vautin v BY Winddown, Inc. (formerly Bertram Yachts) (No 4) [2018] FCA 426 at 293, where the Court said: In addition to the right to return the goods or to damages representing the diminution in value, the consumer is entitled to recover loss or damage suffered "because of" the failure to comply with the guarantee if that loss was reasonably foreseeable (see s 259(4)). This second limb of damages appears to cover those losses which are sustained consequent upon the acquisition of the defective goods. The scope of that "head of damage" would include property loss which has occurred as a result of the defective goods (such as where a faulty electrical appliance causes a house to burn down); the cost of attempting to ascertain the defects in the goods; or, the cost of preserving the goods. It would appear that this sub-section is concerned with the recovery of "reliance losses" as the inclusion of the limitation of "reasonable foreseeability" pertains to such losses rather than expectation losses. Section 259(6) makes it clear the remedy for recovery of damages caused by the non-compliance with the guarantee is in addition to the alternative remedies of returning the goods or recovering an amount that represents the diminution in value of the goods.
Because the indemnity in s 274 (1) only arises in respect of a supplier's liability under s 259 (4), the liability of a supplier to a consumer and the liability of a manufacturer to a supplier may not correspond, as was pointed out in Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672 at 717.
Mr Street contended that the Tribunal had, in truth, found KRP liable to the purchaser for the reduction in value pursuant to s 259 (4). In the first place, in view of our analysis of the relationship between s 259 (3) (b) and s 259 (4) any such conclusion by the Tribunal, in our opinion, would be an error.
However, we disagree that the Tribunal did come to such conclusion. On the contrary, we consider that the Tribunal followed the correct analysis of the two provisions, namely that recovery under s 259 (4) was a separate and additional remedy to that in s 259 (3) (b) and rejected the separate and additional claim by the purchaser for loss or damage under s 259 (4). This conclusion, clearly, emerges from the reasons set out in paragraph 156, reproduced at [16] above.
In support of his argument, Mr Street pointed, in particular, to what was said by the Tribunal in paragraph 139 of the reasons. However, it is plain from the preceding reasons in paragraphs 131 to 138 that in paragraph 139 the Tribunal was expressing its conclusion about KRP's liability to the purchaser pursuant to s 259 (3) (b).
The Tribunal appears to have based its conclusion that RFC was liable to indemnify KRP in respect of the latter's liability to pay the purchaser the reduction in value upon s 272 (1) (a) (see at [163] of the reasons), but this provision was not concerned with the indemnity claim in issue.
At the hearing of the appeal, in circumstances where it appeared that the Tribunal had found KRP liable to the purchaser under s 259 (3) (b) and not under s 259 (4), the Appeal Panel raised the question whether a decision might, nevertheless, be made that liability was also based upon s 259 (4). Mr Street said that this should, if necessary, occur either by the Appeal Panel or by remittal to the Tribunal at first instance. However, in view of our analysis of the relationship between these provisions, such an approach is not available.
Although not relied upon by KRP (or by the Tribunal at first instance), we agree with RFC that s 274 (2) does not provide an indemnity in relation to the liability to pay the reduction in value.
For these reasons, we uphold Ground 1 of the appeal.

Ground 3A, 3B, 3C and 4

These grounds of appeal concern Orders 3, 4 and 5 made by the Tribunal on 2 November 2021 in relation to the recovery by KRP of the costs of the proceedings it was jointly and severally required to pay the purchaser under Order 2 of those orders and of its own costs of the proceedings.
Under Ground 4 of the appeal RFC contends that if it succeeds on any one or more of Grounds 1A, 1, 3A, 3B or 3C then Orders 3, 4 and 5 of the "costs orders' made on 2 November 2021 should be set aside. This must be correct because the "costs orders" were made on the basis that RFC was the unsuccessful party in the claim based upon s 274 (1). (In saying this we do not address the debate raised by KRP as to whether the "costs orders" were, in truth, based upon ordinary costs principles, including the making of what was in substance a Sanderson order, or upon the s 274 indemnities because it is unnecessary for us to do so).
KRP does not take issue with RFC's contention in respect Ground 4 but says that the Tribunal made no error.
In view of our conclusion that Ground 1 is upheld, it follows that Ground 4 is upheld and these 'costs orders' against RFC should be set aside.
In the circumstances, it is unnecessary for us to deal with Grounds 3A, 3B and 3C, although we do consider that Ground 3A should be rejected because it sought to challenge the Tribunal's power to make Order 3 on 2 November 2021 against RFC on the same basis as that raised in Ground 1A.

ORDERS

For the above reasons, we order as follows: 1. The appeal is allowed. 2. Orders 3 and 4 of the orders made by the Tribunal on 20 July 2021 are set aside. 3. Orders 3, 4 and 5 of the orders made by the Tribunal on 2 November 2021 are set aside. 4. Within 21 days of the date when these reasons are issued the parties are to exchange and lodge with the Tribunal written submissions about the costs of the appeal, as well as whether the question of such costs should be dealt with on the papers and a hearing of that question be dispensed with. Within 14 days thereafter, the parties are to exchange and lodge with the Tribunal any written submissions in reply.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2022

Consumer Claims Act 1998(NSW)

Fair Trading Amendment (Australian Consumer Law) Act 2010(NSW)

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