Young v Di Cesare T/As CPC Quality Smash Repairs

Collins v Urban [2014] NSWCATAP 17

Competition and Consumer Act 2010, s 4B

District Court Act 1973 (NSW), s 142N

Fair Trading Act 1987, ss 28, 79, 79D, 79E, 79J, 79L, 79N

Ajaimi v Giswick Pty Ltd [2022] VSC 131

Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165

Amirbeaggi v Matrix Group Co Pty Ltd [2021] NSWCA 21

Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (In Liq) [2000] HCA 25; 202 CLR 588

Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176

Day v SAS Trustee Corporation [2021] NSWCA 71

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26

FLK v Transport for NSW [2023] NSWCATAP 140

Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325

Jamaican Coffee kitchen Pty Ltd trading as Dushan and Shelby Trust v M20 Pty Ltd [2022] NSWCATAP 203

Kudrynski v Orange City Council [2024] NSWCA 33

Pendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Tonto Home Loans Pty Ltd v Taveres [2011] NSWCA 389

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Rita Di Cesare Trading/as CPC Quality Smash Repairs (Respondent)

1. This is an appeal by Rodney Young and Mary Young ("the Appellants") against a decision of the Tribunal made on 31 October 2024 concerning a dispute with Rita Di Cesare Trading/as CPC Quality Smash Repairs ("the Respondent") over the restoration of the Appellants' motor vehicle, a 1956 Morris Minor utility ("the Vehicle"), commencing in mid-2016.

1. Briefly stated the dispute arose from the following arrangements.
2. During 2015, Gino Di Cesare, on behalf of the Respondent, viewed the Vehicle and, according to the Appellants, provided them with an estimate of the restoration costs of $20,000.
3. The Appellants then engaged (our neutral term) the Respondent to undertake the restoration and the Vehicle was taken into the Respondent's possession during 2017.
4. On 13 November 2017, the Respondent issued the first invoice to the Appellants for work in the amount of $4,433 which was paid by the Appellants.
5. Separately, and at a different site, a mechanic was engaged to perform certain mechanical and electrical work which the Appellants agreed to pay.
6. On 19 March 2019, the Respondent issued a second invoice (wrongly dated 13 November 2017) for an amount of $12,940.11. The Appellants sought an itemised account which, as it turned out, was not provided until May 2022.
7. Nonetheless, on 29 March 2019, the Appellants paid the second invoice on the understanding, they claimed, that a detailed account would follow shortly, bringing their payments up to $17,373.11.
8. On 16 February 2022, the Appellants again requested an itemised account of the second invoice of $12,940.11.
9. On 18 March 2022, the Appellants directed the Respondent to cease any further work on the Vehicle.
10. On 29 June 2022, the Respondent provided to the Appellants two itemised invoices, one for the amount of $22,407.00 and a separate invoice for the amount of $3,388.00.
11. At the time of issuing the instruction on 18 March 2022 to stop any further work the Vehicle was still a long way from being fully refurbished.
12. Essentially, the dispute which came to the Tribunal concerned the claim by the Respondent for payment of the two invoices issued on 29 June 2022 totalling $25,795.00.

1. The Appellants made a Motor Vehicle Consumer claim on 7 October 2022. They sought an order that they did not have to pay to the Respondent more than $20,000. The amount of $20,800 is stated on page 2 of the application but later in the attached pages the amounts is altered to $20,000 or that amount plus GST. They set out as the reason for seeking that order the following, namely, that the Respondent had sought to bill them for work in a sum which was greatly in excess of an initial estimate and without any warning over a period in excess of 3 years.
2. At the hearing of their application in the Tribunal their claim was refined. They informed the Tribunal that they were seeking an order that pursuant to s 79N of the Fair Trading Act 1987 ("the FTA") declaring that they are to be relieved of any obligation to pay the Respondent in relation to work carried out on the Vehicle any sum in excess of the amount of $4,687.00, which did not mean the return of money already paid ($17,373.00).
3. [It appears that the amount of $4,687 was intended to be the difference between the original estimate of $20,000 plus GST, minus the amounts paid, namely, $17,373 (which included GST) being $4,627. The difference between $4,687 and $4,627 appears to be the result of an error.]
4. The Appellants further sought an order that the Vehicle with all parts be released to them.
5. The Appellants supported their application before the Tribunal with detailed written submissions relying on various causes of action.
6. First, they submitted that the verbal contract entered into between the parties in or around 2016 included the following implied terms, namely:

(1) that the work the subject of their agreement would be carried out within a reasonable period of time, and in a workman like manner;

(2) that if any substantial delays were likely, the Appellants would be advised in a timely manner and offered the opportunity to take their business elsewhere;

(3) that any costs in excess of $20,000 would be disclosed prior to the accrual of costs in that sum and in a timely manner;

(4) that agreement for incurring costs in excess of $20,000 would be sought prior to incurring such costs;

(5) that adequately detailed accounts would be issued at regular intervals and in any case within a reasonable time of the carrying out of any work.

1. Secondly, the Appellants relied on s 18 of the Australian Consumer Law ("the ACL") that provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive, or is likely to mislead or deceive. The Appellants raised a number of aspects of the Respondent's conduct which are said to have actively mislead them, but also relied on misleading conduct by silence in circumstances where the Appellants claim that it was their reasonable expectation that revised estimates would have been provided whenever necessary and, effectively, that they were kept in the dark whilst additional costs were being incurred. They claimed that they were entitled to assume that the original cost estimate had not been exceeded.
2. The Appellants also relied on unconscionable conduct on the part of the Respondent pursuant to s 20 of the ACL claiming that the actions of the Respondent in leading them to believe that the costs had not exceeded $20,000, and in asserting that no estimate of total costs could be given, and then claiming reimbursement greatly in excess of the cost amounted to unconscionable conduct.
3. Further, the Appellants relied on the Respondent delaying work unreasonably in breach of her obligations pursuant to s 62 of the ACL, being a guarantee that the services will be supplied within a reasonable time.
4. In addition, the Appellants relied on s 101 of the ACL being the obligation on the part of the supplier of services to provide an itemised bill in circumstances where the supplier must, having been requested to provide such a bill within 7 days after the request is made.

1. The Respondent did not appear at the hearing before the Tribunal on 31 October 2024. The application was heard in the Respondent's absence. The Senior Member indicated that he was satisfied that the justice of the case required the matter to proceed in the absence of the Respondent. The Senior Member indicated that notwithstanding the Respondent's failure to appear the Tribunal took into account the material filed by the Respondent in making its final determination.

1. The Appellants tendered as Exhibit A1 two bundles of documents. Those documents included three statements by Ms Young and four statements by Mr Young.
2. The Exhibit included some of the material that had been filed by the Respondent which was regarded by the Appellants as relevant.
3. Each of the Appellants was then administered an oath for the purposes, it appears, of their reliance on the documentation that they tendered.

1. Jurisdiction is conferred on the Tribunal to hear and determine any Consumer Claim by s 79J of the FTA which provides:

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.

1. The meaning of "consumer claim" is set out in s 79E of the FTA:

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.

1. "Consumer" and "supplier" are defined in s 79D of the FTA 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) 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).

"supplier" means a person who, in the course of carrying on (or purporting to carry on) a business, supplies goods or services.

1. Section 28 of the FTA applies the ACL as a law in New South Wales:

28 Application of Australian Consumer Law

(1) The Australian Consumer Law text, as in force from time to time:

(a) applies as a law of this jurisdiction, and

(b) as so applying may be referred to as the Australian Consumer Law (NSW), and

(c) as so applying is a part of this Act.

(2) This section has effect subject to sections 29, 30 and 31.

1. The Appellants failed in their claim and were ordered by the Tribunal to pay to the Respondent the sum of $19,426 on or before 29 November 2024.
2. The basis of this order was that all work carried out by the Respondent up to and including 18 March 2022, the date upon which they ordered the Respondent to cease work, was to be paid. The Tribunal in effect found that the invoice for $3,388 was payable and that the invoice for the sum of $22,407 would be reduced to include work up to and including 18 March 2022.
3. The Tribunal further ordered that the Respondent and/or its contractor was to deliver up the vehicle to the Appellants at a time and date suitable to them and their contractor together with all body and parts of the vehicle in its possession not attached to the vehicle.
4. A stay was granted in relation to the payment of the money order.

1. The Tribunal handed down ex tempore reasons at the conclusion of the hearing. The reasons relevantly proceeded as follows:

(1) The Senior Member identified the nature of the claim, namely orders that the Appellants did not have to pay to the Respondent the amount of $20,800 being the amount the subject of the two invoices dated 29 June 2022 for the restoration work on the vehicle and that relief from this obligation arose under the ACL and FTA.

(2) The cause of action must arise within 3 years prior to the commencement of the proceedings which occurred in October 2022.

(3) The Tribunal had jurisdiction under the FTA by reason of s 28 of the Civil and Administrative Tribunal Act 2013 ("the CAT Act"), the claim being a consumer claim for the purposes of the FTA and s 4B of the Competition and Consumer Act 2010. The claim did not exceed the prescribed monetary limit of that jurisdiction.

(4) There were two elements to the claim. First, whether there was any breach of any contract arising under an original contract entered into on or about 2017. Secondly, the works that were carried out subsequently and invoiced under the two invoices dated 29 June 2022 was work that was carried out by the Respondent to the vehicle, and, thirdly, whether there had been any breach of the FTA and ACL. The Senior Member then proceeded to identify the relevant terms of s 18 of the ACL and ss 20, 21, 62 and 101 of the ACL.

1. During the course of the hearing the Senior Member had identified that the invoices that were rendered and paid by the Appellants in 2017 and 2019 (see paragraphs 5 and 8 above) were not subject to the review by the Tribunal as they had been rendered and paid more than 3 years before proceedings were commenced. The decision of the Tribunal the Senior Member indicated would only consider any breach by the Respondent in carrying out the works for the Appellants for which invoices were rendered on 29 June 2022, being for the sums of $3,388 and $22,407 which were found formally to be within the Tribunal's jurisdiction.
2. The Tribunal then set out a brief summary of the facts found based on the evidence of each of the Appellants and their documents which were admitted as Exhibit R1, and noting that the Respondent had filed documents on 27 March 2023 and 2 June 2024. The Senior Member stated that although the Respondent was not present to give any evidence he had read and taken into account the documents that had been filed and were said to be relied upon by the Respondent's solicitor if the matter were to proceed in the absence of the Respondent.
3. The facts were then stated to be these:

(1) In 2015, the Appellants decided to restore the Vehicle which they had purchased in 2006 and came into contact with the Respondent about the restoration of the Vehicle through her business CDC Quality Smash Repairs. The Respondent's representative, Gino Di Cesare, attended the Appellants' property and inspected the vehicle and during that time discussions were had. It was Mr Young's evidence "repeated at the hearing today as sworn evidence" that he, Mr Young, never stipulated a budget for the repairs but that Gino Di Cesare "indicated that the estimated cost of a restoration would be more than $20,000".

(2) Some time later on 17 July 2017 the vehicle was collected by Gino Di Cesare and taken to the Respondent's place of business and work commenced and invoices rendered, the first on 13 November 2017.

(3) Some mechanical work was then carried out by one Liam Kelly who traded as Euro Car Garage and his bills were paid by the Appellants.

(4) On 19 March 2019, the Respondent issued a further invoice for $12,940.11 which the Appellants paid in full.

(5) Discussions ensued between the parties and the Respondent agreed to prepare an itemised account setting out details of the works that had been carried out by the Respondent.

(6) Further works were carried out by Liam Kelly for the mechanical side of the vehicle and invoiced to the Appellants and paid.

(7) There were discussions on 17 February 2022 between the Appellants and Gino Di Cesare and they were informed that he had prepared a list of items which he said would be cheaper if he obtained them for the Appellants. At that stage still no firm itemised account had been provided for the invoice of the 19 March 2019, despite a number of requests.

(8) Up until the further meeting on 18 March 2022 the Appellants were not satisfied with the progress of the works and it was at that meeting that Ms Young requested that the Respondent provide a ball park figure to complete the project.

(9) On 18 March 2022, the Appellants sent an email to Gino Di Cesare setting out their concerns and instructing him to cease any further work for the time being.

(10) On 27 May 2022, the Appellants received from the Respondent a document as an estimate for the period 26 March 2020 to 7 May 2022 asserting that an amount of $22,407 for works during the period had been carried out.

(11) It was not until 29 June 2022 that the Appellants received an invoice for $22,407 for works carried out up until 7 May 2022 and on the same day a further invoice for $3,388, each of those invoices remaining unpaid.

(12) The Appellants contended that they were not liable for those amounts as they were incurred without their authority, that there was an implication certainly that there was discussion about the cost of the restoration work exceeding a reasonable amount and certainly not authorised by them or in the alternative that there was deceptive or misleading conduct on the part of the Respondent, that they had engaged in unconscionable conduct and breached the ACL in relation to the guarantee to provide services within a reasonable time.

(13) It would appear to the Tribunal that the work continued after the Appellants expressed concern about the cost increasing more than they had expected but it was not until March 2022 that the works were requested to stop.

(14) On the uncontested evidence the Tribunal was satisfied that the Respondents were given notice to cease work on 18 March 2022 and, nonetheless, that work continued to be carried out after that date until 7 May 2022.

(15) On the evidence the Tribunal was not satisfied that the agreement to carry out the works was terminated until 18 March 2022 and on that basis the invoice of 29 June 2022 for $3,388 was payable, but in relation to the second invoice dated 29 June 2022 for $22,407 it ought to be discounted for work carried out after 18 March 2022, namely 30 March 2022 to 7 May 2022. On that basis there would be excluded from the Respondent's invoices the sum of $4,207.

1. Calculations were then carried out in exchanges between the Senior Member and the Appellants in order to make the necessary deductions including certain for disbursements which should not have been claimed arriving at a figure of $16,038.00 in respect of the larger of the invoices of 29 June, to which was added the smaller invoice of $3,388 giving a total of $19,426, the amount the subject of the orders made by the Tribunal.
2. From these reasons it is clear that the Senior Member:

(1) proceeded on the basis that the Appellants had authorised the Respondent to carry out work, regardless of the estimate, regardless of accruing costs, and were liable for the costs of the work until such time as the Appellants instructed the Respondent to stop on 18 March 2022;

(2) did not consider or determine precisely the terms of the contract or what authority had in fact been granted to the Respondent to incur costs for the refurbishment of the Vehicle;

(3) proceeded on the basis that what had occurred prior to the 3 year period imposed by s 79L of the FTA was not to be considered;

(4) did not engage with or determine the grounds relied upon by the Appellants at first instance to support their application and no findings were made in relation to any of the matters relied upon and which we have set out at paragraphs [18] to [22] above.

1. The Appellants relied on the following grounds of appeal:

(1) Having determined that it had jurisdiction to deal with the claims, the Tribunal erred in law by failing to exercise its jurisdiction pursuant to the Australian Consumer Law.

(2) The Tribunal erred in law by failing to identify the real issues in dispute between the parties.

(3) The Tribunal erred in law by failing to determine the terms of the contract, explicit and implied and to apply those terms to the facts of the matter.

(4) The Tribunal erred in law by making findings of fact for which there was no evidence.

(5) The Tribunal erred in law by failing to refer to or take into account the Appellants' submissions relating to the Australian Consumer Law.

(6) The Tribunal erred in law by failing to refer to or take into account the Appellants' submissions relating to contract law.

(7) The Tribunal erred in law by failing to give an adequate explanation of its reasoning processes.

(8) The Tribunal erred in law by failing to accord the Applicants procedural fairness in the conduct of the hearing.

(9) The Tribunal erred in law by failing to consider or make any findings about the Appellants' submissions that the Motor Traders Association (MTA) Code of conduct represented a written expression of accepted industry practice.

(10) The Tribunal erred in law by failing to give consideration to the expert opinion of Gavin Wood in relation to the issues of delay, failure to disclose increased costs and the requirement that "whatever estimating method adopted by a repairer, this must also be assessed transparent and understood by all parties involved in the repair process."

(11) The Tribunal erred in law in failing to consider the Respondent's undisputed delay in carrying out the work and in issuing invoices.

(12) The Tribunal erred in law in failing to consider the undisputed fact that the Respondent failed to disclose that costs had exceeded the only known estimate of $20,000.

1. The Appellants seek leave to appeal on the basis that the decision was not fair and equitable on the following basis:

"As the Tribunal gave no adequate reasons for its findings, it is difficult to understand how the Tribunal reached the conclusion that the Appellants are liable to pay both invoices, which were the subject of the Appellants' case, with the exception of costs accrued after 18 March 2022.

The Tribunal made no findings as to the terms of the contract between the parties.

The Tribunal made no findings as to misleading and deceptive conduct, unconscionable conduct, failure to complete the work within a reasonable time or failure to provide an itemised account in breach of the Australian Consumer Law, all of which were part of the Appellants' case.

The Tribunal found that the agreement between the parties had not been terminated until 18 March 2022, without making any findings as to the terms of the agreement, which the Tribunal found had commenced in July 2017.

The Tribunal apparently proceeded on the basis that the Appellants' case was about the quantum of costs. It was not the Appellants' case that the costs claimed were excessive, but rather that a large part of the costs claimed had been incurred without their knowledge and consent in breach of implied terms of the contract between the parties and also in breach of the Australian Consumer Law.

It was not open to the Tribunal on the evidence that the Appellants had not made out their case - to do so is unfair and inequitable.

In Vilder v Lee t/a Northern Rivers Landscaping [2023] NSWCATAP 52, p47 the Appeal Panel determined that "It would be unjust to allow the Tribunal's findings to stand where the Tribunal went about the fact-finding process in such a way as to produce an unfair result.""

1. Internal appeals may be made as of right on a question of law and otherwise with leave of the Appeal Panel: s 80(2)(b) of the CAT Act. In Jamaican Coffee kitchen Pty Ltd trading as Dushan and Shelby Trust v M20 Pty Ltd [2022] NSWCATAP 203 the Appeal Panel set out the principles as follows:

[19] An internal appeal is not a re-hearing of the original proceedings or a mere opportunity for a party dissatisfied with the outcome in the original proceedings to re-argue its case: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must establish an error of law has occurred, or otherwise an error of the type that it is appropriate to grant leave to appeal.

[20] In Pendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Pendergast) the Appeal Panel set out at [13] a non-exclusive list of questions of law, which relevantly includes whether there has been a failure to provide proper reasons, whether the Tribunal applied a wrong principle of law and whether there was no evidence to support a finding of fact.

[21] The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(1) the decision of the Tribunal under appeal was not fair and equitable; or

(2) the decision of the Tribunal under appeal was against the weight of evidence; or

(3) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

[23] In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where:

"... there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." (emphasis in original)

[23] In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that:

(1) if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act;

(2) the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach.

[24] Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.

[26] In Collins, the Appeal Panel at [84(2)] stated as follows concerning exercise of that discretion:

"[84] The general principles derived from these cases can be summarised as follows:

...

Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed;"

[26] The Appeal Panel may decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing: s 80(3)(a) of the NCAT Act. Further, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to any one or more of orders that the appeal is to be allowed, the decision under appeal is to be set aside, and the whole or any part of the case is to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel: s 81(1)(a), (c) and (e) of the NCAT Act.

1. There are several important cases relevant to the construction of s 80 of the CAT Act. These were recently referred to in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25] (Unique).
2. The Appeal Panel there said, inter alia, that:

(1) Absent leave to appeal, the question of law is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Medical Council of New South Wales v Mooney [2024] NSWCA 180 (Mooney) at [97].

(2) The question of law should be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Kudrynski v Orange City Council [2024] NSWCA 33 at [48], Mooney at [97], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [28] ...

(3) A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11].

...

(5) A "pure question of law" does not depend on facts not found: Orr v Cobar Management Pty Ltd [2020] NSWCCA 2020 at [48] and [109] ...

...

(8) A mixed question of fact and law is not a question of law: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWCA 734 at [39] ...

...

(10) An appeal is "on" any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid: Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353-354; [1990] HCA 33.

(11) An appeal is against orders and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34]; Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.

1. Jurisdictional error will often raise a question of law: Unique at [32(8)].
2. In our view, the Grounds of Appeal can be distilled to:

(1) the Tribunal constructively failing to exercise its jurisdiction under s 55(1)(b) of the CAT Act by failing to engage with and determine the Appellants' properly articulated claim;

(2) the Tribunal applying the wrong principles of law to the effect that the 3 year limitation period precluded it from examining the terms of the contractual relations between the parties or the other causes of action (Pendergast at [13]);

(3) the Tribunal failing to provide procedural fairness by excluding from consideration grounds specifically identified in support of the claim (Pendergast at [15]).

1. As recently set out in Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176, a constructive failure to exercise its jurisdiction as identified by Basten JA in Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 (Alexandria Landfill) at [6] and [22], is a reference to a situation where there has been an "apparent" exercise of jurisdiction, but the exercise has failed in some relevant way and may raise a question of law. A constructive failure to exercise jurisdiction has been treated as raising a question of law: FLK v Transport for NSW [2023] NSWCATAP 140 at [22]-[27] and cases there cited. See too Day v SAS Trustee Corporation [2021] NSWCA 71, although that decision was concerned with appeals on a "point of law" for the purposes of s 142N(1) of the District Court Act 1973 (NSW) at [15].
2. The expression "constructive failure to exercise jurisdiction" is used in different contexts. It has been applied to a case where the contention is that there was a failure to deal with a substantial, clearly articulated argument, which may also constitute a breach of natural justice or procedural fairness: Alexandria Landfill at [9], citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24]- [25]. Notably, s 38(2) of the NCAT Act preserves the rules of natural justice. Breach of procedural fairness has also been treated as, potentially, raising a pure question of law: Kudrynski v Orange City Council [2024] NSWCA 33 at [52].
3. In our view, the appeal raises the pure questions of law set out above for determination.
4. In any event, we are of the view, for the same reasons as set out in paragraph [48] above that leave should be granted as the decision was not fair and equitable and that the Appellants suffered a substantial miscarriage of justice.
5. It was not fair and equitable where:

(1) crucial elements of the Appellants' case were not dealt with; and

(2) matters were wrongly excluded from consideration which were crucial elements of the Appellants' case.

1. These grounds effectively raise the same issues.
2. In our view, the grounds must be upheld. The Tribunal did not identify the real issues between the parties and proceeded on the basis that the Respondent was entitled to carry on doing refurbishing work on the Vehicle and claiming for the work against the Appellants until she was told to stop. It was necessary, in our view, to first identify the contractual terms of the relationship between the parties before any conclusion could be reached as to the Appellants' ongoing liability to the Respondent. The Tribunal did not do so.
3. In addition, although the Tribunal made reference to the ACL the Senior Member did not engage with the issues, or make any relevant findings in respect of the claims based on this legislation. This was so notwithstanding detailed written submissions by the Appellants setting out their claims under the relevant statutory provisions.
4. In our view, this amounted to a constructive failure on the part of the Tribunal to exercise its jurisdiction or, alternatively, to afford procedural fairness to the Appellants by failing to deal with the case presented for the consideration by the Tribunal which, in our view, was within jurisdiction.
5. Further in respect of Grounds 3 and 6 it is clear that the Tribunal proceeded on the basis that because the contract was entered into in 2016 it was not necessary to consider the terms of the contract.
6. Section 79L of the FTA reads as follows:

79L Limitation periods

(1) The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply --

(a) the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged,

(b) the goods or services to which the claim relates were supplied (or, if made in instalments, were last supplied) to the claimant more than 10 years before the date on which the claim is lodged.

(2) Nothing in this section affects any period of limitation under the Limitation Act 1969.

1. The formation of the contract and its terms were essential to determine the liability of the parties to that contract.
2. Section 79L did not preclude that examination.
3. If a cause of action arose in this case under contract it would be the claim by the Respondent for failure to make payment of the 2 invoices rendered on 29 June 2022.
4. Section 79L proceeds on the basis that the 3 year limitation period applies where the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim was lodged, which is not the case here.
5. It follows that the Appeal must be upheld.
6. It is clear from findings sought by the Appellants that they are seeking of the Appeal Panel that it exercises its powers under s 80(3) of the CAT Act to determine the appeal by way of rehearing.
7. We have hesitated to adopt that course but, in the interest of expedition have decided to do so in circumstances where, in our view, there are limited factual matters to determine in order to deal with the Appellants' claims and dispose of the appeal.

1. In order to imply a term into a contract which has not been reduced to complete written form the test is as set out in Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (In Liq) [2000] HCA 25; 202 CLR 588 at [46] where the Court affirmed what had been held in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 422 by McHugh and Gummow JJ. The question is whether the implication of the particular term is necessary for the reasonable or effective operation of the contract in the circumstances of the case and only where this can be seen to be true will the term be implied.
2. We have set out above the terms of the agreement between the parties which the Appellants contend should be implied.
3. In our view terms (3) and (4) which read as follows are necessary for the reasonable and effective operation of the contract in the circumstances in which it was made:

(1) that any costs in excess of $20,000 would be disclosed prior to the accrual of costs in that sum and in a timely manner;

(2) that agreement for incurring costs in excess of $20,000 would be sought prior to incurring such costs;

1. It would follow that in the absence of fulfilment or compliance with those terms the Appellants would not be held liable for work done by the Respondent in excess of $20,000.
2. The evidence of Mr Young which we must take as having been affirmed by his oath was as follows:

"In discussing the possibility of restoration with Gino he indicated that a ball park figure would be around $20,000. At no stage since then has any other estimate of the cost of the works been mentioned by Gino. Indeed, I must reflect that if at this stage, or at any stage over the next 6 years we had been given an estimate of the current full cost of this job, now amounting approximately $65,000 we would have stopped the project immediately. The maximum value of a vehicle of this type and age fully restored is no more than $25,000."

1. In his supplementary statement responding to a statement of Gino, Mr Young said that "I had asked how much the project was likely to cost and he informed me that the cost would be $20,000 and that this figure might vary depending on whether or not additional issues arose".
2. In our view, the evidence supports a finding that the Appellants were given an estimate of $20,000 which might vary depending on whether or not additional issues arose and that they authorised the Respondent to carry out the refurbishment up to and including $20,000.
3. In the circumstances of this case, where the Appellants had been given an estimate of $20,000 for performing the refurbishment on the vehicle, and the Appellants authorised the Respondent to proceed on that basis, we are of the view that term (c) is necessary so as to ensure that the Respondent did not have an open ended authority to carry out work and charge the Appellants in an unrestrained way in circumstances where they had initially given authority to proceed on an estimate of $20,000. If, as contemplated the estimate might vary where additional issues arose, it was necessary to make disclosure and seek authority to proceed.
4. On the facts presented at the hearing the Respondent at no relevant stage disclosed to the Appellants that the estimate of $20,000 would be, or was, being exceeded prior to the accrual of additional costs.
5. In addition, the evidence discloses that the Appellants did not authorise the Respondent to carry out work for which they would be liable beyond the $20,000 estimate provided to them at the start.
6. The Appellants were, therefore, under no contractual obligation to pay to the Respondent for unauthorised work above the $20,000 estimate.
7. The fact that the contract was entered into beyond the 3 year limitation period in s 79L did not preclude an evaluation as to whether the Appellants in fact had any liability to the Respondent.
8. Accordingly, the Respondent had no entitlement to payment to her beyond the $20,000 subject of the original estimate.
9. It is not necessary in the circumstances to deal with the other claimed implied terms of the contract.
10. The result is that the Appellants' liability to the Respondent is the amount of $4,627 which is arrived at as the difference between the original estimate of $20,000 (plus GST) minus the amounts paid, namely, $17,373 being $4,627. As appears above that figure was proffered at the hearing as the extent of their liability which we accept.

1. The Appellants rely on s 18 of the ACL which provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
2. The Respondent was clearly a person engaged in trade or commerce.
3. A cause of action for contravention of s 18 is created by s 236 of Schedule 2 of the ACL which provides for the recovery of loss or damage.
4. Hence, the cause of action first accrues within the meaning of those provisions when loss or damage is suffered.
5. The relevant principles applicable to misleading and deceptive conduct by silence were summarised by the Appeal Panel in Jamaican Coffee kitchen Pty Ltd trading as Dushan and Shelby Trust v M20 Pty Ltd [2022] NSWCATAP 203 at [177] as follows:

In Ajaimi at [126]-[127] M Osborne J set out the following principles for engaging in misleading or deceptive conduct under s 18 of the Australian Consumer Law (which is the statutory analogue to s 62D of the RL Act):

"[126] Turning first to the claim by silence, silence may constitute misleading or deceptive conduct 'where it embodies a false representation or where there is a reasonable expectation that a relevant fact will be disclosed'.30 The essential question is whether, having regard to the circumstances constituted by acts, omissions, statements or silence, there has been conduct likely to mislead or deceive. It is clear that silence alone cannot give rise to a breach of s 18 of the ACL. In Addenbrooke Pty Ltd v Duncan (No 2), Gilmour and White JJ summarised the principles relevant to cases of silence:

(a) conduct involving silence or nondisclosure may, in some circumstances, constitute misleading or deceptive conduct;

(b) in considering whether conduct is misleading or deceptive, silence or nondisclosure is to be assessed as a circumstance like any other;

(c) mere silence is unlikely to constitute misleading or deceptive conduct. However, remaining silent will constitute misleading or deceptive conduct if the circumstances give rise to a reasonable expectation that, if some relevant fact does exist, it will be disclosed;

(d) the existence or otherwise of such a reasonable expectation is to be determined objectively;

(e) it is not possible to categorise all of the circumstances in which a reasonable expectation of disclosure may arise. Such circumstances may exist, for instance when either the law or equity imposes a duty of disclosure, when a statement conveying a half-truth only is made, when the respondent has undertaken a duty to advise, when a representation with continuing effect, although correct at the time it was made, has subsequently become incorrect, and when the respondent has made an implied representation.

(f) in commercial dealings, in assessing whether there is a reasonable expectation that a fact, if it exists, will be disclosed, it will often be the case that one party to a commercial dealing has more knowledge about a relevant matter than the other but will not, in accordance with ordinary commercial expectations, be guilty of misleading or deceptive conduct by failing to make that knowledge known to the other party.

(citations omitted)

[127] It is clear from the above that the landlord's silence alone is unlikely to constitute misleading or deceptive conduct. Further, the silence has to be assessed as a circumstance amongst many others, which relevantly in the present case includes a provision in the Lease that the Premises were leased in their present state and condition. It is not the case that, without more, a prospective landlord of premises must positively disclose defects in the premises to a prospective tenant such that if it does not, the landlord will be liable under the ACL for the failure to disclose that matter."

1. The reference to Ajaimi is a reference to Ajaimi v Giswick Pty Ltd [2022] VSC 131.
2. As to the measure of damages recoverable under s 18 it was held in Ajaimi at [131] that the measure in most, if not all, cases is the measure of damages representing the prejudice or disadvantage suffered in consequence of the party having altered their position under the inducement of the relevant representation, a position analogous in broad terms to tortious damages. It involves an analysis of the difference in position as induced and the relevant counter factual position.
3. In the present matter if the Appellants are not liable in contract to pay to the Respondent any additional monies beyond $20,000 they have no cause of action under s 18 of the ACL as they have not suffered prejudice or disadvantage.
4. If, however, we are wrong in that conclusion and they are liable for the work or some of it as set out in the 29 June 2022 invoices then they have suffered the prejudice, or disadvantage, or liability for the work reasonably incurred beyond $20,000.
5. That liability arises, however, where there was a failure on the part of the Respondent to make disclosure to the Appellants that the estimate was being departed from. In our view, this silence occurred in circumstances where there was a reasonable expectation that this fact would be disclosed before additional liability accrued to the Appellants.
6. Further, it is clear to us that had disclosure been made the Appellants would have taken steps to stop work beyond $20,000. We have come to that conclusion on the basis that from the time of paying the invoice of 29 March 2019 in the amount of $12,940.11 the Appellants were seeking a detailed account of the work that had been completed in order for them to make an assessment as to the position and their subsequent calls for estimates for the conclusion of the work.
7. The Respondent was clearly in a favourable position with knowledge of the costs accruing and what work was still to be done, more so, in our view than the Appellants.
8. Further, in our view the Appellants would not have agreed to incurring liability for the refurbishment which exceeded the original estimate by more than 100%, even not allowing for the extra costs incurred for the mechanical and electrical work paid separately.
9. With the qualification expressed at paragraph 90 above, we find that the Respondent engaged in misleading and deceptive conduct, as a result of which the Appellants suffered loss and damage for all amounts of the claimed work beyond $20,000.
10. In the circumstances we do not regard it as necessary to consider the claims for active misleading and deceptive conduct.

1. The Appellants relied on s 20 of the ACL. In light of our conclusions above we will deal very briefly with this claim. The Appellants are not unsophisticated, illiterate or generally vulnerable persons. In fact, Ms Young previously held professional qualifications including in the practice of law.
2. There is no evidence of undue influence or pressure applied to the Appellants.
3. There is no suggestion that the relative strengths or bargaining position between the parties require us to conclude there was unconscionable conduct.
4. Also there is no evidence of the Respondent taking advantage of the vulnerability on the part of the Appellants and there was no moral tainting in their conduct - see, for example, Tonto Home Loans Pty Ltd v Taveres [2011] NSWCA 389.

1. The Appellants also relied on s 62 of the ACL being a guarantee to reasonable time for the supply of services.
2. The Appellants knew and accepted that the Respondent would give priority to insurance work over the refurbishment of this vehicle. In addition, the vehicle was removed from the Respondent's premises from time to time for the mechanical and electrical work to be carried out contributing to delay.
3. The Appellants have not shown that they suffered loss as a result of this delay and therefore no cause of action is made out in this regard.

1. In this case the Appellants have also not demonstrated that they suffered loss as a result of the failure on the part of the Respondent to provide an itemised bill.

(1) The Appellants were in contract not liable to pay to the Respondent monies claimed in excess of $20,000;

(2) Alternatively, by reason of the misleading and deceptive conduct in contravention of s 18 of the ACL the Appellants suffered loss or damage for all monies claimed in excess of $20,000 and they have no liability to the Respondent for amounts claimed above that sum;

(3) The Tribunal is empowered under s 79N of the FTA to make an order for relief from payment of money and we propose to make a declaration that the Appellants are relieved of any obligation to pay the Respondent in relation to work carried out on the vehicle in excess of the sum of $4,627 after taking into account the sums already paid by the Appellants. An order to that effect will issue.

1. The parties will be given the opportunity to address the question of costs of the appeal.
2. In the event that the Appellants are entitled to costs allowance will be made to offset those costs against the sum of $4,627.00 which they are liable to pay.
3. The Tribunal is only entitled to award costs in relation to the proceedings if it is satisfied that there are special circumstances warranting an award of costs.

(1) To the extent necessary, leave to appeal is granted.

(2) The orders made on 31 October 2024 are set aside and are replaced with the orders below.

(3) Pursuant to s 79N of the Fair Trading Act there be a declaration that the Appellants are relieved of any obligation to pay the Respondent in relation to work carried out on the Morris Minor utility, vehicle body number 133954352, serial number 6315 any sum in excess of the amount of $4,627, such amount only due and payable following the determination and quantification of costs, if any.

(4) The Respondent and/or her contractor is to deliver up the vehicle to the Appellants at a time and date suitable to the Appellants and/or their contractor together with all body and parts of the vehicle in their possession not attached to the vehicle and the parties must liaise and cooperate with each other in order to facilitate the compliance of this order.

(5) The stay of order (1) in matter 2022/00408760 made on 28 November 2024 is cancelled.

(6) Any submissions on costs are to be filed and served by the Appellants within 14 days of the publication of these reasons.

(7) The Respondent may respond within 21 days of the publication of these reasons.

(8) The Appellants may reply within a further 7 days.

(9) In the event that the Appellants are entitled to costs, any amount payable may be offset against the sum of $4,627 the subject of order (3).

(10) Submissions are to include whether the parties consider that the issue of costs may be determined on the papers in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013.

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.