Zheng v Fort Coffey Pty Ltd trading as First National Penrith

1. The Tribunal failed to take into account the substantial number of email correspondences initiated by the [appellant], which clearly demonstrate that the Respondent did not make reasonable and sufficient efforts to accommodate the [appellant's] needs.

2. For the [appellant's] claim for losses due to reduced rental income, the Respondent failed to adequately provide evidence detailing rental amounts prior to, during, and post COVID-19 period, thus neglecting to substantiate how figures were affected throughout the aforementioned times.

(2) Sought an order that $17,540.00 be awarded to the appellant for compensation "for the losses incurred due to the respondent's actions and inactions", comprising:

• $1,260.00 for unauthorised roof repairs;
• $2,280 for lost rent of $190.00 per week ($550.00 less $360.00) from March 2022 to June 2022; and
• $14,000.00 for lost rent of $550.00 per week from June 2022 to January 2023 because the property was untenantable because of a failure to repair the roof.

The Tribunal did not adequately consider the weight of the email correspondence between the [appellant] and the Respondent [which] clearly documented the [appellant's] efforts to provide clear instructions regarding the property's maintenance and management [and that] the insufficient weight given to the correspondence has overlooked a key element of evidence in assessing whether the [appellant] provided clear instructions and suffered losses

The [appellant] presented comprehensive evidence, including all relevant email correspondences, tax invoices, and the agency agreement held with the respondent. Despite this, the decision disproportionally focused on the agency agreement and the ledger provided by the Respondent...

(4) Contended that the Decision was not fair and equitable because:

(a) The Tribunal failed to consider or give appropriate weight to documentary evidence, being emails, tax invoices and written instructions relied on by the appellant.

(b) The Tribunal failed to explain why it gave significant weight to the respondent's ledger, but little weight to the Appellant's emails, instructions and invoices.

(c) The Tribunal failed "to apply correct legal standards" to its consideration of the respondent's conduct.

1. Whether raised as a question of law or otherwise in support of a submission that the Decision not fair and equitable or against the weight of evidence so to justify a grant of leave to appeal, the appellant, in summary contends that the primary member:

(1) failed to place sufficient weight on emails, tax invoices and written instructions relied on by the appellant in respect of whether the respondent had followed the appellant's instruction and breached the agreement or its duty of care to the appellant and / or placed too much weight on the respondent's evidence;

(2) failed to give adequate reasons for findings made against the appellant; and

(3) erred in the consideration of the respondent's contractual and / or common law obligations as the appellant's property manager.

1. The appellant appeared for himself by telephone, before his solicitor, Ms Li, appeared in person.
2. Mr Ellison, the respondent's agent, appeared for the respondent.

Case management of the appeal and the documents relied on

1. At a call-over of the appeal on 30 April, the appellant was granted leave to file the Amended Notice of Appeal and directions made for the preparation of the appeal for hearing. The directions included for:

(1) the appellant to lodge with the Appeal Registry and give to the respondent an agreed bundle of documents to be relied on in the appeal, including the relevant documents that were before the Tribunal at first instance and a transcript of the hearing; and

(2) the parties to otherwise lodge with the Tribunal and provide each other, any other documents relied on including submission and documents that were not before the Tribunal at first instance.

1. Thereafter, the appellant lodged with the Tribunal a bundle of documents on 28 May 2025, and, in determining the appeal, we have had regard to the following documents:

(1) The Amended Notice of Appeal lodged on 7 May 2025;

(2) The appellant's documents lodged on 28 May 2025 which included:

(a) 2 pages of submissions;

(b) A 1 page chronology;

(c) A 55 page bundle of email extracts (AB);

(d) 4 pages of tax invoices; and

(e) A copy of the Exclusive Management Agency Agreement between the appellant and the respondent.

1. We were not provided with a transcript of the hearing before the Tribunal, and the respondent did not file a Reply to Appeal or lodge any submissions or other documents in respect of the appeal.
2. We also note that the appellant's documents did not include an affidavit or statement of the appellant's version of events, and none was relied on by the appellant in the hearing before the primary member.

1. An appeal to the Tribunal's Appeal Panel does not provide an unsuccessful party in the Tribunal below with the opportunity to run its case again, nor is it sufficient for an appellant to disagree with the outcome and to contend there should have been a different outcome: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
2. To succeed in an appeal from a decision of the Consumer and Commercial Division, an appellant must demonstrate either an error by the Tribunal on a question of law, which may be argued as of right; or that leave (permission) be granted to bring the appeal for a reason under clause 12(1) of Schedule 4 of the NCAT Act.
3. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law:

(1) Whether there has been a failure to provide proper reasons;

(2) Whether the Tribunal identified the wrong issue or asked the wrong question;

(3) Whether a wrong principle of law had been applied;

(4) Whether there was a failure to afford procedural fairness;

(5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations;

(6) Whether the Tribunal took into account an irrelevant consideration;

(7) Whether there was no evidence to support a finding of fact; and

(8) Whether the decision was so unreasonable that no reasonable decision-maker would make it.

1. The Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25] provided further guidance in relation to what is a question of law. In summary:

(1) A question of law should be articulated with precision;

(2) Absent leave to appeal, the question of law is the subject of the appeal;

(3) A question of law means a "pure question of law" which is not dependent on facts not found and is not dependent on the answer to the question;

(4) A party contending that a question of law was wrongly decided must identify the question in abstract terms;

(5) A mixed question of fact and law is not a question of law, and a question of law must not be hypothetical or arid;

(6) A question of law must be capable of affecting orders the subject of the appeal, not purely the reasons; and

(7) There may be disclosed an error of law but this of itself does not necessarily raise a question of law.

1. Further, and relevant to this appeal, a failure to take into account a "clearly articulated and substantial argument" is a constructive failure to exercise jurisdiction as well as an error of law and so constitutes a question of law: Alexandria Landfill PL v Transport for NSW [2020] NSWCA 165 at [8]- [11]; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [87]- [89]; Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [91].
2. Where the grounds of appeal do not raise a pure question of law, an appellant may seek leave to appeal.
3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division of the Tribunal under s 80(2)(b) of the NCAT Act are limited to those set out in cl 12 (1) of Sch 4 to 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) Cl 12(1)(a) - the decision of the Tribunal under appeal was not fair and equitable; or

(2) Cl 12(1)(b) - the decision of the Tribunal under appeal was against the weight of evidence; or

(3) Cl 12(1)(c) - significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. As explained in Collins v Urban [2014] NSWCATAP 17 at [84], it is not sufficient merely to show that the Tribunal below was arguably wrong or that there is a bona fide challenge to an issue of fact.
2. In Collins v Urban, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12 (1) of Sch 4 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."

1. The Appeal Panel in Collins v Uban further stated at [77] to [79]:

[77] As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, 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" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12].

(2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) 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 - Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].

[78] If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence.

[79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55].

1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4 by any of the reasons set out in cl 12(1)(a), (b) or (c), the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
2. In Collins v Urban, the Appeal Panel stated at [84] that 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.

1. In determining an appeal, s 81 of the NCAT Act provides as follows:

"(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following -

(a) the appeal to be allowed or dismissed,

(b) the decision under appeal to be confirmed, affirmed or varied,

(c) the decision under appeal to be quashed or set aside,

(d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.

(2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance."

(1) Set out (without any evidentiary or Decision paragraph refences) a history of recommendations given by the respondent, instructions given by the appellant, quotes obtained, work performed, and invoices issued in respect of repairs required to the roof over the Premises.

(2) Identified the grounds of appeal as being:

(a) A failure by the primary member to consider or place sufficient weight on emails and invoices relied on by the appellant;

(b) The provision of inadequate reasons for its findings, including the weight given to the respondent's ledger over the appellant's documentary evidence and in respect of the substance of the appellant's claims that he had given instructions to obtain quotes for "roof replacement";

(c) A misapplication of legal principles in respect of the duty of the respondent as the applicant's agent.

1. Relevant to the matters raised on appeal, the primary member's reasons for the decision included the following in respect of the parties' respective positions:

1. Both parties produced written material...including an agency ledger, email correspondence, contractors' invoices, and a managing agency agreement, for the Tribunal to consider.

2. At the outset of today's formal hearing, the parties stated that they had received each other's documents and were now ready to proceed. Nevertheless, during the hearing, but especially in the context of my consideration of the applicant's 233 - page bundle of documents, and my enquiries to him about how he put his case, the applicant asked for more time (i.e. in essence, he sought an adjournment of the proceeding to a later date). It appeared that this was to provide further material and to 'better prepare his case' (or at least, words to that effect) ...

...

5. The applicant seeks a money order against the respondent in an amount of up to $33,237.95 being damages for breach of contract (the managing agency agreement) and / or negligence, i.e. failure to perform services with due care and skill, including not acting in accordance with instructions in respect of repairs of the property and spending the applicants funds without permission: see page 202 of the applicants bundle of documents.

...

9. ... The applicants claim is in respect of damages for breach of contract and negligence. The damages appear to be consequential losses in respect of the respondents management of the various trades who did repairs and maintenance all the applicants South Penrith property. This is in circumstances where the respondent received management fees (approximately $1, 600.00) during the period of the agency agreement from about April 2021 to August 2022.

10. The breaches of agreement and / or negligence alleged are essentially that the respondent did not perform the agency agreement all that it provided management services negligently because it did not manage the trades who performed repairs and because it spent the applicants funds without permission.

11. Part of the applicant submission is that the respondent provided little or no value for its agency services and that the respondents actions (or inactions) are now responsible for the applicant incurring substantial costs and expenses in respect of the South Penrith property.

12. The respondents position...in essence, is that it was not in breach of the agency agreement and was not negligent in the management of the applicant's property and accordingly no damages are payable, and the application should be dismissed. It says that it collected rent from the applicants tenants in the property, that it carried out regular inspections of the property for repairs, maintenance and safety and acted to repair and maintenance matters as soon as practicable. It produced its agency ledger and submitted that no amounts were received or paid out, without the applicants or authority.

13. Further, the respondent argues that the applicant has not substantiated any loss, whether as a matter of causation or as regards quantum, even if (which is denied) there were breaches of the agreement and / or negligence. In particular, the responded submits that the losses are attributable as much to acts or omissions on the part of the applicants part such as not ensuring he gave proper instructions to the trades carrying out work on the property.

1. At paragraphs [14] to [20] the primary member summarised the legal principles relevant to the appellant's breach of contract and negligence claims and at [21] found that the respondent owed a duty of care to the applicant and, in respect of the duty of care stated that:

As to the nature and scope of such duty of care, in making findings of fact as to any breach or breaches of duty, I am guided and informed by the terms and conditions of the parties' management agency agreement dated 6 April 2021 (the agreement).

1. In determining the claim, the primary members reasons include the following:

22. As to the applicants contentions regarding breach of the agreement and the duty of care, I find that the respondent complied with his obligations under the agency agreement to provide management services and there was no breach of its duty of care to the applicant in the provision of those services during the period of the agreement (i.e. From in or about April 20212 in or about August 202 two I am not persuaded by the applicant's arguments regarding a failure of consideration in respect of the amounts of management fees received under the agreement it cannot be said that the applicant, objectively, received little or no value for the services provided.

23. In respect of the case regarding failure to carry out instructions in respect of repairs and maintenance, I do not accept the applicant's evidence that the respondent did not act in accordance with his instructions. Other than the applicant's assertions now made in these proceedings (lodged about three years after the relevant events), there is no evidence which points to there being an absence of consent. The applicant did not file and serve a statement of evidence and to the extent allegations of lack of consent are now made in oral evidence given at today's hearing, I prefer the evidence of the respondents director, Mr Ellison, who appeared today, which was that he never acted otherwise that in accordance with the applicant's instructions. Nor is there any elucidation in the written and oral evidence of the applicant for today's hearing as to the factual and legal bases of the applicants claim for $33,327.95, or any lesser amount.

24. Those findings as to absence of breach are sufficient to dispose of the applicants claim for damages. However, even if I had been satisfied as to a breach or breaches of the agreement or the duty of care, the evidence was not sufficient in any event to establish causation in either contract or tort. There is insufficient evidence to establish any such breach or breaches caused the loss to the applicant in an amount of $33,237.55 [should read $33, 237.95] or indeed in any lesser amount.

25. ... Ultimately, I conclude that in the absence of findings of relevant breaches of contract and / or negligence or cogent evidence of loss and damage, it is neither fair nor equitable that the respondent be held liable for the amount now claimed by the applicant or any lesser amount.

1. Mindful that the appellant's grounds include a failure to have regard to or place sufficient weight on evidence relied on by the appellant and a failure to provide adequate reasons for preferring the respondent's evidence, having regard to the primary members reasons, the appellant's appeal faces three significantly difficulties.
2. First, as noted by the primary member, the appellant did not rely on a statement of evidence or affidavit setting out the appellants version of events.
3. Secondly, the primary member referred to having considered the appellant's 233 page bundle of documents and found that he preferred the respondent's oral evidence over the appellant's in respect of the appellant's claim that the respondent did not act in accordance with instructions. Yet, despite being directed to, the appellant has not provided a transcript of the hearing before the primary member.
4. Thirdly, the appellant has not appealed the primary members findings that even if a breach of contract or duty had been established, that "There is insufficient evidence to establish any such breach or breaches caused loss to the applicant in an amount of $33,237.55, or indeed in any lesser amount".
5. For those reasons alone, we are not satisfied that the appellant has identified an error on a question of law or that the Decision was not fair and equitable or was against the weight of evidence.
6. For completeness, we will however deal with the matters raised by the appellant in oral submissions.
7. In oral submissions, the appellant's solicitor referred in a general sense to email correspondence which it was submitted showed that the appellant explicitly said to the respondent that we both made a mistake about the repair and invoices involved, and more specially referred to an email dated 11 September 2021 at (AB p 41) in which the respondent informed the appellant that:

K&S roofing have attended [the Premises] to address the leaking sky light.

While carrying out these works they identified multiple other issues and have suggested replacing the whole room (sic roof). Please read the description on the attached invoice.

1. Submissions were then made as to why the suggestion to replace the roof at the time had been ignored by the appellant, but which reasons, it was accepted, were not in evidence in a statement by the appellant before the primary member.
2. In our view, the email does not assist the appellant's appeal.
3. The appellant's solicitor then referred to (AB p 6), being an email in July 2022, which was submitted to be an attempt by the appellant to get a quote for a new roof. We were not however taken specifically to any words of instruction in the email that it is said were an instruction that the respondent failed to comply with and are not satisfied that the email is evidence of an instruction to replace the roof which the respondent failed to comply with.
4. The appellant's solicitor also submitted that the primary member failed to consider evidence (from pages 11 to 41 of AB) that the appellant had explicitly instructed the respondent to obtain a full new roof and that the respondent had ignored the appellant's request for months. When directed to identify the pages in the appellants bundle the primary member did not take into account, the appellant's solicitor referred to pages 3, 10, 11 and 23 of the appellant's bundle.
5. In the absence of a transcript and mindful of the primary member's reference in the reasons for decision to consideration of the appellant's 233-page bundle of documents (see paragraph [2] of the Decision) and the primary member's more specific reference to page 202 ( see paragraph [5] of the Decision) in respect of the issues of not acting in accordance with instructions and spending the appellant's funds without authority, we are not satisfied that the primary member did not have regard to the material relied on by the appellant at first instance. In any event, we are not satisfied that the referred to pages 3,10,11 and 23 evidence the giving of instructions which the appellant submits were given or a failure to follow instructions.
6. Lastly the appellant's solicitor:

(1) referred to:

(a) paragraph [12] of the Decision, in which the primary member recorded that the respondent says:

"that it collected rent from the applicants tenants in the property, that it carried out regular inspections of the property for repairs, maintenance and safety and acted to repair and maintenance matters as soon as practicable. It produced its agency Ledger and submitted that no amounts were received or paid out, without the applicants or authority.

(b) the primary member (at [23] of the Decision) preferring the evidence of the respondent's director, Mr Ellison over the appellant; and

(c) the primary member's acceptance of the respondent's ledger; and

(2) submitted to the effect that those matters reflected an imbalance in the consideration of the evidence, and that greater weight should have been given to the appellant's evidence in considering the appellant's claim that the respondent did not act in the appellant's best interest and obtain authority before incurring expenses.

42 In the absence of transcript or any written record of the appellant's evidence, we are not satisfied of any error by the primary member in the consideration of the appellant's and the respondent's evidence, and the weight given to that evidence. In our view, on the material before us, it was open to the primary member to prefer the evidence of the respondent's director and place weight on the respondent's ledger.

1. Save for generally noting to the effect that the primary member did not have proper regard to the terms of the agency agreement (without pointing to any particular term) when considering the breach of duty claim, the appellant did not press that there had been a misapplication of legal principles governing agency duties.
2. For the foregoing reasons, we are not satisfied that that the primary member erred in respect of a question of law, and in so far as leave to appeal is sought, to use the words in Collins v Urban (as noted above) we are not satisfied that the appellant "[has] been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved" and has therefore "suffered a substantial miscarriage of justice" because the decision was not fair and equitable or because the decision was against the weight of the evidence.
3. The Appeal Panel orders:

(1) To the extent the appeal raises questions of law, the appeal is dismissed.

(2) Leave to appeal (to the extent that leave is required) is refused.

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.