Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ACS Equip Pty Ltd v Richards [2021] NSWCATAP 253 Hearing dates: 20th July 2021 Date of orders: 30 August 2021 Decision date: 30 August 2021 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President I Coleman SC ADCJ, Principal Member Decision: Appeal dismissed Catchwords: APPEAL-consumer claim-services concerning redevelopment of a bore to produce water-independent expert report-no weight given to opinion of a director of appellant-rejection of "no evidence" ground-failure to warn of risk that service might not reasonably be expected to achieve intended outcome-Australian Consumer Law-s60 and s61. Legislation Cited: Civil and Administrative Tribunal Act (2013) (NSW) Evidence Act 1995 (NSW) Australian Consumer Law Cases Cited: Resource Pacific Pty Ltd v Wilkinson (2013) NSWCA 133 Edwards v Noble (1971) 125 CLR 296 Di Pietro v Hamilton (unreported, NSW Court of Appeal, 6 September 1990 Fox v Percy (2003) HCA 22, 214 CLR 118 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Duncan v Independent Commission Against Corruption (2016) NSWCA 143 Minister for Immigration and Citizenship v Li Lo v Chief Commissioner of State Revenue (2013) NSWCA 180 Wickremeratne v Dr Ina Van der Merwe t/as Balgowlah family Practice (2021) NSWCATAP 161 Scenic Tours Pty Limited v Moore (2018) NSWCA 238 at 332 Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) HCA 13, 205 CLR 1, at 90 IW v City of Perth (1997) HCA 30, 191 CLR 1 Category: Principal judgment Parties: ACS Equip Pty Ltd (Appellant) John Richard, Carol Richard & Geoffrey Richard (Respondents) Representation: Counsel: A D Crossland (Appellant) N J Simpson (Respondents) Solicitors: Foulsham and Geddes (Appellant) Hannaford Cox Connellan and McFarland (Respondents) File Number(s): 2021/00094852 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 14 March 2021 Before: G Sarginson, Senior Member File Number(s): GEN20/48329 REASONS FOR DECISION Background 1. By a Notice of Appeal filed 6 April 2021 ACS Equip Pty Limited (ACN 161 876 142) ("ACS") appealed against a decision of the Consumer & Commercial Division of the Civil & Administrative Tribunal ("the Tribunal") made on 14 March 2021 ("the Decision") in proceedings between ACS and the Respondents, John Richard, Carol Richard and Geoffrey Richard ("the Richards"). The Tribunal decided that the Richards were not obliged to pay to ACS the sum of $16,228.65 claimed by ACS for the redevelopment of a water bore on rural land owned by the Richards. ACS seeks that, in lieu of the orders made by the Tribunal, it be declared that the Richards pay to ACS $16,228.65 as per the Tax Invoice issued by ACS on 11 October 2019. On 22 April 2021 the Richards filed a Reply to the appeal by ACS, seeking the dismissal of the appeal and costs. 2. The written material before the Appeal Panel comprised: 1. witness statement of John Richard dated 5 March 2020 in support of the case by the Richards; 2. witness statement of Geoff Richard dated 17 March 2020 in support of the case for the Richards; 3. witness statement of Luke Woods dated 24 April 2020 in support of the claim by ACS; 4. witness statement of Luke Woods of 29 May 2020 in further support of the claim by ACS; 5. expert report of Stan Gricks dated 11 January 2021 in support of the case for the Richards; 6. the Tribunal's decision of 14 March 2021 and reasons for such decision; 7. the Appellant's Notice of Appeal, together with grounds of appeal; 8. Outline of Submissions filed on behalf of ACS on 27 May 2021, together with Amended Grounds of Appeal; 9. Outline of Submissions filed on behalf of the Richards on or about 18 June 2021; 10. Outline of Submissions of the Respondent filed on behalf of the Richards on or about 21 July 2021, albeit referred to as "Applicants' Outline of Submissions", in opposition to the appeal by ACS. 1. The Appeal Panel heard concise and helpful oral submissions by counsel for each of the parties on 20 July 2021, at which time the decision of the Panel was reserved. For the reasons set out below, the Appeal Panel will dismiss the appeal by ACS. Sensibly in our view, having regard to the provisions s60 of the Civil and Administrative Tribunal Act (2013) (NSW) ("the NCAT Act") which govern costs in the appeal, Counsel for each party informed the Panel that no order for costs would be sought, irrespective of the outcome of the appeal. Background 1. The background to the appeal is not in contest, and is succinctly recorded in the reasons of the Tribunal (paragraphs 7 to 21). ACS at all relevant times carried on business providing professional services, including the redevelopment and repair of water bores. At all relevant times the Richards owned and operated a rural property in the Central West of New South Wales. The transactions between the parties were predominantly conducted between Mr Luke Woods, a Director of ACS, on its behalf, and Mr John Richard on behalf of the Richards. 2. In early September 2019 Mr John Richard contacted ACS requesting an attendance at the Richards' farm, and the inspection of a water bore on the farm which was not operating effectively. Pursuant to that invitation, on 16 September 2019, ACS attended the Richards' property, and inspected the bore by inserting a camera into the bore, and assessing the information which was thereby obtained. ACS rendered an account with respect to the inspection. There is no issue that the Richards paid ACS for the inspection on 16 September 2019. 3. On 16 September 2019 ACS also provided the Richards with a "P2 Bore Assessment Report" which contained a number of "recommendations" with respect to measures to be taken so that the bore would "operate at full capacity". All but one of the recommendations made by ACS was accepted by the Richards on 20 September 2019. It is not suggested that the deletion of that item of work assumes relevance for present purposes. 4. ACS performed works as set out in its quotation of 16 September 2019 (other than the items agreed not to be performed) on 8 October 2019. There is no dispute that ACS did the work that the agreement provided that it would do. Nor is there any dispute that the works performed by ACS did not result in any improvement in the operation of the bore. 5. On 10 October 2019 ACS provided a post-work inspection report to the Richards. That report concluded with the words "no recommendations required". 6. On 11 October 2019 ACS issued a Tax Invoice for the services performed by it in the sum of $16,228.65. The Richards refused to pay the account, on the basis that the redevelopment of the bore pursuant to the works performed by ACS had not made any improvement to the operation of the bore. 7. The Tribunal summarised the critical factual controversy which required adjudication in the following terms: "In essence, Mr John Richard asserted that he would not pay for the services provided when they had not successfully "redeveloped" the bore so that it was working at full capacity. Mr Woods responded by asserting that there was a "design flaw" in the bore which was caused by the driller who had originally sunk the bore. There was no mention of this "design flaw" in the reports of the Respondent (ACS) dated 16 September 2019 or 10 October 2019." 1. For reasons which the Tribunal proceeded to reveal, which will be examined in detail later in these reasons, the Tribunal determined that ACS was not entitled to be paid for the work which it had performed pursuant to the agreement of 20 September 2019. The Grounds of Appeal 1. The Amended Grounds of Appeal, and, to the extent that leave to appeal may be required pursuant to s80(2)(b), and cl12 Sch 4 of the NCAT Act, the further proposed grounds of appeal, raise, variously articulated, challenges to the Tribunal's findings with respect to the failure of ACS to warn the Richards that undertaking the development work proposed by it might not result in the Richards' bore operating at full capacity. A number of the amended grounds agitated by ACS, and the matters raised in proposed grounds 8 to 12 overlap to some extent. Central to these challenges are the findings of fact made by the Tribunal with respect to the disputed allegation by ACS that the "design flaw" in the Richards' bore was the cause of the failure of the work done by ACS to improve the performance of the bore, was only discoverable after ACS had performed the work. As the Tribunal's consideration of issues arising pursuant to the provisions of the Australian Consumer Law (2010) (NSW) ('the ACL") was in reliance upon its findings of fact with respect to that issue, it is convenient to consider challenges to those findings before considering challenges to the Tribunal's decisions pursuant to the ACL. Challenges to the findings of fact of the Tribunal with respect to the time at which the risk that the work recommended by ACS might not have been reasonably expected to result in the Richards' bore operating at full capacity 1. The Tribunal engaged in detail with this issue in its reasons. The Tribunal identified the issue as whether the Richards made known "expressly or impliedly" to ACS the "result" which they wished to achieve (paragraph 42). It was not in issue that the redevelopment work undertaken by ACS did not make any difference to its capacity or ability to produce water (paragraph 43). The Tribunal accepted that the Richards were relying upon the skill or judgement of ACS to advise whether the bore could be successfully redeveloped, and to perform works to achieve the result which they wished to achieve (paragraph 44). None of these findings is challenged in this appeal. 2. The Tribunal also recorded, uncontroversially, that the report from ACS of 16 September 2019 referred to "redevelopment operations prior to recommissioning in order to allow the bore to operate at its full capacity" (paragraph 47). It is not in issue that ACS's quotation, as accepted by the Richards, was the whole of, and governed the parties' agreement. 3. The Tribunal found, again uncontroversially, that the Richards made known to ACS, prior to works being performed, that the work was to achieve "the result of the bore operating at its full capacity" (paragraph 48). The Tribunal then posed the question "Were the services provided by the Respondent (ACS) of such a nature, and quality, state or condition that they might reasonably be expected to achieve that result?" (paragraph 48). 4. The Tribunal then referred to the expert report of Mr Stan Gricks, which was received into evidence without objection. Mr Gricks is a Drilling Consultant and Contractor, holding relevant sub-artesian and artesian drilling licences. Mr Gricks' expertise was not in contest. Neither Mr Gricks nor any other witness was cross-examined before the Tribunal. The Tribunal referred to Mr Gricks' criticisms of the manner in which ACS performed the work in a number of respects (paragraph 49), none of which criticisms assumed significance in the Decision of the Tribunal, or assumes significance in the appeal. 5. The evidence of Mr Gricks that the inspection report of 16 September 2019 "implies that the bore may not have been constructed as well as it could have been", and his agreement with Mr Woods that there was a "design flaw" in the bore (paragraph 50) were recorded to by the Tribunal. Mr Gricks' evidence, to which the Tribunal referred (paragraph 51), was that "from the first inspection of the bore that it should have been easy to make the decision that there was no benefit to be gained from a rehabilitation point of view". Mr Gricks was critical of the rehabilitation method that was used. As noted above, that criticism did not assume significance in the Decision of the Tribunal, and does not assume significance in the appeal. 6. The Tribunal recorded Mr Woods' assertion that the pre-existing "design flaw" in the bore was "not evident until after the redevelopment had completed and therefore could not be known from the outset" (paragraph 52). The critical factual controversy was thus identified by the Tribunal. There is no issue that the Tribunal did so accurately. 7. The Tribunal recorded that it gave "significant weight to the independent opinion of Mr Gricks" (paragraph 53), but that it "did not place any weight upon the opinion of Mr Woods" that the "design flaw" in the bore could not reasonably have been identified on 16 September 2019 (paragraph 54). The Tribunal gave reasons why it so found. Although nothing ultimately turns on it, in a case in which there were only two opinions, which were diametrically opposed, properly understood, the Tribunal can be seen as having effectively "preferred" the evidence of Mr Gricks to that of Mr Woods, for the reasons it recorded. 8. The Tribunal found that the quality of the services provided by ACS "might not have been reasonably expected to achieve the result of the bore operating at full capacity", but that ACS should have disclosed in its report and recommendations of 16 September 2019 that "either the bore had a design flaw (and redevelopment was therefore, pointless and not recommended) or that there was a real risk that the redevelopment work proposed may be unsuccessful" (paragraph 55). Those findings were pivotal to the Richards' success pursuant to the ACL. 9. The evidence of Mr John Richard that the Richards would not have engaged ACS to redevelop their bore if they had known that a "design flaw" meant that it could not be successfully redeveloped was accepted by the Tribunal (paragraph 56). That finding is not challenged in this appeal. 10. Before engaging with this group of grounds, it is convenient to address ground 6(a) of the Amended Grounds of Appeal. The ground asserted that the Tribunal's "finding that Mr Woods' evidence was untruthful was a finding made without evidence, was made on the basis of purported reasoning that was not logical, and was not procedurally fair". Counsel for ACS confirmed that this ground was in substance a challenge to a "credibility" finding made by the Tribunal. The challenge to the Tribunal's findings in reliance upon "credibility" 1. In support of this challenge, ACS asserted that the Tribunal's findings and orders were "purportedly based on the report of Mr Gricks, but also on its rejection of the evidence of Mr Woods" (Outline of Submissions, page 8, paragraph 33). It was further asserted that such rejection was "based in part on a conclusion that Mr Woods' evidence was not truthful". It was further submitted that, by "reaching that conclusion in the absence of having heard Mr Woods' evidence or having heard him being cross-examined, the Tribunal did not give ACS procedural fairness. There was no evidence for the conclusion. The decision-making process was not rational". 2. In our view, this challenge misconceives what the Tribunal found, and the basis of its Decision with respect to the competing evidence of Mr Gricks and Mr Woods. Neither expressly nor impliedly in our view did the Tribunal find the evidence of Mr Woods to be "untruthful". The Tribunal afforded Mr Woods' evidence no weight after considering that evidence, as its reasons confirm (paragraph 54). Implicit in so doing was its acceptance that Mr Woods' evidence was truthful, or, at least, not untruthful. 3. Although the Tribunal referred to "significant weight" and "no weight" with respect to the evidence of Mr Gricks and Mr Woods respectively, the reality is that, where there were two diametrically opposing opinions, in the absence of a reason to reject both, the Tribunal had to ultimately, or it was open to, "prefer" one over the other. It is apparent from the Tribunal's reasons (paragraphs 53 and 54) that it did have regard to the evidence of Mr Gricks and Mr Woods, and gave their evidence proper, genuine and realistic consideration as it was required to (Resource Pacific Pty Ltd v Wilkinson (2013) NSWCA 133). 4. It is not in contest that neither party sought to cross-examine any witness during the hearing in the Tribunal. Nor is it suggested that the Tribunal expressly or impliedly indicated that cross-examination would not be permitted. In the absence of cross-examination being requested, and refused, there is no procedural unfairness in the manner in which the Tribunal dealt with this evidence. It is also, in our view, clear from the findings of the Tribunal identified earlier (paragraphs 53 and 53) that the Tribunal preferred the expert opinion evidence of Mr Gricks to the opinion evidence of Mr Woods for the reasons which it gave, none of which involved any "untruthfulness" on the part of Mr Woods. Had the Tribunal found Mr Woods' evidence to be "untruthful", it is inconceivable that it would not have said so, or considered it in the manner in which it did. We thus do not agree that the ground 6(a) involves a challenge to a finding based on credibility. 5. That being so, although we are empowered to substitute our view of the facts for this challenge to succeed, ACS would need to establish that the critical finding made by the Tribunal was "wrong" (Edwards v Noble (1971) 125 CLR 296, per Barwick CJ, at 304). Nothing to which we have been referred persuades us that the Tribunal was wrong in accepting Mr Gricks' opinion over that of Mr Woods. The Tribunal revealed why it preferred Mr Gricks' opinion to that of Mr Woods. Its reasons for doing so were logical, and supported by underlying facts which were not in issue. Our conclusion that this challenge fails has obvious implications for the potential success of other grounds. 6. If we are wrong, and the critical finding made by the Tribunal was based on credibility, that would not change our conclusion with respect to this ground. To successfully challenge a finding so made, the appellant would need to demonstrate that the Decision was not reasonably open to the Tribunal, or was "palpably wrong or clearly incompatible with objectively established facts" (Di Pietro v Hamilton (unreported), NSW Court of Appeal, 6 September 1990, Fox v Percy (2003) HCA 22, 214 CLR 118). For the reasons recorded above, we are not persuaded that appealable error with respect to a credibility finding has been established. 7. Our conclusion with respect to ground 6(a) largely removes the underlying basis of ground 2, which asserted that there was "no evidence for, or the tribunal conducted itself in an irrational way in respect of (a) the Tribunal's finding that the "quality of the services supplied by the Appellant" might not have been reasonably expected to achieve the result of the bore operating at full capacity and in finding that "this was a matter known to the Appellant before it undertook the works and the Appellant should have warned the Respondents" 8. In our view, the finding complained of at paragraph 55 of the Tribunal's reasons was open to the Tribunal. As the Tribunal made clear, its preference for the evidence of Mr Gricks to that of Mr Woods resulted in findings that ACS knew, or should have known, that the work which it was to perform might not have been reasonably expected to achieve the result of the bore operating to full capacity, and that, in those circumstances, it should have warned the Richards of that likelihood. It is not in dispute that ACS at no time warned the Richards that the work might not result in the bore being returned to operating at full capacity, or otherwise qualified its recommendations of 16 September 2019 with respect to recommissioning in order to allow the bore to operate at full capacity. 9. Nothing to which we have been referred demonstrates that the findings of the Tribunal with respect to the evidence of Mr Gricks and Mr Woods were wrong. Nor, on the evidence, did the Tribunal err in finding that ACS should have warned the Richards that it might not have been reasonably expected that the work ACS would undertake would result in the bore operating to full capacity. In circumstances where it is not in dispute that the only reason the Richards sought the services of ACS was to restore their bore to operate at full capacity, ACS could have warned them of that not occurring, thereby placing the onus on the Richards to accept or reject that risk. However, ACS did not do and or say anything to alert the Richards to the risk that the work being undertaken might not have been reasonably expected to achieve the result of the bore operating to full capacity until after the work was completed, and the Richards refused to pay its invoice. 10. Challenges to the Decision of the Tribunal in reliance upon consideration of irrelevant matters and illogical reasoning 11. Ground 6 of the Amended Grounds of Appeal asserted that, whether, in the course of "purporting to determine whether there has been a breach of s60 or s61(2) of the ACL the Tribunal took into account evidence of irrelevant matters or otherwise undertook a reasoning process that was illogical, namely, it considered whether (a) there was a real risk the proposed works would not be successful and (b) the Appellant (ACS) had not warned the Respondent there was a real risk the proposed works would be unsuccessful". 12. With respect to the Appellant, in what manner the Tribunal's reasoning process is said to have been "illogical" has not been identified. As recorded earlier, in our view the process of reasoning of the Tribunal was logical, and adequately exposed. ACS knew that the Richards were engaging it for the purpose of returning their bore to operating at full capacity. ACS did not warn the Richards that the work which was to be undertaken might not have been reasonably expected to achieve that result. The Tribunal's Decision with respect to the legal implications of those findings of fact was logical. Whether it was otherwise legally erroneous remains to be considered. 13. We have not been directed to any fact or circumstance to which the Tribunal had regard in reaching its Decision which we consider was irrelevant. The Tribunal's Decision turned on whether, as Mr Woods asserted, the design flaw which resulted in the bore not operating at full capacity was only discoverable after work was completed, or, as Mr Gricks asserted, should have been apparent before the work was undertaken. For the reasons recorded earlier, we find no error in the Tribunal's preference for Mr Gricks' opinion to that of Mr Woods. The implications of that finding in the context of the ACL are considered later in these reasons. The leave to appeal grounds 1. The substance of the "leave to appeal" grounds (paragraphs 8 to 12) have largely been addressed in the context of dealing with other grounds of appeal. 2. We have earlier dealt with the contentions of the Appellant with respect to the truthfulness or otherwise of Mr Woods' evidence. It is unnecessary to repeat our conclusions in that regard. 3. Proposed ground 8 essentially entails a challenge to the report of Mr Gricks. In his report, Mr Gricks identified the material to which he had been referred and to which he had regard (paragraph 3). Mr Gricks' report was purportedly "based primarily on the content of the bore reports" undertaken by ACS (paragraph 4). Mr Gricks expressed the opinion that there did not "appear to be any marked difference or improvement in the bore following the work done" having regard to the "before and after camera images" in the two bore reports of ACS (paragraph 5). That opinion was not disputed by ACS. Importantly, Mr Gricks recorded that the initial report from ACS "implies that the bore may not have been constructed as well as it could have been", and agreed with Mr Woods that there was a "design flaw in the bore" but suggested that, the question became "why any redevelopment was ever recommended" (paragraph 7). 4. Mr Gricks set out in some detail (paragraphs 8 to 17) a number of asserted deficiencies in the methods adopted by ACS to redevelop the bore, none of which assumed significance in the Tribunal's Decision. As is not in doubt, the critical opinion expressed by Mr Gricks was that "from the first inspection of the bore it should have been easy to make the decision that there was no benefit to be gained from a rehabilitation point of view" (paragraph 18). Although not ultimately directly relevant, the very extensive comments made by Mr Gricks at paragraphs 8 to 17 of his report, in our view, rendered his opinion more readily able to be accepted. 5. Mr Gricks' qualifications abundantly equipped him to express the opinions which he did in his report. In any event, we do not understand there to have ever been any challenge to Mr Gricks' qualifications or experience with respect to the subject matter of the dispute. Mr Gricks was undoubtedly independent. It was relevant for the Tribunal to record, correctly, that Mr Woods had a pecuniary interest in the outcome of the dispute, although that did not mean, and the Tribunal did not find that it meant, that his evidence was in any way untruthful. 6. With respect to the Appellant, the contention at proposed grounds 8(a) to (f) is erroneous. Mr Gricks made clear the basis of his opinion, which was based on his undisputed "specialised knowledge", and source data provided by ACS, consistently with s79 of the Evidence Act 1995 (NSW) (Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588). As the Tribunal's reasons make clear, the critical factual issue was whether the design flaw which resulted in the work not producing the desired result was first evident. For the reasons recorded earlier, we are not persuaded that the Tribunal's finding was flawed in any of the respects advanced by the appellant in proposed grounds 8(a) to (f). 7. Proposed ground 8(g) appears to be an inadequacy of reasons complaint. As our review of the reasons of the Tribunal at the commencement of our reasons makes clear, the Tribunal adequately explained why it decided as it did with respect to the essential factual dispute in the proceedings (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). What more the Tribunal could or should have said by way of exposure of its reasoning process has not been identified. We have earlier rejected complaints by the Appellant in reliance upon findings that Mr Woods failed to give "truthful evidence" (proposed ground 8(h)). We have not been referred to any rule of law or practice which precluded the Tribunal from making a finding in the absence of cross-examination in circumstances where neither party sought to cross-examine any witness. 8. The complaint in proposed ground 8(i) is in our view misconceived. The Tribunal preferred the evidence of Mr Gricks to that of Mr Woods with respect to when the deficiencies in the bore should have become apparent, and, as a consequence, the warning that ACS should have given to the Richards with respect to the risk that the work to be undertaken might not return the bore to operation at full capacity. 9. In view of our rejection of credibility challenges with respect to the evidence of Mr Woods as we have recorded them earlier, it is unnecessary to say more about proposed ground 8(j), save that it lacks merit. 10. The complaints articulated in proposed grounds 9, 10, 11 and 12 have been addressed in the context of our reasons for rejecting earlier grounds, and do not need to be restated. For the reasons we have earlier recorded, we do not accept that the Tribunal's reasoning process was illogical or otherwise vulnerable to appellate challenge. The Tribunal gave proper, genuine and realistic consideration to the evidence of Mr Woods and Mr Gricks. We find no fault in how it did so. 11. The complaint in proposed ground 10 lacks merit. Whilst Mr Woods did assert that the "design flaw in the bore was not evident until after the redevelopment had been completed", it is in our view not insignificant in that regard that the completion report" of ACS of 10 October 2019 made no reference to any design flaw in the bore, concluded with the expression "no recommendations needed", and was first raised by ACS after the Richards refused to pay its invoice. Those circumstances would reinforce the finding of the Tribunal preferring the evidence of Mr Gricks to that of Mr Woods. 12. Proposed ground 11, perhaps inadvertently, referred to the evidence of Mr Woods as "not expert evidence". What we should make of that is unclear. If the evidence of Mr Woods was not "expert", acceptance of the evidence of Mr Gricks, which undoubtedly was "expert", becomes more readily sustainable. Whatever its intent, we find no merit in this complaint. 13. With respect to the Appellant, proposed ground 12 misconceives both the evidence of Mr Gricks and the Tribunal's reasoning in preferring his expert opinion to the opinion of Mr Woods. Nothing in this challenge advances the appeal by ACS. 14. We apprehend that we have thus addressed all of the grounds, or proposed grounds of the Amended Grounds of Appeal, save for ground 1 and the asserted erroneous taking into account of irrelevant matters in the Tribunal's consideration of s60 or s61(2) of the ACL (ground 6). As each of these two grounds address substantially the same legal issues, it is convenient to deal with them conjointly. Our consideration of these challenges necessarily proceeds on the basis that the challenges to underpinning findings of fact relied upon by the Tribunal fail. Challenges to the Decision of the Tribunal pursuant to the ACL 1. Ground 1 of the Appellant's amended grounds asserted that, in determining the proceedings on the basis that "there was a real risk that the redevelopment of the bore would not improve the bore flow", which ACS should have warned of, the Tribunal "applied a wrong test", by failing to apply the test provided by s61(2) and s60 of the ACL, or, in the alternative, "conducted its role irrationally". 2. Ground 6 of the Appellant's amended grounds asserted illogicality and/or taking into account irrelevant considerations in the Tribunal's determination of alleged breaches of s60 or s61(2) of the ACL. The latter complaint reiterated the "wrong test" challenge articulated in ground 1. 3. The Appellant's contentions with respect to "s61(2) wrong test" are outlined at paragraph 25 of its Outline. The Appellant submitted that, at paragraph 55 of its reasons, the Tribunal failed to apply the test created by s61(2) but rather the "following wrong test: whether the quality of the services might not have been reasonably expected to achieve the result of the bore operating at full capacity". It was then asserted that for the purposes of the test in s61(2), the word "might" does not involve a mere possibility but, properly construed, was equivalent to "would". It was thus asserted that the Tribunal applied a test of whether there was a risk that the services would not achieve the result, which involved "a lower bar in respect of what an applicant must prove to establish breach" of the section. 4. The Appellant submitted (paragraph 26) that the Tribunal's use of the expression "real risk" in its reasons in its consideration of ACL issues, at paragraphs 55, 57 and 62 supported its "wrong test" challenges. Those paragraphs relevantly recorded: "55. The Respondent should reasonably have disclosed…that there was a real risk that the redevelopment work proposed may be unsuccessful. … 57. Accordingly, by recommending that the bore be redeveloped and not warning the applicant that here was a real risk that he proposed works would be unsuccessful, the respondent has breached s61(2) of the ACL, irrespective of whether or not the manner of performing the redevelopment work was deficient: and irrespective of whether there were departures from "standard industry practice" as identified by Mr Gricks. … 62. The Tribunal is satisfied that the applicant's (sic) failure to inform the respondent (sic) in its inspection report and recommendations of 19 September 2019 that there was a design flaw in the bore, or in the alternative that there may be a design flaw, or that there was a real risk that the redevelopment may be unsuccessful, constitutes a breach of s60 of the ACL. As Mr Gricks opines, it should have been "easy" for a professional exercising due care and skill to inform the applicant on 16 September 2019 of the real risk that the proposed redevelopment of the bore may be unsuccessful." 1. The Appellant further asserted that, in the context of its consideration of s61(2), the Tribunal failed to provide an "intelligible justification" for its Decision, in reliance upon Duncan v Independent Commission Against Corruption (2016) NSWCA 143 ("Duncan"). It is convenient to address this complaint before considering the "wrong test" complaint advanced by the appellant. 2. After referring to Minister for Immigration and Citizenship v Li (2013) HCA 18, 249 CLR 332, Beazley P, with whom Bathurst CJ agreed, said that "the power conferred on a decision-making authority must be exercised according to law and to reason and within the limit of the subject matter, scope and purpose of the statute" was "consistent with the proposition that a decision on factual matters essential to the making of a finding by a decision-maker…can be reviewed on the basis that the reasoning which led to the decision was irrational or illogical irrespective of whether the same conclusion could be reached by a process of reasoning which did not suffer from the same defect". 3. The Appellant's "irrationality" complaint is encapsulated in its submissions (paragraphs 27 and 29) that there was no "rational connection" between the test applicable or applied with respect to s61(2) of the ACL and "an enquiry into whether ACS warned JR about a risk of failure of the redevelopment of the bore". 4. Nothing to which we have been referred persuades us that this challenge has merit. In our view, the Tribunal's reasons reveal a logical and rational basis for its decision, which was informed by its consideration of relevant facts and circumstances as found by it. Nor are we persuaded that the Tribunal took into account, or considered irrelevant facts or circumstances in reaching its decision. In our view, the process by which the Tribunal reached its decision is not vulnerable in accordance with Duncan, or on any of the grounds discussed by Basten JA in Lo v Chief Commissioner of State Revenue (2013) NSWCA 180, at 9 to 23. 5. The Respondents referred to the decision in Wickremeratne v Dr Ina Van der Merwe t/as Balgowlah family Practice (2021) NSWCATAP 161 ("Wickremeratne"), and submitted in reliance upon it (paragraph 32) that the Richards were required to prove in the Tribunal that the services were provided to it by the appellant in trade or commerce, which requirement has never been in dispute, and that the Richards made known, expressly or impliedly, the result that was sought in relation to the services to be provided by ACS, which again is not in dispute was established. 6. The crux of the submissions on behalf of the Respondents with respect to this challenge was that: "34 By accepting the evidence of Mr Gricks, the Tribunal committed no error by stating at [55] that the advice failed to disclose that the wished achievement could not have been achieved or that there was a risk that the desired outcome would not follow. The finding is a direct reflection of the statutory test as outlined above. The Tribunal did not, as it were, "lower the bar for the purpose of s61(2)". Rather the reasons (at [55]) reflect a central focus on the expression "might reasonably be expected to achieve that result" and, thereafter exposes the ways in which the guarantee as concerns the provision of the advice and subject works failed to achieve such an outcome. The use of the expression "real risk" throughout does not detract from the correctness of the analysis." 1. It is necessary to consider the challenges to the Tribunal's consideration of s60 of the ACL. Again, rather than paraphrase, it is convenient to set out the concise submissions on behalf of the Appellant in relation to this issue. They are found at paragraph 32 of the appellant's written submissions. Pivotal to the success of the Appellant's s60 ACL challenge is the tribunal's asserted "wrong test", and assertedly erroneous importing into s60 of the irrational and illogical requirement of "warnings about 'real risk"'. The Appellant submitted s60 was concerned solely with 'the quality of services", rather than the giving of warnings about risks in relation to those services. 2. The Respondent submitted (paragraph 45) that the test under s60 was not applied incorrectly, and that the failure of ACS to advise, as would have been expected, did not satisfy the requirement of "due care and skill" under the section, and that the Tribunal's reference to "real risk" did not displace the statutory test in s60 of the ACL. The respondent disputed the Appellant's irrationality contentions, and reiterated its contention that the Tribunal had not taken into account irrelevant considerations when evaluating the Richards' s60 claim. 3. In its Reasons for Decision the Tribunal set out (paragraph 34) the relevant provisions of sections 60 and 61 of the ACL. Those sections provided: "60 Guarantee as to due care and skill If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill. 61 Guarantees as to fitness for a particular purpose etc. (1) If: (a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and (b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose. (2) If: (a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and (b) the consumer makes known, expressly or by implication, to: (i) the supplier; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made; the result that the consumer wishes the services to achieve; there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result." 1. The Tribunal referred to the definition of "services" in both sections (paragraph 35). There is no issue that ACS agreed to provide "services" within the meaning of that term in the ACL. By reference to the decision in Scenic Tours Pty Limited v Moore (2018) NSWCA 238 at 332, the Tribunal recorded that, under s61 of the ACL, an assessment is made between the services actually supplied and services which could reasonably satisfy the particular purpose the consumer made known (expressly or impliedly to the supplier). Reference to "particular purpose" in s61 was referred to by the Tribunal (paragraph 39). It is not in doubt that the Richards expressly or impliedly communicated the particular purpose for which they were engaging ACS. 2. The Tribunal considered the potential operation of the defence created by s61(3) of the ACL. Counsel for the Appellant made clear in oral submissions that no part of the appeal involved the operation of that section. 3. The Tribunal then exposed its reasoning process with respect to the s61(2) ACL claim. We have earlier referred to the evidence in relation to that topic as recorded by the Tribunal (paragraphs 43 to 54) and, for reasons which we have provided, rejected challenges to the findings of fact there recorded by the Tribunal. At paragraph 55 of its reasons, the Tribunal found that ACS should "reasonably have disclosed in its report (and recommendations) of 16 September 2019 that either the bore had a design flaw (and redevelopment was therefore, pointless and not recommended) or that there was a real risk that the redevelopment work proposed may be unsuccessful". 4. The crux of the reasoning of the Tribunal in relation to this issue (paragraph 57) records that "by recommending that the bore be redeveloped and not warning the Applicant that there was a real risk that the proposed works would be unsuccessful, the Respondent has breached s61(2) of the ACL, irrespective of whether or not the manner of performing the redevelopment work was deficient; irrespective of whether there were departures from "standard industry practice" as identified by Mr Gricks." 5. The Tribunal's finding with respect to s60 of the ACL is found at paragraph 62 of its reasons, where the Tribunal recorded its satisfaction that ACS' "failure to inform the Respondent in its inspection report and recommendations of 16 September 2019 that there was a design flaw in the bore, or in the alternative that there may be a design flaw, or that there was a real risk that the redevelopment may be unsuccessful, constitutes a breach of s60 of the ACL." The basis of that finding was the Tribunal's acceptance of the evidence of Mr Gricks that it should have been "easy" for a professional exercising due care and skill to inform the applicant on 16 September 2019 of the real risk that the proposed redevelopment of the bore may be unsuccessful. 6. As the submissions for the parties confirm, the Appellant's complaint with respect to s61(2) of the ACL turns on the interpretation of the terms of the guarantee which it created. In view of the Tribunal's reasons for upholding the Richards' s60 ACL claim (paragraph 62), and the basis of the Appellant's challenge to it, our decision with respect to the former issue will be determinative of the complaint with respect to the Tribunal's s61(2) ACL decision. 7. There is no issue that the guarantee created by s61(2) if enlivened is that the services (in this case) "will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result". There is no issue that the Tribunal was able to find the jurisdictional facts pursuant to s61(2)(a) and (b) which were necessary to enliven the guarantee. 8. In Moore v Scenic Tours Pty Ltd (No 2) (2017) NSWSC 733 ("Moore"), at 395, Garling J said with respect to s61(2) of the ACL, that the qualification of the guarantee there created when considering fitness for purpose "shows that not every small lapse or shortfall in the provision of services will result in a breach of the purpose guarantee. A supply of services will not be in breach of such a guarantee unless the services are not reasonably fit for the identified purpose. The use of the term 'reasonably' also introduces an objectively referable measure. It is a qualitative rather than a quantitative one. It requires an overall evaluation of the services provided, and a determination of their fitness for purpose, qualified by the word reasonable". 9. In Moore, Garling J also said, at 407, "whether or not the nature and quality of the services might reasonably be expected to achieve the result is fact dependent". 10. The Tribunal recorded that the "quality of the services might not have been reasonably expected to achieve the result of the bore operating at full capacity". Having preferred, as was open to it, the opinion of Mr Gricks to that of Mr Woods, the Tribunal was entitled to make that finding of fact. It is clear that, having failed to warn the Richards that the services to be provided might not reasonably be expected to achieve the result which they wished to achieve, in either of the terms recorded by the Tribunal at paragraph 55 of its reasons, the Tribunal found that the guarantee had been triggered. 11. We do not accept that, at paragraph 55, or elsewhere in its reasons, the Tribunal applied the "wrong test" with respect to s61(2) of the ACL. Having made no reference in its quotation, or at any time prior to providing the services, to the possibility that the services it agreed to provide might not achieve the result which the Richards wished to achieve, which was known to it, ACS was liable pursuant to the guarantee. Having not raised "risk" with the Richards at any time prior to completion of the services which ACS provided, the extent of the risk that the services might not reasonably be expected to achieve the result desired by the Richards could not operate to defeat the guarantee. 12. For the reasons recorded above, we do not accept that the Tribunal applied the "wrong test" with respect to s61(2) of the ACL, or erred in any of the other ways asserted by the Appellant. As Garling J explained in Moore, determinations of claims pursuant to s61(2) of the ACL are "fact dependent". The Tribunal's critical findings of fact being undisturbed, it was open to the Tribunal to find that, on 16 September 2019, ACS knew, or should have known that there was a real risk that the redevelopment work recommended by it may be unsuccessful. In those circumstances, having chosen not to warn the Richards of that risk, they were entitled to expect that the result which they wished the services to be provided by ACS to achieve would be achieved, and to the benefit of the guarantee. 13. Nor do we accept that the Tribunal applied the "wrong test", or otherwise erred with respect to its interpretation and application of s60 of the ACL. As the Tribunal recorded, at paragraph 41, the requirement of "due skill and care" pursuant to s60 is analogous to the common law duty to take "reasonable care". Having accepted Mr Glicks' opinion in the terms identified by the Tribunal, it was entitled to find that ACS had also breached s60 of the ACL. 14. We are not persuaded that the Tribunal's interpretation of s61(2) or s60 of the ACL was erroneous, either with respect to the "test", if there be one, applicable pursuant to the provisions, or otherwise. Both sections of the ACL are "remedial" (Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) HCA 13, 205 CLR 1, at 90), and thus to be given a "fair, large and liberal" interpretation, rather than one which is "technical or literal" (IW v City of Perth (1997) HCA 30, 191 CLR 1, at 11). The Tribunal's interpretation of the provisions was not "unreasonable or unnatural". Conclusion 1. No ground of appeal or proposed ground of appeal having merit, the appeal will be dismissed. As invited by Counsel for both parties, there will be no order for costs of the appeal. 2. The Tribunal orders: 1. Appeal dismissed. ************ 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 August 2021