Bartho v Onsite Trade Services Pty Ltd [2022] NSWCATCD 112

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bartho v Onsite Trade Services Pty Ltd [2022] NSWCATCD 112 Hearing dates: 9 March 2022 and 4 May 2022 Date of orders: 12 July 2022 Decision date: 12 July 2022 Jurisdiction: Consumer and Commercial Division Before: P French, Senior Member Decision: (1) Onsite Trade Services Pty Ltd must pay Catherine Batho $16,125.00 immediately. Catchwords: CONSUMER LAW – Misleading and deceptive conduct – "likely" to mislead or deceive Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Contracts Review Act 1980 (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 Jones v Dunkel (1959) HCA 8 Texts Cited: Nil Category: Principal judgment Parties: Catherine Bartho (Applicant) Onsite Trade Services Pty Ltd (Respondent) Representation: R Wilcher (Applicant) T Nguyen (Respondent) File Number(s): GEN 21/49317 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. This is an application by Catherine Bartho (the consumer) for an order that would require Onsite Trade Services Pty Ltd (the trader) to pay her $16,125.00 which she claims to have been overcharged by the trader for plumbing work it carried out at her residential property. The consumer has stated her case for relief pursuant to the terms of the Contracts Review Act 1980 (NSW), but in the circumstances of this case, only a "Court" can grant relief under that Act. The Tribunal is not a Court for the purposes of that Act: s 4. I have therefore dealt with the application as a consumer claim within the meaning of Part 6A of the Fair Trading Act 1987 (NSW) (FT Act). This application was made to the Tribunal on 2 December 2021 (the application). 2. For the reasons set out following I am satisfied that the contract for the provision of the plumbing services must be set aside on the basis that the consumer was induced into it by the trader's misleading and deceptive conduct, contrary to s 18 of the Australian Consumer Law (NSW) (ACL(NSW)). In this respect the trader falsely represented to the consumer that the second stage of plumbing work was essential and had to be done on an emergency basis to clear a blockage in her sewer. Neither was true. The loss the consumer suffered as a result of the trader's misleading and deceptive conduct was the amount she paid the trader for the work that was manifestly in excess of the commercial value of the work performed. I have ordered the trader to repay the consumer that amount.