Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Perry Properties Pty Ltd v Fire and Rescue NSW, Perry Properties Pty Ltd v Fire and Rescue NSW [2023] NSWCATCD 18 Hearing dates: 13 February 2023 Date of orders: 21 February 2023 Decision date: 21 February 2023 Jurisdiction: Consumer and Commercial Division Before: G Ellis SC, Senior Member Decision: In GEN 22/42741 1. The applicant is to pay the second respondent $1,688 immediately. 2. As against the first respondent, the application is dismissed. In GEN 22/43753: 1. The applicant is to pay the second respondent $1,776 immediately. 2. As against the first respondent, the application is dismissed. Catchwords: CONSUMER CLAIM - Misleading and deceptive conduct - whether representation adopted or endorsed - whether reliance on representation CONSUMER CLAIM – Order for payment of specified amount where applicant contended that amount was not payable Legislation Cited: Australian Consumer Law, s 18 Competition and Consumer Act 2010 (Cth) - Sch 2 Fair Trading Act 1987 (NSW) – ss 28, 79D, 79E, 79F, 79I, 79K, 79L, 79N, 79O, 79U Fire and Rescue NSW Act 1989 – ss 11(1), 42(1)(e), 42(1A), 79A Cases Cited: Buses and 4WD Hire Pty Limited v Richardson [2016] NSWCATAP 24 Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd [2009] HCA 19 Google v Australian Competition and Consumer Commission [2013] HCA 1 Texts Cited: None cited Category: Principal judgment Parties: In GEN 22/42741: Applicant – Perry Properties Pty Ltd First Respondent – Fire and Rescue NSW Second Respondent – Romteck Grid Pty Ltd In GEN 22/43753: Applicant – Perry Properties Pty Ltd First Respondent – Fire and Rescue NSW Second Respondent – Tyco Australia Group Pty Limited Representation: Counsel: Perry Properties Pty Ltd – A Gauja Romteck Grid Pty Ltd – J Fennel Solicitors: Fire and Rescue NSW – J Perkins Tyco Australia Group Pty Ltd – S Sene-Aelua File Number(s): GEN 22/42741, GEN 22/43753 Publication restriction: Nil Reasons for decision Outline 1. Two applications, raising the same issue, were heard together. Each application was lodged by an owner of a boarding house, Perry Properties Pty Ltd (Perry). In each application, the first respondent was Fire and Rescue NSW (F&R), and the second respondent was a fire alarm service provider. The first application (GEN 22/42741) related to a 23-room boarding house in Petersham for which the service provider was Romteck Grid Pty Ltd (Romteck), while the second application (GEN 22/43753) related to a 34-room boarding house in Glebe for which the service provider was Tyco Group Australia Pty Limited, trading as ADT Fire Monitoring (Tyco). 2. The issue in each application was whether Perry should be required to pay the service provider amounts resulting from a charge imposed on them by F&R for responding to a false fire alarm at a boarding house owned by Perry. The Tribunal determined that Perry had not established its claim it should not be required to pay the disputed amounts. As a result, orders for Perry to pay those amounts to the service provider were considered appropriate and, as against F&R, the applications were dismissed. Hearing 1. After noting the appearances, the documents upon which the parties relied were either admitted as evidence or marked for identification as follows, including an indication of which party submitted each document: Exhibit A Affidavit of Vince Perry, 31 October 2022 Perry Exhibit B Affidavit of Tim Duggan, 8 November 2022 Perry Exhibit C Statement of Sean Joseph, 11 November 2022 Romteck Exhibit D Affidavit of Vince Perry, 8 November 2022 Perry Exhibit E Statement of Johnathon Perkins, 6 December 2022 F&R Exhibit F List of "Submissions received for Draft Report" Perry Exhibit G Draft IPART report, December 2021 Perry Exhibit H Affidavit of Tim Duggan, 8 November 2022 Perry MFI 1 Submissions as to jurisdiction Romteck MFI 2 Submissions as to jurisdiction F&R MFI 3 Submissions as to jurisdiction F& R 1. Four witnesses provided evidence: Mr Perry and Mr Duggan for Perry, Mr Perkins for F&R, and Mr Joseph for Romteck. However, only Mr Perry and Mr Joseph were cross-examined. 2. Following that cross-examination, an opportunity was provided for closing submissions, following the usual sequence of applicants then respondents followed by the applicant in reply so that each party was able to speak both in support of their own case and in response to the case put against them. Jurisdiction 1. In MFI 1, Romteck contended that Perry had not invoked the Tribunal's jurisdiction because its case did not constitute misleading or deceptive conduct but that is a matter going to whether Perry has established a cause of action rather than whether the Tribunal has jurisdiction to consider the application. 2. In MFI 2 and MFI 3, which were in the same terms, F&R contended that Perry had not sought any order against F&R but that that is a matter going to whether Perry is entitled to any relief against F&R rather than whether the Tribunal has jurisdiction. It was also submitted that Perry could not obtain relief because F&R was not a party to the contract between Perry and its service provider. However, the definition of "consumer claim" in s 79E of the Fair Trading Act 1987 (NSW) (the FTA) is as follows: (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. From s 79E(1), it is sufficient for there to be a supply to a consumer under either a contract or a collateral contract and while Perry has a contract with its service provider, there is a collateral contract between that service provider and F&R. 2. Further, from s 79E(2), a consumer may make a claim against not only the supplier but also against a supplier who is not the direct supplier. Accordingly, Perry can maintain proceedings against F&R either because it was a direct supplier, in that it provided a response to the fire alarm, or because its services were provided in connection with a supply by the service provider. 3. It is clear that Perry is a consumer (within section 79D) bringing a consumer claim (within section 79E), for a supply of services (within section 79F), that the supply was made in New South Wales (within section 79K) and that the applicant is not claiming more than the prescribed limit which was $40,000 but has now been increased to $100,000. 4. Section 79L of the FTA limits the time within which a claim can be made and section 79L(1)(a) requires that the cause of action first accrued not more than three years before the commencement of these proceedings. As the events which are the subject of these proceedings occurred on 15 August 2021 and 20 September 2021, and the applications were lodged on 23 and 30 September 2022, these proceedings have been clearly commenced within that time limit. 5. Accordingly, s 79I of the FTA entitles Perry to have its applications determined by the Tribunal. The orders that can be made in favour of Perry include an order declaring that a specified amount of money is not due or owing: s 79N(d). The orders that can be made in favour Romteck and/or Tyco, being respondents, include an order that requires Perry to pay a specified amount of money: s 79O(b). 6. The Tribunal's power to make orders under the FTA is also impacted by s 79U which requires, in s 79U(1), that the Tribunal be satisfied that the orders made will be fair and equitable to all parties and s 79U(2) lists factors to be taken into consideration when making that determination. Relevant law 1. The effect of s 28 of the FTA is that the provisions of the Australian Consumer Law (ACL), which is Schedule 2 to the Competition and Consumer Act 2010 (Cth), became part of the law of New South Wales and apply to these proceedings. 2. In the ACL, s 18(1) provides: A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. 1. One of the many cases that have considered that cause of action is Google v Australian Competition and Consumer Commission [2013] HCA 1 (Google). That case served to confirm what had been established in cases such as Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 and Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd [2009] HCA 19, namely that merely communicating a representation made by another entity, without adopting or endorsing that representation, does not constitute misleading or deceptive conduct. Evidence 1. Mr Perry provided an affidavit in similar form in support of each application. Matters common to both affidavits were that the boarding houses were Class 3 buildings for the purpose of the National Construction Code (NCC) with the result that there is required to be a smoke detection system which is connected to a fire alarm monitoring system which alerts a fire station. The monitoring system is provided by private companies, such as Romteck and Tyco. 2. In his 31 October 2022 affidavit, which related to the boarding house at Petersham, Mr Perry indicated that on 4 April 2018 Perry entered into an agreement with Romteck which included the following provisions to which Mr Perry said he had particular regard before entering into that agreement: 5. Additional fees or charges imposed by the Fire Brigade due to false alarms from the monitored site, attendance at the monitored site or otherwise in relation to the monitored site shall be invoiced by [Romteck] to [Perry] plus ten percent (10%) administration fee and shall be due and payable within 14 days of the date of the invoice. 6. If the Fire Brigades impose false alarm fees or charges then at the request of [Perry] [Romteck] shall assist [Perry] by preparing and lodging with the Fire Brigades an Application to Waive AFA False Alarm Charges but only after any invoice issued in accordance with clause 5 herein has been duly paid by [Perry] to [Romteck]. 1. A copy of Guideline 4, issued by F&R and titled "Application to Waive AFA False Alarm Charges" was provided. Mr Perry's evidence was that, when he read that guideline, his understanding was that Perry would only be liable for false alarms that Perry could have reasonably prevented which he said was based on the initial words under the heading "The Purpose of False Alarm Charges": False alarm charges are fines intended to encourage [service providers] and their Customers to maintain fire alarm systems efficiently and effectively and ensure correct occupant behaviour. 1. Mr Perry said his understanding was that the discretion of F&R was limited by that purpose with the contended result that an application to waive would not be rejected if there was no defect and no behavioural change Perry could make. Further, that his understanding was that Romteck was, by referring to that guideline, adopting the purpose of the fees and that the basis upon which F&R charged Romteck was the basis upon which Romteck would charge Perry. 2. It was Mr Perry's evidence-in-chief that, based on those provisions and his understanding of them, Perry entered the agreement with Romteck. 3. On 15 August 2021 F&R attended the boarding house at Petersham in response to what proved to be a false alarm. Mr Perry said he was alerted by a text message from Romteck and a telephone call from the tenant whose explanation was that, after he had been in the shower for five minutes, the smoke detector alarm went off, which had not previously occurred. 4. A copy of a letter from Mr Duggan, who inspected the fire alarm the next day, was provided. It included the following words: On the 16th August at around 12 noon, I personally attended room 23 for examination and found the smoke detector to be in perfect working order. The room had no fresh air fans as it has windows for fresh air. I conclude that after such examination there is nothing [Perry] or their staff could do to prevent this alarm activation as it was due to humidity and water particles in the air. This is purely a design deficiency of smoke detectors of this kind that [are] required to be installed within class three buildings. Hopefully the fire officer will take these facts into consideration when exercising its discretionary powers within the rules. 1. As a result of this incident, Romteck issued an invoice to Perry dated 2 September 2021 for $1,688, seeking reimbursement of $1,600 paid by Romteck to F&R and charging a 5% administration fee plus GST. On 23 September 2021 Perry sent an email to Romteck, seeking to have that amount waived. Om 23 November 2021 Perry submitted an appeal to F&R which was declined. 2. In this affidavit, Mr Perry indicated that what occurred on 15 August 2021 was not an isolated incident. He said Perry had spent around $10,000 in the last 12 months on false fire alarms caused by matters over which Perry has no control and cannot change. 3. It was noted that the Shopping Centre Council of Australia had raised similar concerns in a submission to an inquiry by the Independent Pricing and Regulatory Tribunal NSW (IPART), and reference was made to what was said to that inquiry by Mr Greck from ACT Fire and Rescue. Mr Perry also noted that Romteck's submission in response to IPART's Draft Recommendations which included the following sentences: Waivers are expensive and time consuming for [the service provider] which has to explain the waiver process to an owner/tenant/property manager wanting to lodge waivers. The [service provider] must then ensure it obtains suitable documentation for waivers before preparing and lodging the waivers. 1. In his 8 November 2022 affidavit, which related to the boarding house at Glebe, on 23 February 2018 Perry entered into an agreement with Tyco which included the following words to which Mr Perry said he had particular regard before entering into that agreement: 3 [Perry] shall: … (b) reimburse [Tyco] upon demand any fee, cost, expense or penalty imposed on [Tyco] by [F&R] as a result of a false alarm caused by the System or any act of [Perry] plus a 10% processing fee. 1. Mr Perry said he also had regard to Tyco's website which states as set out below: False Alarm Charges A false alarm is chargeable when the attending station office deemed the alarrn could have been prevented. For example: If the cause of the alarm was attributed to an activity of an occupant/worker on site. Lack of maintenance of the building. Suspected faulty detectors and so on. The Fire Brigade imposes a fee for a false alarm and the cost varies from state to state. It can range from $250.00 to $1,500.00. As an incentive for customers to reduce their number of false alarms, the Fire Brigade will consider applications for waivers. There are criteria customers must meet in order to be considered. Please contact our office for more information and for an application form. Non Chargeable False Alarms A false alarm is non chargeable when the cause of the alarm can be determined to be beyond the control of the owner, was unforeseen, unpredictable, and where no blame for the activation can be attributed to activity of an occupant at the premises. 1. Again, a copy of Guideline 4, issued by F&R and titled "Application to Waive AFA False Alarm Charges" was provided. Mr Perry's evidence was that, when he read that guideline, his understanding was that Perry would only be liable for false alarms that Perry could have reasonably prevented which he said was based on the initial words under the heading "The Purpose of False Alarm Charges": False alarm charges are fines intended to encourage [service providers] and their Customers to maintain fair alarm systems efficiently and effectively and ensure correct occupant behaviour. 1. Mr Perry said his understanding was that the discretion of F&R was limited by that purpose with the contended result that an application to waive would not be rejected if there was no defect and no behavioural change Perry could make. Further, that his understanding was that Tyco was endorsing and adopting the purpose of the fees, and their correctness, when charging Perry and that, based on those provisions and his understanding of them, Perry entered the agreement with Tyco. 2. On 20 September 2021 F&R attended the boarding house at Glebe in response to what proved to be a false alarm. 3. A 15 March 2022 letter from Mr Duggan indicated that he attended those premises the day after that false alarm, and said: It was found that the smoke detector in Room 29, was in fact set off by a gust of wind and dust entering the room from outside the building. The smoke detector was not defective and was only 2 years old. The other fire equipment items of any nature in the room were not defective. The detector was set off by natural causes from the outside elements. The tenants in the room did not cause the entering of the dust and wind in the room that set off the smoke detector. The SMOKE DETECTOR "SUSPECTED MALFUNCTION" is NOT correct. The Fire Brigade deeming this alarm as a billable event is at law incorrect. The causation was beyond the control of the building owner and there is nothing the builder owner can do to rectify the situation, as an occupant is entitled to occupy with open windows to enjoy fresh air. 1. As a result of this incident, Tyco issued an invoice to Perry dated 15 October 2021 for $1,776, seeking reimbursement of $1,600 paid by Tyco to F&R and charging a 10% administration fee plus GST. On 25 November 2021 Perry completed a form prepared by Tyco, attached a submission which sought to have that false alarm chare waived. On 11 March 2022 Perry's appeal to F&R was declined. 2. This affidavit also referred to what had been said on behalf of the Shopping Centre Council of Australia and what had been said by Mr Greck from ACT Fire and Rescue to the IPART inquiry. 3. When cross-examined by Romteck's counsel, after conceding that Romteck's invoice had not been paid, indicated that Guideline 4 was not provided to him by either Romteck or Tyco, that it did not impact on his decision to enter the contract with Romteck, and that he had only read it recently. Mr Perry accepted that smoke detectors can be set off not only by smoke by also by an aerosol product or steam and that positioning of the smoke detector can affect whether an alarm occurs. 4. When Mr Perry indicated he was not aware that a false alarm due to steam was chargeable, his attention was directed to page 12 of Guideline 4. 5. Mr Perry was unable to recall whether any attachments were submitted with Perry's 23 September 2021 waiver application or its 23 November 2021 appeal from a waiver determination. It was noted that a further application sent to F&R in relation to the 11 August 2022 incident did attach an undated letter from Mr Duggan. 6. In re-examination, Mr Perry indicated he first became aware of Guideline 4 on 23 November 2021. 7. Mr Duggan provided an affidavit in the application against Romteck in which, after setting out his qualifications and experience, he gave evidence in relation to the false alarm that occurred on 16 August 2021 at the boarding house owned by Perry in Petersham. He said the smoke detector in question was "a Tyco conventional smoke detector" which he tested, using an artificial cannister of smoke. That smoke detector was on the ceiling in a studio apartment, adjacent to the ensuite. His evidence was that there was no dust or insects, that the bathroom's exhaust fan was working, that the windows were open, and that there was no incense or candles or cigarette odours that could have caused a smoke alarm. 8. A second affidavit of Mr Duggan, relating to the application against Tyco, provided a copy of his 15 March 2022 letter (quoted above) and indicated that (1) he replaced the smoke detector two years ago, (2) he tested it with an artificial canister of smoke and found it to be working, and (3) "there were no insects present in the room, no evidence of items that could have caused smoke (such as incense, candles), no presence of any odours such as cigarettes, and the balcony door was left open". 9. Mr Perkins is a solicitor, employed by F&R. He provided a statement which was accompanied by a copy of the contract between F&R and Tyco. 10. Mr Joseph is a director of Romteck whose statement dealt with the operation of a service provider and the systems it monitors, as well as its contracts with both F&R and companies such as Perry. 11. This statement indicated that another company, Romteck Australia Pty Ltd, manufactures a variety of models of automatic signalling equipment (ASE) while Romteck is one of only three companies approved by F&R to be an automatic fire alarm service provider. Annexure C1 to this statement was a copy of Specification E2.2a of the NCC which requires that an automatic smoke detection system in a Class 3 building must be connected to a fire alarm monitoring system which must be connected to fire station or fire dispatch centre. 12. For a Class 3 building, the components of the fire alarm system were said to be a smoke detection system and ASE which, when combined become an automatic fire alarm system whereby F&R is notified whenever a smoke detector sends an alarm. It was the evidence of Mr Joseph that smoke detection systems are typically owned by the owner of the building in which they are installed, are usually attached to the ceiling, and are usually connected to a control board known as a fire indication panel (FIP). Further, that neither the smoke detection system nor the FIP in Perry's Petersham boarding house were installed, maintained, or owned by Romteck. 13. On or about 24 May 2012 an ASE was installed by Romteck who, on 28 December 2016 upgraded that ASE to a twin-SIM system, one from Telstra and one from Optus to address the risk of carrier outages. This system was said to send a signal to both F&R and Romteck Monitoring Centre as well as an email to Perry's nominated email address whenever a fire alarm signal is generated. It is sufficient to state that warning signals provide an alert if the ASE is not functioning properly and that it was function properly on 15 August 2021 when a false fire alarm occurred. 14. Simply stated, when a fire alarm signal is generated, F&R is notified without any human intervention of the relevant address. The control board at F&R, which receives those notifications, is monitored 24 hours a day, 7 days a week. When the fire brigade arrives at the address from which the alarm was generated, the FIP identifies the location/source of that alarm. 15. Mr Joseph indicated that, once the FIP activates the ASE, nothing can prevent that signal from being sent to F&R which causes F&R to send fire-fighting personnel and equipment to the relevant premises. Thus, the ASE does not create fire alarms: it only causes alarms which have been generated to be communicated to F&R. 16. It was also indicated that the F&R officers who attend the premises either deal with any fire or report it as a false alarm and determine what, in their opinion, was the cause of that false alarm which is indicated on the subsequent invoice to the service provider. Further, that Romteck staff do not attend the premises which were the source of the fire alarm signal. 17. Charging for what F&R considered to be billable false alarms was said to be done by F&R sending a monthly invoice to service providers who then pass on that charge plus an administration fee. In relation to the 15 August 2021 incident, Mr Joseph indicated that Romteck had invoiced Perry, but Perry had refused to pay. He said that F&R operated automatic fire alarm monitoring services until about 2000 when that was outsourced to private service providers. 18. A copy of the current agreement between F&R and Romteck, effective from 2 March 2020, was provided by Mr Joseph. He also supplied a printout of the information provided on the website of F&R in relation to false fire alarms, which included a copy of Guideline 4 and an Unwanted alarms brochure. His evidence was that such information was available to Perry at the time of its 4 January 2018 agreement with Romteck, a copy of which was also provided, together with the 4 January 2019 amendment. 19. Mr Joseph also provided copies of documents relating to the 15 August 2021 false alarm at the Petersham boarding house, namely (1) F&R's daily report, (2) its invoice to Romteck for August 2021 for a total of $843,200, (3) its payment of that invoice, and (4) its invoice to Perry in relation to that incident. 20. It was indicated that Romteck does not prepare applications for waiver of false alarm fees if the customer does not first pay Romteck's invoice. In such a case, it only lodges them for its customers. However, Romteck does assist its customers with any waiver application if its invoice has been paid. 21. Documents relating to the 15 August 2021 false alarm that were provided by Mr Joseph may be summarised by saying that Perry sent a request for waiver to Romteck on 23 September 2021 which was passed on to F&R that day. That request was declined by F&R on 5 November 2021. On 23 November 2021 Perry submitted an appeal which F&R rejected on 9 August 2022. On 19 August 2022 Perry submitted a further appeal, which included a copy of the undated letter from Mr Duggan. 22. The statement of Mr Joseph, at [47]-[51], replied to various paragraphs in Mr Perry's affidavit. At [49] he listed six things that Perry could be to reduce the incidence of false alarms: 1. Relocate smoke detectors. 2. Change the smoke detector to a better model. 3. Install a verification delay device on the FIP so that there is a short time during which a reset button can be pressed to stop the signal being sent to F&R. 4. Install or improve an exhaust fan. 5. Install warning signs for guests. 6. Obtain expert advice a to the best location and type of smoke detector. 1. In response to Mr Duggan's letter relating to the 15 August 2021 false alarm, Mr Joseph noted (1) there were no fresh air fans, (2) no details of any exhaust fan, (3) no details of the brand of smoke detector or its age, and (4) no indication of the age of the FIP at the Petersham boarding house. 2. Cross-examination of Mr Joseph revealed that Romteck added the same interest on unpaid amounts as it was charged by F&R and that it used a specialist law firm for debt collection. He accepted there was a current review of the pricing structure of F&R which was proposing a two tier-structure with the lower, discounted charge being $395 and the higher charge being $1,975. 3. The remaining evidence was a list of submissions received in response to IPART's draft report (Exhibit F), and a copy of that draft report, dated December 2021 (Exhibit G). Relevant to these applications, that draft report reveals: 1. F&R must attend in response to a fire alarm: s 11(1) Fire and Rescue NSW Act 1989 (the F&R Act). 2. F&R attends about 47,000 false alarms from ASE systems each year. 3. About 46% of those false alarms result in a $1,600 charge. 4. Only 2% of those charges are subsequently waived. 5. It was recommended that a full charge of $1,975 apply for false alarms that do not qualify for leniency and are not for the causes listed for a discounted charge. 6. It was recommended that a discounted charge of $395 apply when the cause is found to be (a) cooking fumes, (b) incense, candles, sparklers, or smoke machines, (c) due to aerosol use, such as hair spray and insecticides, or (d) due to steam, from a shower, bath, sauna, or steam room. 7. Recommendations that F&R "continue to proactively engage with alarm owners to reduce false alarms", work with NSW Fair Trading to develop a fact sheet, take steps to identify building design issues causing false alarms. 8. It costs F&R an average of $717 to attend each false alarm incident. Submissions for the applicant 1. Mr Gauja noted that in Guideline 4 the criteria for leniency included, at paragraph 9.3, where the false alarm "was caused by an event beyond the control of the customer". The applicant's case was said to be that F&R made representations as to when a fee would be charged. It was accepted that a claim of misleading and deceptive conduct could not be maintained against F&R but that the commercial relationship between Perry and the service providers, Romteck and Tyco, did enable such a case to be made. 2. While it was conceded that the representations are not made by the service providers, it was contended that they are the agent of F&R as they issue invoices and collect the charges levied by F&R and that they have adopted the representations of F&R. Further, that role of service providers is that of a debt collector for F&R. The applicant's case was put on the basis that, having regard to the guidelines, it is misleading and deceptive conduct for a service provider to say it is entitled to be paid the invoiced amount. Submissions for F&R 1. Mr Perkins made two points. First, that Guideline 4, which is part of the contract between F&R and the service provider, operates to provide a contractual right to have a false alarm charge reviewed, in paragraph 11.4. 2. Secondly, that what F&R does in relation to false alarms is not to impose a charge under s 42(1)(e) of the F&R Act but to charge an agreed fee under s 42(1A) based on a contractual arrangement made under s 79A. Submissions for Romteck 1. Mr Fennel suggested the application against Romteck failed for three reasons: (1) Romteck did not adopt Guideline 4, (2) even if it did, there was no misleading and deceptive conduct, and (3) Perry is not entitled to relief as there was no reliance on any representation in Guideline 4. 2. As to the first of those three points, it was noted that clause 5 of Romteck's agreement with Perry did no more than indicate that any charges imposed on Romteck by F&R would be passed on to Perry while clause 6 provided for Romteck to assist Perry to prepare and lodged a waiver application, but only after its invoice has been paid. In those circumstances, it was said that there was no promise, guarantee, adoption, or endorsement. Reference was made to Google at [13] and [15]. 3. Secondly, after referring to the definition of a chargeable false alarm on paragraph 4 of Guideline 4, and to its last page, where activation due to steam is shown as being chargeable, it was said that paragraph 13 set out the process for applying for waiver of a false alarm charge. Those provisions were said to not be unreasonable. Further, it was noted that Perry's application was without supporting material, that Romteck did not provide the smoke detector, and that there were steps that Perry could take to reduce the incidence of false alarms (listed at [54] above). It was submitted that, in circumstances where Perry had not shown that the 15 August 2021 was not chargeable, there was no misleading and deceptive conduct. 4. Thirdly, even if there was misleading or deceptive conduct, there was no evidence that Romteck's conduct was the cause of the contested amount being charged since Mr Perry did not have regard to Guideline 4 when entering into the agreement between Perry and Romteck upon which the disputed charge was made. In short, it was contended that Perry agreed to pay Romteck for any false alarm charge made by F&R and Romteck was only obliged to assist Perry to have that charge waived by F&R after Perry paid that Romteck's invoice in respect of that charge. 5. It was also submitted the Tribunal order for Perry to pay the disputed amount, referring to s 79O of the FTA and the decision in Buses and 4WD Hire Pty Limited v Richardson [2016] NSWCATAP 24 at [95]-[97] (Buses). In other words, it was contended that when Perry sought an order it did not have to pay an amount, Romteck could obtain an order for the payment of that amount. Submissions for Tyco 1. Ms Sane-Aulea relied on the submissions made on behalf of Romteck. It is noted that these two applications raise the same issue, the relevant differences between them being (1) the differing causes of the false alarm, and (2) the different wording of the terms and conditions: Exhibit D at page 6 of the exhibited documents in the case against Tyco; Exhibit A at page 7 of the exhibited documents in the case against Romteck. Submissions in reply 1. It was submitted that a party cannot contract out of the ACL, that the Tribunal should look at the circumstances which gave rise to each of the false alarm charges, that the cause of those false alarms was in each case a matter outside Perry's control with the contended result that those charges should be waived, based on the wording of paragraph 9.3 of the Guideline. Consideration 1. When proceeding are commenced in a court or tribunal, there are three matters which must be considered: first, whether there is jurisdiction to consider the claim; secondly, whether there is a cause of action, being a legal basis for the claim, and whether the evidence is sufficient to prove that cause of action; thirdly, what relief should be granted, ie what order(s) should be made. 2. Having earlier determined that the Tribunal does have jurisdiction in each application against each respondent, it is necessary to consider whether the applicant has a cause of action which has been proved. In these applications, the applicant's case is based on a claim that there was misleading or deceptive conduct, contrary to s 18 of the ACL. 3. Before considering the evidence, it is desirable to first summarise the context which gives rise to these applications. 4. Unlike a home or apartment, where a smoke detector only serves to alert the occupants (and perhaps neighbours), the owner of a boarding house is required to have an additional system whereby any activation of a smoke detector is automatically, ie without any human intervention, communicated to F&R. 5. In view of the potential for loss of life and significant property damage, a situation where there is a fire, but no alarm, is to be avoided. Erring on the side of caution result in situations where there is an alarm, but no fire, commonly referred to as a false alarm. F&R has a statutory obligation to respond to every alarm, imposed by s 11(1) pf the F&R Act: When there is an alarm of fire, a fire brigade must, despite anything to the contrary in any Act, proceed with all speed to the fire and try by all possible means to extinguish it and save any lives and property that are in danger. 1. Paragraph 3.1 of F&R's Guideline 4 suggests that 96% of the alarms F&R receives from an automatic system are false alarms which is not only a waste of resources but carries the risk that F&R's personnel and equipment will be attending a location where there is no fire at a time when, at another location, there is a fire. Put another way, when F&R respond to an alarm from an automatic system, there is only a 1 in 25 chance there is a fire at that location. 2. From the draft IPART report, it appears that there are about 47,000 false alarms in this State each year, 46% of which result in a charge being imposed by F&R with only 2% of those charges later being waived. Guideline 4 defines a chargeable automatic fire alarm (AFA) as follows: An AFA false alarm which, in the opinion of [F&R], can be attributed to any action or inaction of the Customer or other party to maintain the AFA and where the activation of that AFA could have reasonably been prevented. See paragraph 14: [Service provider] monitored AFA False Alarm Codes. 1. Paragraph 14 of Guideline 4 lists various false alarm codes, with numbers ranging from 702 to 773, describing each of them and indicating whether they are chargeable or non-chargeable. Code 768, which is chargeable, is described as "Activation due to steam – includes shower, bath, sauna, kettle, steam room". 2. Based on the evidence, having regard to the submissions, the Tribunal makes the following findings: 1. About two decades ago, F&R outsourced the operation and administration of automatic fire alarm systems to service providers. 2. Romteck and Tyco are two of the three such service providers. 3. F&R contracted with Romteck in relation to the provision of such services and has likewise contracted with Tyco. The terms of those contracts have been amended from time to time and the current terms are those which have applied since 2 March 2020 when F&R's Commissioner signed contract documents which had previously been signed on behalf of Romteck and Tyco. Under their respective contracts with F&R, Romteck and Tyco are obligated to pay charges imposed by F&R. 4. On 23 February 2018 Perry contracted with Tyco for the provision of automatic fire alarm services for its Glebe boarding house. That contract did not refer to F&R's Guideline 4. 5. That contract contained a term that required Perry to reimburse Romteck for any false alarm charge imposed on Tyco by F&R. 6. On 4 April 2018 Perry contracted with Romteck for the provision of automatic fire alarm services for its Petersham boarding house. That contract did not refer to F&R's Guideline 4 other than mention F&R's waiver application form. 7. That contract contained terms (a) requiring Perry to reimburse Romteck for any false alarm charge imposed on Romteck by F&R, and (b) only requiring Romteck to assist Perry with a waiver application after that reimbursement was paid. 8. Prior to 15 August 2021 Romteck installed automatic signalling equipment at Perry's boarding house in Petersham. 9. On 15 August 2021 there was a false fire alarm at Perry's boarding house in Petersham. That alarm was caused by steam from a shower which set off a smoke detector. 10. That smoke detector was not manufactured, supplied, or installed by Romteck. 11. On 2 September 2021 Romteck issued an invoice for $1,688 to Perry which amount has not been paid by Perry. 12. Prior to 15 August 2021 Tyco installed automatic signalling equipment at Perry's boarding house in Glebe. 13. On 20 September 2021 there was a false alarm at Perry's boarding house in Glebe. That alarm was caused by wind and/or dust entering the room from outside the building. 14. That smoke detector was not manufactured, supplied, or installed by Tyco. 15. On 15 October 2021 Tyco issued an invoice for $1,776 to Perry which amount has not been paid by Perry. 16. A copy of F&R's Guideline 4 was not supplied to Perry by either Romteck or Tyco. Perry did not become aware of Guideline 4 until 23 November 2021 when it was read by Mr Perry. 17. At not stage prior to or on 23 November 2021 did either Romteck or Tyco engage in any conduct which constituted approving or endorsing F&R's Guideline 4. 18. Under that guideline (a) the 15 August 2021 false alarm was chargeable, (b) the 20 September 2021 false alarm may not have been chargeable. 19. An amount of $1,600 was paid; (a) by Romteck to F&R in respect of the 15 August 2021 false alarm, and (b) by Tyco to F&R in respect of the 20 September 2021 incident. Both those amounts were paid in compliance with a contract with F&R which required those amounts to be paid. 20. When Romteck charged Perry $1,668 in respect of the 15 August 2021 false alarm and when Tyco charged Perry $1,776 in respect of the 20 September 2021 alarm, Perry was required to pay those amounts by reason of its contract with those companies. 21. Perry unsuccessfully sought to those two $1,600 false alarm charges waived by F&R. Under its contract with Perry, Romteck was not required to assist Perry in relation to its waiver application as Perry had not paid the invoice which sought reimbursement of the F&R charge paid by Romteck. 22. There are steps that Perry can take to reduce the incidence of false alarms, as indicated at [54] above. 23. The terms and conditions used by Perry for the tenants at its Petersham boarding house include the words: All rooms are fitted with smoke detectors for your safety – These can also be triggered by too much steam in the room from open shower doors or from aerosols directly under the fire alarm sensors. If you/your room is responsible for setting off the fire alarm, there will be a fine charged by the NSW Fire Department of $1387.50. This will be payable by the person responsible or by all the persons living in the room. Decision – applications against F&R 1. There is a statutory basis for the charges imposed for false alarms by F&R. There is no evidence that F&R's Guideline 4 caused Perry to enter either its contract with Romteck or its contract with Tyco which contracts provide the basis for the amounts charged by those service providers in their challenged invoices. Further, F&R did not have any contract with Perry, other than in responding to the false alarms, and did not impose any charge on Perry. 2. The closing submissions for Perry appeared to concede it could not maintain its case against F&R. However, even if there was no such concession, and no other impediments to Perry's claim against F&R, it cannot be said that Perry suffered loss due to reliance on Guideline 4 when Mr Perry indicated he not read that guideline until 23 November 2021, after the incidents on 15 August 2021 and 20 September 2021, and after the invoices relating to those incidents were issued, on 2 September 2021 and 15 October 2021 respectively. Decision – application against Romteck 1. In view of the findings set out above, there was no misleading or deceptive conduct by Romteck. Further, even if there could be said to have been such conduct in relation to Guideline 4, Perry could not have relied on any such conduct when it entered its 4 April 2018 contract with Romteck because it did not become aware of that guideline until 23 November 2021. 2. As to the 15 August 2021 false alarm, the amount of $1,600 which F&R charged Romteck was in accordance with its contract with Romteck, and the amount of $1,688 which Romteck charged Perry was in accordance with its contract with Perry. Accordingly, Romteck is entitled to be paid that amount by Perry. Decision - application against Tyco 1. In view of the findings set out above, there was no misleading or deceptive conduct by Tyco. Further, even if there could be said to have been such conduct in relation to Guideline 4, Perry could not have relied on any such conduct when it entered its 23 February 2018 contract with Tyco because it did not become aware of that guideline until 23 November 2021. 2. As to the 20 September 2021 false alarm, the amount of $1,600 which F&R charged Tyco was in accordance with its contract with Tyco, and the amount of $1,776 which Tyco charged Perry was in accordance with its contract with Perry. Accordingly, Romteck is entitled to be paid that amount by Perry. Orders 1. The fact that s 79O(b) of the FTA specifically empowers the Tribunal to make an order for the payment of money by an applicant to a respondent in proceedings commenced by an applicant is sufficient to entitle Romteck and Tyco to an order that Perry pay the amount set out in their respective invoices. 2. That power, confirmed by the decision in Buses, accords with common sense because it would be pointless, after rejecting a claim that an applicant does not have to pay an amount, to require a respondent to commence further proceedings to obtain an order for the payment of that amount since any finding as to Perry's liability in these proceedings would bind Perry in the subsequent proceedings. 3. For the reasons set out above, being satisfied that they are fair and equitable (as required by s 78U of the FTA), the following orders are made: 4. In GEN 22/42741 1. The applicant is to pay the second respondent $1,688 immediately. 2. As against the first respondent, the application is dismissed. In GEN 22/43753: 1. The applicant is to pay the second respondent $1,776 immediately. 2. As against the first respondent, the application is 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: 28 June 2023