Flemings Property Services Pty Ltd v Raleigh [2023] NSWCATAP 294

Flemings Property Services Pty Ltd v Raleigh [2023] NSWCATAP 294

The Tribunal erred in determining liability under s 60 of the ACL without affording procedural fairness, rendering those findings invalid. However, the agent breached its agency contract by engaging and recommending an unlicensed contractor, causing loss to the principal for defective works. The appropriate measure of damages is the cost to rectify the defective work, reduced by any amounts recovered from the contractor; double recovery is not permitted. The respondent is thus entitled to compensation for the rectification cost, not a full refund, since the latter is not the correct measure where work—albeit defective—was performed.

Jurisdiction
Australia
Judgment Date
03 November 2023
Procedural Posture
Appeal / Decision on Appeal and Redetermination
Outcome
Appeal allowed in part (on procedural fairness and s 60 of ACL), redetermined as breach of contract only; varied compensation order; appeal otherwise dismissed.
Legal Topics
['breach of Contract' 'agency Obligations' 'property Management' 'statutory Consumer Guarantees' 'proportionate Liability' 'assessment of Damages' 'appeal Procedure']
['contract Law' 'consumer Law' 'agency Law'] ['breach of Contract' 'agency Obligations' 'property Management' 'statutory Consumer Guarantees' 'proportionate Liability' 'assessment of Damages' 'appeal Procedure']

Case Brief

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Procedural Posture

Appeal / Decision on Appeal and Redetermination

Legal Issues

  1. 1 ['Whether the Tribunal erred by considering s 60 of the Australian Consumer Law (ACL) without providing procedural fairness.' 'Whether the agent breached the agency agreement by engaging and/or recommending an unlicensed tradesperson.' 'Whether an award of damages for defective service was appropriate and how to quantify loss, including preventing double recovery.']

Ratio Decidendi

The Tribunal erred in determining liability under s 60 of the ACL without affording procedural fairness, rendering those findings invalid. However, the agent breached its agency contract by engaging and recommending an unlicensed contractor, causing loss to the principal for defective works. The appropriate measure of damages is the cost to rectify the defective work, reduced by any amounts recovered from the contractor; double recovery is not permitted. The respondent is thus entitled to compensation for the rectification cost, not a full refund, since the latter is not the correct measure where work—albeit defective—was performed.

Court Disposition

Appeal allowed in part (on procedural fairness and s 60 of ACL), redetermined as breach of contract only; varied compensation order; appeal otherwise dismissed.

Orders

  • ['In relation to the ground of appeal that the Tribunal erred in considering s 60 of the ACL, the appeal is allowed.' 'Leave to appeal is refused.' 'The appeal is otherwise dismissed.' "Order 1 varied to: 'The respondent FLEMINGS PROPERTY SERVICES PTY LTD is to pay the applicant WILLIAM RALEIGH the sum of $8,144 by...