Raju v Principle 9 Real Estate Pty Ltd t/as Principle 9 Real Estate

[2025] NSWCATCD 99

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Raju v Principle 9 Real Estate Pty Ltd t/as Principle 9 Real Estate [2025] NSWCATCD 99

Hearing dates:

30 September 2024 and 17 February 2025 (Last submission received 22 May 2025)

Date of orders:

28 July 2025

Decision date:

28 July 2025

Jurisdiction:

Consumer and Commercial Division

Before:

R Glover, General Member

Decision:

(1)    By consent, Gregory Murray is joined as an applicant.

(2)    The Respondents are to pay the Applicants the sum of $7,097.40 immediately.

(3)    In relation to the question of costs:

(a)   Within 14 days of the date of these reasons, the Applicants are to provide the Tribunal and the Respondents with any submissions and documents the Applicants intend to rely on in relation to the question of costs, including on the question as to whether costs should be fixed or assessed;

(b)   Within 28 days of the date of these reasons, the Respondents are to provide the Tribunal and the Applicants with any submissions and documents that the Respondents intend to rely on in response to the application for costs;

(c)   Within 35 days of the date of these reasons, the Applicants are to provide the Tribunal and the Respondents with any submissions and documents the Applicants intend to rely on in reply (only) to any submissions or documents provided by the Respondents;

(d) The parties are to address in their written submissions whether they consider that a hearing in relation to the question of costs can be dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act.

Catchwords:

CONSUMER LAW — Consumer guarantees — supply of services — guarantee as to acceptable quality — guarantee as to due care and skill – assessment of damages – assessment of compensation

Legislation Cited:

Australian Consumer Law

Civil and Administrative Tribunal Act 2013 (NSW)

Civil Liability Act 2002 (NSW)

Fair Trading Act 1987 (NSW)

Property and Stock Agents Act 2002 (NSW)

Property and Stock Agents Regulation 2022 (NSW)

Residential Tenancies Act 2010 (NSW)

Cases Cited:

Anderson v Cacaccord Genuity Financial Ltd (2013) 113 NSWLR 151

BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2013] NSWSC 1287

Breen v Williams (1996) 186 CLR 71

Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35

Culleton v Tonks [2025] NSWCATAP 129

Flight Centre Travel Group Ltd t/as Aunt Betty v Goel [2021] NSWCATAP 44

Gonsalves v Debreczeni (1998) 9 BPR 16,689

Hafezi v Luff Pier Pty Limited [2025] NSWCATAP 148

Henville v Walker (2001) 206 CLR 459

Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41

Inruse Pty Ltd v Equity Lenders Pty Ltd [2024] FCA 1434

Issacs v Michael [2024] NSWCATAP 236

Karpik v Carnival plc [2023] FCA 1280

Larsen ATF Larsen Superannuation Fund v Tastec Pty Ltd [2025] NSWCA 145

Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243

Malec v Hutton (1990) 169 CLR 638

Medical Device Technologies Pty Ltd v Health Administration Corporation [2024] NSWCA 142

Ni v Car Skinning Pty Ltd and Performance Auto Trader Pty Ltd [2023] NSWCATCD 62

Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) v BestCare Foods Ltd [2013] NSWCA 90

Pilmer v Duke Group Ltd (In Liq) (2001) 207 CLR 165

Rawlinson and Brown Pty Ltd v Whitham (1995) Aust Torts Reports 81-341

Scenic Tours v Moore [2023] NSWCA 74

Scenic Tours v Moore (2018) 361 ALR 456

Skiba v Serendipity (WA) Pty Ltd t/as Advanced Personal Management [2019] NSWCATAP 224

Sun v Lumi Skin Clinics Pty Ltd [2025] NSWCATCD 17

Tabet v Gett (2010) 240 CLR 537

Tame v New South Wales (2002) 211 CLR 317

Thompson v Dominelli Group Pty Ltd t/as Dominelli Ford [2025] NSWCATAP 106

Toppi v Toppi (No 3) [2025] NSWSC 733

Wade v Daniels and Associates Pty Ltd [2020] FCA 1708

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Radhika Raju and Gregory Murray (Applicants)

Principle 9 Real Estate Pty Ltd t/as Principle 9 Real Estate & Sharda Shukla (Respondent)

Representation:

Applicants: A Britt (30 September 2024), P Holmes (17 February 2025)

Respondents: S Shukla

File Number(s):

2024/00197900

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. These proceedings concern a claim by the Applicants against the Respondents in relation to the management of the tenancy of a property owned by the Applicants.

2. In the application filed in these proceedings, the Applicants sought an order that the Respondents pay the sum of $10,000 in respect of “serious, wilful, malicious repeated breaches of Management Rent Agreement by Principle 9 Real Estate”. The amount claimed was subsequently revised to $20,456.23.

3. The proceedings were listed before the Tribunal in a group list on 26 June 2024. Conciliation failed to resolve the proceedings, and they were listed for final hearing. On that occasion, the Tribunal made directions for the parties to file and serve their evidence, and the Applicants were granted leave to be legally represented. In making those directions, the Tribunal (differently constituted) noted the following matters:

1. The applicant seeks an order that the respondent pays approximately $10,000 as damages for breaches of sections 60 and 61 of Australian Consumer Law and the relevant provision relating to misleading and deceptive conduct. The respondent was a property management agent for the applicant. She claims the respondent failed to attend the premises for open house inspections, failed to conduct inspections of the premises during tenancies and gave incorrect advice and engaged in incorrect practices about rent increases…

2.   Further, the applicant said that she gave 30 days’ notice for the agreement between the parties to be terminated that date expiring on 19 June. The applicant claims that there could be more amounts owing to her as further evidence of the respondent’s claimed poor management. For this she needs the respondent to provide records of payments during her services for the applicant as managing agent. The respondent disputes all of these claims except a claim related to one instance of a rent increase.

4. The matter was listed for hearing before me on 30 September 2024. Mr Britt, of Counsel, appeared for the Applicants. Ms Shukla appeared on behalf of the Respondents. During the hearing Ms Raju and Ms Shukla gave oral evidence. The Applicants’ counsel cross-examined Ms Shukla extensively. Ms Shukla was given the opportunity to ask Ms Raju questions. Both parties made oral submissions.

5. Toward the end of the hearing on that day, Ms Shukla became distressed and sought an adjournment to enable her to gather further material to put before the Tribunal in responding to the Applicants’ claims. By that stage, the hearing had progressed to a significant extent, and in the circumstances, I determined that the matter should proceed as far as possible that day. At the conclusion of the hearing, I made directions for the parties to make written submissions on various matters, and to indicate whether a further oral hearing was sought.

6. In accordance with those directions:

1. the Applicants lodged an outline of submissions on 21 October 2024; and

2. the Respondents lodged an outline of submissions on 10 November 2024.

7. The Applicants also lodged an outline of submissions in reply on 18 November 2024.

8. Having considered those submissions, I determined that it was appropriate to list the matter for a further oral hearing. In circumstances where the Applicants have foreshadowed an application for costs (including in relation to the further hearing), I will not say anything further about those circumstances in these reasons.

9. The matter was then listed for further oral hearing before me on 17 February 2025. Mr Holmes, of counsel, appeared on behalf of the Applicants (Mr Britt being unavailable). Ms Shukla appeared on behalf of the respondents by AVL in accordance with the leave I granted to her on the morning of the hearing. During the hearing, further oral submissions were made on behalf of the Applicants. At times during that hearing Ms Shukla indicated a disinclination to participate and indicated that she did not wish to say anything further or make any further submissions. I informed Ms Shukla that I intended to proceed with the hearing in her absence if she elected to leave the virtual hearing room. Ultimately, Ms Shulka remained in the hearing and made some (albeit limited) oral submissions.

10. During that hearing, I raised with the Applicants’ counsel whether Mr Gregory Murray should be a party to the proceedings in circumstances where he was a party to the Managing Agency Agreement (referred to below). Ms Raju confirmed that Mr Murray consented to being joined to the proceedings. Accordingly, by consent, I will join Gregory Murray as an Applicant to these proceedings, and hence (for convenience) I have referred to the “Applicants” throughout these reasons.

11. At the conclusion of that hearing, and with the consent of the Respondents, I granted the Applicants leave to lodge with the Tribunal further evidence relating to the quantification of the Applicants’ claim. In consenting to that course, the Ms Shukla indicated that the Respondents did not intend to, or seek an opportunity to, respond to that material. On 21 February 2025, the Applicants lodged further material in accordance with that leave.

12. In early May 2025, the Applicants sought an extension of time to provide further material to the Tribunal pursuant to the leave granted on 17 February 2025. That extension of time was sought on grounds that Ms Raju had been unwell, and unable to collate all the material on which the Applicants intended to rely in accordance with the directions made on 17 February 2025. In circumstances where the Respondents had consented to the Applicants lodging further material at the hearing on 17 February 2025 and had not sought an opportunity to respond to it, I determined that it was – in all of the circumstances of the case – appropriate to grant the extension of time sought, and on 7 May 2025 I extended the time for the Applicants to comply with the direction made on 17 February 2025.

13. On 22 May 2025, the Applicants lodged that material with the Tribunal.

The evidence & written submissions

14. The Applicants relied on:

1. a bundle of documents lodged with the Tribunal on 12 July 2024, that comprised:

1. a schedule of damages;

2. a chronology;

3. an affidavit of Ms Raju, affirmed on 10 July 2024, together with annexures.

2. a further affidavit of Ms Raju affirmed on 18 September 2024, lodged with the Tribunal on 23 September 2024;

3. written outlines of submissions lodged with the Tribunal on 21 October 2024 and 18 November 2024; and

4. material related to the quantification of the Applicant’s damages claim lodged with the Tribunal on 21 February 2025 and 22 May 2025.

15. Ms Raju also gave oral evidence during the hearing on 30 September 2024.

16. The Respondents relied on:

1. a bundle of documents lodged with the Tribunal on 24 July 2024;

2. the written outline of submissions lodged with the Tribunal on 10 November 2024.

17. As noted above, Ms Shukla gave oral evidence during the hearing on 30 September 2024, and both parties made oral submissions during the hearings on 30 September 2024 and 17 February 2025.

18. The summary of the evidence and material relied on by the parties set out in the preceding paragraphs is not intended to be exhaustive, to identify all documents contained in the parties’ bundles, or to summarise them. In determining the real issues that arise in these proceedings, I have not found it necessary to refer to each piece of evidence or submission that was made: see Hafezi v Luff Pier Pty Limited [2025] NSWCATAP 148 at [72]. In those circumstances, that a particular issue, document, event, or matter is not referred to in these reasons should not be understood as having been overlooked. I have, however, had careful regard to all the material before the Tribunal in reaching the conclusions set out in these reasons.

The Applicants’ claim

19. The Applicants’ written submissions described the basis of their claim as follows:

5.   On 28 May 2024, the Applicant commenced these proceedings claiming that P9RE and Ms Shukla had engaged in serious and repeated breaches of their obligations pursuant to the Agency Agreement with Ms Raju and her husband.

6.   At directions on 26 June 2024, the Tribunal clarified that the proceedings related to breaches of the ACL, namely:

a. Section 18 – Misleading and deceptive conduct.

b.   Section 60 – Guarantee as to due care and skill.

c. Section 61 – Guarantees as to fitness for a particular purpose, etc.

7.   Additionally, the Applicant alleges that she has suffered damage as a result of the Respondents’ negligent performance of their obligations as her agent.

8.   In respect of the breaches, the Applicant seeks an order that the First and Second Respondent pay approximately $20,456.23 for damages…

20. The Applicants’ submissions then identified the issues that the Applicants submitted arose for determination by the Tribunal. Those issues were described as follows:

9.   The issues for the Tribunal to determine in this matter are:

a.   Were the First and Second Respondents negligent in the performance of their obligations under the Agency Agreement?

b. Did the First and Second Respondents engage in misleading or deceptive conduct in breach of s 18 of the ACL?

c.   Did the First and Second Respondents breach the consumer guarantees in ss.60 and 61 of the ACL?

d.   If the answer is yes to any of a. to c. above, has the Applicant suffered loss for which she should receive compensation or damages?

21. Despite what appeared to be a contrary submission made during the hearing on 17 February 2025, it is clear from those submissions that each of those claims were advanced against both respondents.

22. During the hearing on 17 February 2025, the Applicants’ counsel submitted that the Applicants’ claims could also be advanced on the basis of a breach of contract, in that there had been a breach of the Managing Agency Agreement. That claim was described as one arising against the corporate respondent (Principle 9 Real Estate Pty Ltd) only in circumstances where it was the relevant party to the contract with the Applicants.

23. I will consider the substance of each of those claims below.

Credibility and reliability of witnesses

24. Before setting out my findings of fact, it is necessary to consider an issue raised by the Applicants in their written submissions – namely, the approach to be taken to the assessment of the evidence of the two witnesses that gave oral evidence.

25. In this respect, the Applicants’ counsel made extensive submissions concerning Ms Shukla’s reliability and creditability as a witness. In doing so, it was submitted that (citations omitted):

2.   The Tribunal in cases involving events which occurred long before litigation, should usually prefer to rely on contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of litigation. This includes the various emails which are certainly more contemporaneous than witness testimony from the witness box.

3.   The Tribunal should place greater emphasis on such documents than should usually be accorded to them as they provide a safer repository of reliable fact and where there is no suggestion that the documents are other than genuine.

…

26. As a general proposition, I agree. Tribunals of fact have long, and often, expressed a preference for contemporaneous records over the frailties of human memory, and have expressed caution as to the ability of decision makers to ascertain the credibility or reliability of a witness from their demeanour or manner of giving evidence: see, e.g., Toppi v Toppi (No 3) [2025] NSWSC 733 at [13]-[19]. I have adopted the same approach in reaching the conclusions set out in these reasons, and in assessing the evidence given by Ms Shukla and Ms Raju.

27. The Applicants’ counsel also submitted that Ms Shukla’s evidence was unreliable, and that she was not a witness of credit, in circumstances where:

1. Ms Shukla’s evidence was “by and large” unsupported by contemporaneous documents, and in some instances was inconsistent with those documents;

2. Ms Shukla was unprepared to make obvious concessions when faced with clear documentary evidence, and was “very reluctant” to answer questions and “sought to deflect” questions or avoid answering them;

3. Ms Shukla made “a number of statements which were clearly not true”.

28. Ultimately, the Applicant’s counsel submitted that “the Tribunal should be reluctant to give Ms Shukla’s evidence any weight except where it is supported by contemporaneous records”.

29. Ms Shukla was subject to an extensive, and probing, cross-examination. That is not a criticism of the Applicants’ counsel, but in my view goes some way to explaining the manner in which Ms Shukla gave her evidence. During that cross-examination, it was evident that Ms Shukla had become distressed that there had been a breakdown of her relationship with Ms Raju.

30. However, I am satisfied that Ms Shukla’s oral evidence was, at times, plainly inconsistent with contemporaneous records. At other times, it contained internal inconsistencies and was difficult to follow. The Applicants’ counsel collected several examples of those instances in its written submissions, which I accept demonstrate those features of Ms Shukla’s evidence.

31. Although I am prepared to accept that Ms Shukla did her best to give truthful evidence, I have concluded that it is necessary to approach her evidence with caution, particularly where it is not otherwise supported by a contemporaneous record or other evidence.

Availability of records

32. The entirety of the Respondents’ files relating to the management of the tenancy was not in evidence. For example, no rental ledger, or print out from the Respondents’ management system that records events and communications (of a kind regularly seen in residential tenancy matters before the Tribunal) was available. Some, but not all, communications between the Respondents and the tenants of the Property were in evidence.

33. The Applicants say that the Respondents did not produce their complete file in relation to the management of the Property when the Applicants terminated the Managing Agency Agreement. I accept that the Respondents have not done so, and thus the Applicants do not have access to complete records relating to the management of the Property.

34. As will be seen below, in some instances that has made determining precisely what occurred, and when, difficult. However, the lack of records has not prevented me from being able to draw appropriate inferences from the available material where they naturally arise.

Findings of fact

35. Having considered all the evidence, and the submissions of the parties in relation to that evidence, I set out my findings of fact in the paragraphs below. Additional findings of fact are made, to the extent necessary, when considering each of the Applicants’ claims later in these reasons.

The Managing Agency Agreement

36. The Applicants were the owners of residential premises located in [ADDRESS], (Property).

37. From about 2018, Mr Murray was a member of a business networking group. Through that group, he met Ms Shukla.

38. At some point, there was a discussion between Mr Murray and Ms Shukla about the prospect of Ms Shukla, and her agency – Principle 9 Real Estate Pty Ltd – providing property management services to the Applicants.

39. On 8 August 2021, Ms Shukla sent Ms Raju an email, which listed the nature of the proposed property management services, and stated:

Our property management fee covers the following services:

- Open inspections

- Marketing the property via multiple channels

- Screening and selecting tenants

- Negotiating leases and rent reviews

- Settling and collecting rent

- Handling leases, maintenance and repairs

- Maintaining budgets and records

- regular routine inspections and final inspections

- managing payment of strata and utility bills on client’s behalf.

Our management fee is 4.5% plus GST and 1 weeks rent (plus GST) as our letting fees. Note that we do not charge for lease preparation, monthly account keeping fees etc. If your property is currently leased and occupied by tenant(s) there is no letting fee when the property is transferred from another agency.

We have a team of dedicated property management experts who will help you achieve your maximum income potential. Principle 9 Real Estate will ensure to maintain your property to the highest standards through our routine inspection reporting and follow ups. Our team of professionals will provide you with efficiency and consistency in our service delivery, through our optimised multifunction systems, rent collection, repairs and marketing etc.

40. Attached to that email was a form of agreement headed “Management Agency Agreement Residential”. The “Agent” was identified as Principle 9 Real Estate. According to the “ABN Lookup” search results attached to the Application, that was a business name carried on by the corporate respondent, Principle 9 Real Estate Pty Ltd.

41. In emails sent by Ms Shukla, she is identified as the “Principal/Licensee in Charge” of Principle 9 Real Estate. Accordingly, I am satisfied that Ms Shukla held that position.

42. On 5 October 2021, the Applicants signed that agreement and returned it.

43. The Respondents did not provide the Applicants with a copy of the agreement executed on behalf of Principle 9 Real Estate Pty Ltd. However, it is uncontroversial that from about 5 October 2021 onwards, the Respondents assumed the management of the Applicants’ Property. Accordingly, I am satisfied that on about 5 October 2021, the Applicants and Principle 9 Real Estate Pty Ltd entered into an agreement in the terms of the “Managing Agency Agreement Residential” that was proffered by the Respondents to the Applicants, signed by them, and returned to the Respondents (Managing Agency Agreement).

44. I am also satisfied that at all times, Ms Shukla was responsible for, and conducted, all work in relation to the Managing Agency Agreement on behalf of Principle 9 Real Estate Pty Ltd.

The Residential Tenancy Agreement

45. In October 2021, two open house inspections of the Applicant’s Property were arranged by the Respondents. Ms Raju attended both of those inspections, and at the first of them, met Ms Shukla for the first time.

46. The second of those inspections was held on about 15 October 2021. The day prior, Ms Shukla had discussions with a potential tenant, Ms Suzy Broughton, and facilitated a “virtual inspection”. Copies of a text message exchange between Ms Shukla and Ms Broughton establish that they had such a discussion, and Ms Shukla had provided Ms Broughton with a video that appears to be a “walkthrough” of the Applicant’s Property.

47. On the day of the second of those inspections, Ms Shukla contacted Ms Raju and advised her that she was running late. As a result, Ms Raju opened the Property so that the inspection could commence on time. Ms Shukla arrived sometime after the inspection commenced.

48. During that inspection, and prior to Ms Shukla’s arrival, Ms Raju had a discussion with Ms Broughton. Consistent with the fact that Ms Broughton had discussions with Ms Shukla the day prior, Ms Broughton asked Ms Raju whether she was “Sharda”. After introducing herself as the owner of the Property, Ms Raju and Ms Broughton had a discussion during which Ms Broughton indicated a general preparedness (subject to some repairs being attended to) to enter into a residential tenancy agreement on terms that the rent be $900 per week.

49. On 24 October 2021, a residential tenancy agreement (Residential Tenancy Agreement) was entered into in relation to the Applicants’ Property with Ms Broughton and her husband as the tenants (Tenants). The terms of the Residential Tenancy Agreement included that:

1. the rent payable was to be $900 per week; and

2. there was an initial fixed term of 5 years, commencing on 12 November 2021 and expiring on 13 November 2026.

50. The Residential Tenancy Agreement was signed by Ms Shukla on behalf of the Applicants.

51. Ms Raju gave evidence that neither she, nor Mr Murray, had been provided with a copy of the executed Residential Tenancy Agreement at the time, or at any time prior to it forming part of the Respondents’ evidence before the Tribunal. I accept that evidence.

52. When the Tenants were due to enter into possession of the Property, Ms Shukla telephoned Ms Raju and asked Ms Raju to deliver the keys to the Tenants. Ms Raju did so.

53. In December 2021, Principle 9 Real Estate Pty Ltd was paid a letting fee of $990 in relation to the letting of the Applicants’ property.

The rent increase to $925 per week

54. In about August and September 2022, there was some communication between Ms Raju and Ms Shukla concerning the rent payable for the Property. In this respect, on 30 September 2022, Ms Raju sent Ms Shukla an email stating:

Yes please go ahead with true [sic] $50 increase.

Thank you

Radhika

55. Ms Shukla replied to that email on 2 October 2022, stating:

Perfect, thanks for confirming. This will take effect from the 30^th of November.

Should you have any question, please feel free to contact me.

56. Pausing there, it is unclear from the terms of that email exchange precisely when the notice of increase was given to the Tenants in accordance with Ms Raju’s instructions. However, I am satisfied that notice of the proposed rent increase had been given prior to 6 October 2022 as on that day, Ms Shukla sent an email to Ms Raju that set out a response that had been received from the Tenants in relation to the proposed rent increase. That response was to the effect that the Tenants did not consider it to be “fair and reasonable” to increase the rent given the nature of the issues that they had experienced with the Property, and that they “hope that the increase is negotiable and a compromise can be reached”. Ms Shukla then asked Ms Raju whether she would be “open to negotiation and if so, how much”.

57. On 16 October 2022, Ms Raju provided Ms Shukla with the text of a proposed response to the Tenants’ correspondence. In relation to the proposed rent increase, that draft response requested that the Tenants indicate what they considered to be a “fair increase” and “what amount you are prepared to accept as a rental increase”. In that email, Ms Raju sought Ms Shukla’s advice as to whether the proposed response was appropriate.

58. On 17 October 2022, Ms Shukla replied to that email, stating:

This is perfect, thank you. I will send this to the tenant now.

Should you have any question, please feel free to contact me.

59. It is evident that Ms Shukla sent the Tenants an email in the terms that had been drafted by Ms Raju on or shortly after 17 October 2022, as on 21 October 2022, Ms Shukla sent an email to Ms Raju which set out the Tenants’ response. In relation to the question of the rent increase, the Tenants responded, “We would like to propose rental increase to $925 per week”.

60. On 6 November 2022, Ms Raju replied to Ms Shukla’s email, stating:

Hi Sharda

In relation to the rent increase please say the following:

The tenants [sic] thank you for the email. They have agreed to increase the rent to $925 on the provision that the parties can revisit the issue of a rent increase in 6 months. They wish to reiterate they thank you for being such good tenants.

61. Later on 6 November 2022, Ms Shukla sent an email to the Tenants stating:

Hi Suzy,

Hope you’re keeping well.

Just wanted to confirm with you that the owners thank you for the email. They have agreed to increase the rent to $925 on the provision that the parties can revisit the issue of a rent increase in 6 months. They wish to reiterate that they thank you for being such good tenants.

62. Pausing there, it was not open to the Applicant to seek to revisit the rent in 6 months after the increase had taken effect, as rent payable under a fixed term agreement of more than 2 years may only be increased once in any 12-month period: see s 42(2)(b) of the Residential Tenancies Act 2010 (NSW) (in the form it was in at that time).

63. Having regard to the evidence as a whole, I am satisfied that the rent increased to $925 per week with effect from 30 November 2022.

A further proposed rent increase in March 2023

64. On 15 March 2023, Ms Raju contacted Ms Shukla in relation to the issue of the rent payable for the Property, and stated:

…As agreed we would revisit the issue of the rent increase 6 months from October of last year.

Please advise what you think is a fair rent increase given mortgage prices inflation and rent has increased in the area.

65. Later that day, Ms Shukla responded to that email stating:

Currently, I believe the rent is at quite a reasonable price in line with market expectations and if we did choose to increase I think it wouldn’t be anything significant, maybe $1000 a week.

Please take a look at some significantly bigger properties going for a little above what she’s paying:

…

Let me know if you’d like to increase the rent and I’ll send her a notice.

66. On 22 March 2023, the Ms Raju responded to Ms Shukla, stating:

Please ask for $1025 they will try to negotiate down. Which is fine.

67. Later on 22 March 2023, Ms Shukla replied to Ms Raju, stating:

Thanks for letting me know.

As the rent was increased from $900 to $925 in January, the next increase will have to take place in June as rent can only be increased twice in a year.

I’ll issue a notice to the tenant.

68. Pausing there, as noted above, Ms Shukla’s statement that “rent can only be increased twice in a year” was incorrect.

69. On 24 April 2023, Ms Raju sent an email to Ms Shukla stating “[d]id the Tenant’s [sic] accept the rent increase?”. No response was received to that email.

70. On 16 June 2023, Ms Raju sent a further email to Ms Shukla stating “[i]s the rent increase being applied this month please?”.

71. On 19 June 2023, Ms Shukla replied to that email stating:

Apologies for the delay in getting back to you.

I have given the tenant notice of increase already and the new rent is due to kick in soon.

72. The “notice of increase” referred to in that email was not in evidence. Having regard to the evidence as a whole, I am satisfied that no such notice was, in fact, given to the Tenants. In this respect, in the written material lodged by the Respondents with the Tribunal, the Respondents stated (emphasis added):

Rent supposed to be increased on 3^rd July 2023 to $1025 per week.

Due to be applied but ultimately not.

Lease at this point is now 2 years into its fixed term of 5 years. However, the tenants out of goodwill have repeatedly been willing to adjust their rent in line with their financial circumstances at the time as well their understanding of the owner’s situation and privately talking with the owners.

As per the Residential Tenancies Act 2010 Section 42(2)(A), the rent was not legally allowed to be increased at this point due to falling in the “once in any period of 12 months”. As such, the increase was not actioned so that we would align with NSW legislation.

The applicant further claims that we told her we could then increase the rent again in 6 months which would violate the above legislation. No, the landlord was informed of a hypothetical that if the lease was in a shorter fixed term of say 6 months, then this would’ve been possible, but it wasn’t due to the tenant’s 5 year lease.

73. Whilst I am satisfied that the proposed rent increase in June 2023 “was not actioned”, I reject the balance of the explanation proffered by the Respondents in that passage. Whilst several things may be said about it, perhaps the most telling is that it does not reflect what Ms Shukla was communicating to Ms Raju at the time. The emails sent by Ms Shukla that are in evidence demonstrate that Ms Shukla told Ms Raju that a rent increase notice to increase the rent had been issued and that the rent increase to $1025 per week was to take effect “soon”. I am also satisfied – consistent with the content of the contemporaneous correspondence set out above – that in about November 2023, there were discussions between Ms Raju and Ms Shukla in which the prospect of increasing the rent again in about June 2023 was proposed. That cannot sit with the statement that the rent increase was not actioned because Ms Shukla was conscious at that time that it would have been contrary to “NSW legislation” to do so.

74. Further, I do not accept that Ms Shukla discussed the asserted “hypothetical” set out in that passage with the Applicants. That “hypothetical” scenario cannot sit with later explanations given by Ms Shukla as to why the rent increase was not put into effect at that time, which include a concession that she had “originally thought” that the rent could be increased twice in a 12-month period. That concession is entirely consistent with the contemporaneous correspondence.

75. On 22 April 2024, Ms Shukla sent Ms Raju an email stating:

The tenant has contacted me regarding the due rental increase, and has said that they currently cannot afford a significant increase to rent.

They are wondering if there is any room for negotiation or what your absolute lowest rent you’re willing to renew a lease is for.

Please let me know once you have an answer.

76. The reference in Ms Shukla’s email to “renew a lease” was misplaced given that the fixed term of the Residential Tenancy Agreement did not expire until 2026. It conveyed the impression that the fixed term was considerably shorter than it was and had expired or was to expire in the near future.

77. Later that day, Ms Raju asked Ms Shukla to “confirm what the current rent is”.

78. On 23 April 2024, Ms Shukla replied stating “[t]hey’re currently paying $925 per week”.

79. Later, on 23 April 2024, Ms Raju sent an email to Ms Shukla, stating:

Thanks for your reply. I have gone back to my emails and am a bit confused and want to get your help on understanding things:

1.   On 22 March 2023, I asked you to increase the rent to $1,025. That day you replied saying that the rent increase will have to take place in June 2023 and that you will issue a notice to the tenants. The next day I replied that it was fine.

2.   On 24 April 2023, I emailed you asking did the tenants accept the rent increase. I cannot find any reply to this email.

3.   On 16 June 2023, I asked you is the increase being applied this month and three days later (19 June 2023) you replied the new rent is due to kick in.

You can imagine how concerned as to why the Tenant’s [sic] are paying $925 and not $1,205 which is what was said.

Please

a.   Send me a copy of the notice that was sent to the tenants on 22 March 2023 indicating that they need to pay $1,025

b.   A response as to why the tenants are paying $100 on less [sic] then was agreed to.

80. On 24 April 2024, Ms Shukla responded to Ms Raju, stating:

I understand your confusion here and no doubt belief that you would be frustrated right now.

This seems to be a significant issue and not one I will be able to get back to you on immediately due tome currently being overseas and not having the entirety of my property management software with me.

This is not the ideal situation at all, and I am sorry for this on my end I will have to look into this thoroughly.

Could you please provide me with just a few days to contact someone from my team in Sydney and investigate the issue and get back to you?

81. Ms Raju replied “[t]hanks Sharda. Look forward to hearing from you”.

82. On 29 April 2024, Ms Raju sent a further email to Ms Shukla, stating:

Have you now had the opportunity to get your tram [sic] to look into this? If not can you anticipate how much longer do you need please. You can imagine this has caused me much anguish.

Please give it your urgent attention so we can lock in the next price increase asap noting it will take some time to kick in.

83. There was no response to that email.

84. A statement issued by Principle 9 Real Estate on 1 May 2024 recorded the rent payable as $925 per week, and included a note that stated, “incorrect rent on system”.

85. On 3 May 2024, Ms Raju sent a further email to Ms Shukla, stating:

Could you please get on to the matter of rent discrepancy asap as it’s really causing me concern.

Pease address my concerns by close of business Monday, 6 May 2024.

86. On 4 May 2024, Ms Shukla sent an email to Ms Raju, stating (emphasis added):

I apologise for missing this email. I just flew back today and landed in Sydney this evening.

I’ve looked over everything, including my emails with you, emails with the tenant, and the records on our system.

Firstly, I would like to immediately apologise for the extreme frustration and concern I’m sure you’ve faced regarding this matter.

I understand that this is not the desirable outcome you wanted at all, but I have looked back on our records and found that the reason for the increase not being enacted was due to the tenant not being happy with an increase during her periodic lease after the increase in December of 2022 was enacted due to the fact that legally the lease being periodic over fixed term meant that the rent could only be increased once every 12 months rather than twice every 12 months as we had originally thought. This was concluded after a discussion with NSW fair trading. This discussion happened after the notice was meant to take place as the mid year rent increase would have been illegal due to NSW tenancy regulations and would have resulted in us being forced to pay the funds back to the tenant. The tenant clarified that with the issues in the property still not being resolved such as leakages to the rook and ceiling, she would rather have one increase yearly, hence why she requested the increase to be postponed to 2024, which they are still trying to negotiate as they are still not happy with $1025.

I know this has undoubtedly caused you immense stress, but I am happy to take whatever course of action you advise me on going forward for the tenant. I am happy to issue a rent increase in the form a complete rental renewal to take place in June, which would mean we could legally increase the rent again in December to recover lost time.

87. That response is telling in several respects. First, Ms Shukla describes the tenancy as being periodic when it was plainly still within its fixed term. Secondly, Ms Shukla concedes that she had “originally thought” that the rent could be increased twice within a 12-month period. That concession is consistent with the contemporaneous correspondence set out above. It was incorrect. Thirdly, it suggests that Ms Shukla discovered her error in about mid-2023, but did not advise the Applicants of the correct position until this email was sent. Fourthly, Ms Shukla proposes a “renewal”, which Ms Shukla appeared to suggest would permit the rent to be increased in June and again in December. Such a course was not seemingly available in circumstances where the Residential Tenancy Agreement was still within its fixed term.

88. On 11 May 2024, Ms Shukla emailed Ms Raju, stating:

Hope you’ve been keeping well.

I spoke with the tenant earlier and they’re fine with the renewal to $1025.

They have also requested further care into the issue with the wet weather though, especially after the recent heavy rains this week.

From their perspective, they’ve said the leaks are extremely noticeable in the ceiling and the back garden frequently floods with them needing to redirect water…

They’ve asked if there can be any long term repair done to this?

Let me know what you think and I can get back to them.

…

Termination of the Managing Agency Agreement

89. On 20 May 2024, Ms Raju wrote to Ms Shukla (among other matters) giving notice that the Applicants were terminating the Managing Agency Agreement “within 30 days from today”.

90. On 21 May 2024, Ms Shukla wrote to Ms Raju and stated (among other matters):

I understand your desire to terminate the agency agreement, and this is something that I am fine with proceeding with despite it going against our standard 60-day notice period.

91. Having regard to the exchange of correspondence that occurred, I am satisfied that the Managing Agency Agreement came to an end on about 20 June 2024, being 30 days after 20 May 2024.

The rent increase to $1,205 per week

92. The Applicants’ bank records reveal that the Tenants paid rent in the amount of $925 per week up to 5 July 2024, and from 17 July 2024 paid rent in the amount of $1,025 per week.

93. Accordingly, I infer that from 17 July 2024 the rent payable pursuant to the Residential Tenancy Agreement was increased to $1,025 per week.

The rent payable pursuant to the Residential Tenancy Agreement from time to time

94. Having regard to the evidence before the Tribunal, I am satisfied that the rent payable by the Tenants pursuant to the Residential Tenancy Agreement from time to time was:

1. $900 per week from 12 November 2021 (being the commencement of the Residential Tenancy Agreement) until 29 November 2022;

2. $925 per week from 30 November 2022 until 16 July 2024; and

3. $1,025 per week from 17 July 2025.

Jurisdiction

95. Section 79J of the Fair Trading Act1987 (NSW) confers jurisdiction on the Tribunal to hear and determine “consumer claims”.

96. Section 79E(1) of the Fair Trading Act defines a “consumer claim” to mean:

(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.

97. In Skiba v Serendipity (WA) Pty Ltd t/as Advanced Personal Management [2019] NSWCATAP 224 the Appeal Panel set out the elements of a consumer claim at [56]:

… on the meaning of ‘consumer claim’ in s 79E(1), and other definitions relevant to the words and terms in that section, the elements of a consumer claim arising from the supply of services under Part 6A of the FT Act, include the following:

(1) the claim must be made by a ‘consumer’ as defined in s 79D. Section 79H provides that a person claiming to be a consumer is to be presumed to be a consumer until the contrary is proved;

(2) the claim must arise from a ‘supply’ as defined in s 79G(2);

(3) the claim is for ‘services’ as defined in s 79F;

(4) by a ‘supplier’ as defined in s 79D, to a ‘consumer’ (whether or not under a contract) in the course of carrying on or purporting to carry on a ‘business’, as defined in s 4; and​

(5) the claim seeks one of the remedies listed in s 79E(1)(a) to (d).

98. On the material before the Tribunal, and in accordance with the conclusions set out in these reasons, I am satisfied that:

1. the Applicants are within the meaning of a “consumer” for the purposes of s 79 of the Fair Trading Act. In any event, once an assertion to that effect is made – as it has been here – a presumption arises that the Applicant is within the meaning of a consumer, unless it is proven to the contrary: s 79H of the Fair Trading Act. No such attempt was made by the Respondents in this case;

2. the services provided by the Respondents in managing the Property constituted a “supply” for the purposes of s 79G(2) of the Fair Trading Act;

3. the property management services supplied by the Respondents constituted “services” for the purposes of s 79F of the Fair Trading Act;

4. the Respondents were within the meaning of a “supplier” of those services to the Applicants (who were “consumers”) in the course of carrying on or purporting to carry on the real estate agency business, trading as Principle 9 Real Estate, within the meaning of s 79D of the Fair Trading Act;

5. the claim – being one for the payment of an amount of money – seeks one of the remedies set out in s 79E(1)(a)-(d) of the Fair Trading Act.

99. The claim is within the Tribunal’s jurisdictional limit for claims made under the Fair Trading Act: see s 79S of the Fair Trading Act.

100. I am satisfied that the proceedings were commenced within the time limit applicable to making such claims before the Tribunal: see s 79L of the Fair Trading Act.

101. Accordingly, I am satisfied that the Tribunal has jurisdiction in this matter.

The manner in which the Applicants’ claim has been advanced

102. As set out above, the Applicants’ claim is advanced on the following bases:

1. contraventions of the Australian Consumer Law;

2. negligence; and

3. breach of contract.

103. Although somewhat contradictory positions were advanced on behalf of the Applicants at times as to which of the claims were advanced against which respondents, as I understand the effect of the combined submissions made the claims are advanced against both respondence, save for the breach of contract claim which is advanced solely against the corporate respondent (Principle 9 Real Estate Pty Ltd). I will proceed to consider the Applicants’ claims on that basis.

104. Before turning to an assessment of the Applicants’ claim, it is necessary to make some observations in relation to the way it has been advanced. As set out above, the Applicants have advanced several causes of action. Each of those causes of action, in turn, rely on multiple events and instances of conduct. For example, the Applicants rely on 17 examples of the Respondents’ conduct in establishing that the Respondents were negligent, which in turn form the basis of allegations that the Respondents have contravened ss 60 and 61 of the Australian Consumer Law. Ten instances of conduct are relied on as establishing what are described as the “Further Representations”, in addition to what are described as the “Pre-Contract Representations”, for the purposes of the Applicants’ claim under s 18 of the Australian Consumer Law.

105. There is also significant degree of overlap between some of the causes of action – particularly the negligence claim, the claim pursuant to ss 60 and 61 of the Australian Consumer Law and (at least to some extent) the claim for breach of contract. Given the extent of the overlap in the claims made by the Applicants, at times, it was not always entirely clear how certain aspects of the Respondents’ conduct were sought to be relied upon by the Applicants in relation to each aspect of their claim. Further, in assessing the Applicants’ claims, several (sometimes complex) issues of law arose, some of which were not addressed in the Applicants’ written submissions comprehensively or at all.

106. It has been necessary to set out each of the causes of action advanced by the Applicants – and each of the events and instances of conduct relied on in advancing them – in some detail to discern the real issues that require resolution. As a result, and regrettably, these reasons are significantly longer than they might otherwise have been in a claim of this kind.

107. It is in that context that I now turn to consider each aspect of the Applicants’ claim.

Consideration of the Applicants’ Claim: s 60 of the Australian Consumer Law

108. The Australian Consumer Law applies to the circumstances of the present case by reason of ss 28 and 32 of the Fair Trading Act.

109. As observed above, the Applicants’ claim is advanced on the basis that the Respondents have contravened sections 18, 60 and 61 of the Australian Consumer Law. I propose to deal with the claim advanced pursuant to s 60 of the Australian Consumer Law first.

General principles

110. Section 60 of the Australian Consumer Law provides:

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.

111. The standard of “due care and skill” contemplated by s 60 of the Australian Consumer Law is analogous to the standard of reasonable care in the tort of negligence: Thompson v Dominelli Group Pty Ltd t/as Dominelli Ford [2025] NSWCATAP 106 at [187]; Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 at [6]-[10]; Wade v J Daniels and Associates Pty Ltd [2020] FCA 1708 at [330]; Karpik v Carnival plc (The Ruby Princess) [2023] FCA 1280 at [445].

112. A consideration of whether or not services provided have been “rendered with due care and skill” (or whether they are fit for purpose) involves the application of an objective standard having regard to the particular circumstances of the case: Issacs v Michael [2024] NSWCATAP 236 at [83], citing Lets Go Adventures Pty Ltd v Barrett (supra) at [6] (s 60) and Karpiak v Carnival plc (The Ruby Princess) (supra) at [497] (s 61).

113. As indicated above, I am satisfied that Ms Shukla was solely responsible for the provision of the property management services, and that she alone performed that work. I am also satisfied that at all times Ms Shukla was (at least) a servant or agent of Principle 9 Real Estate Pty Ltd and was acting in accordance with her scope of authority as the “licensee in charge”. In those circumstances, any conduct engaged in by Ms Shukla is taken to be conduct that was also engaged in by Principle 9 Real Estate Pty Ltd: see s 87A of the Fair Trading Act. Accordingly, the Applicants’ claim for breach of s 60 of the Australian Consumer Law insofar as it alleges that the property management services were not provided with due care and skill is maintainable as against both respondents.

The Applicants’ case

114. The Applicants submitted that the Respondents were negligent in several ways, namely:

1. Failing to provide the Tenants with a key to the Property;

2. Failing to ensure routine inspections were conducted;

3. Failing to initiate discussion about the increase in rent before November 2022 despite being instructed to do so in August 2022;

4. Permitting two dogs to live in the property in the period 16 October 2022 to 20 May 2024 without approval;

5. Failing to complete a six-month inspection despite committing to do so on 21 October 2022 and 5 April 2023;

6. Failing to effect to a representation on 2 October 2022 that a $50 a week rental increase would take effect from 30 November 2022;

7. Advising Ms Raju on 6 November 2022 that if she agreed to accept a $25 rather than a $50 increase in weekly rent, she would be able to raise the rent in six months;

8. Advising Ms Raju that rent can be increased twice per year, which was wrong;

9. Issuing an invoice for the period March 2023 stating that the property was being rented out for $950 per week;

10. Negotiating an increase of weekly rent to $1,025 a week, which the Applicants say was “contrary” to instructions to seek an increase to $1,200;

11. Advising Ms Raju on 30 July 2023 that the rent on the Property had been increased to $1,025 when that had not occurred;

12. Issuing invoices between July 2023 and May 2024 stating that the property was being rented for $1,025 per week, when that was not true;

13. Failing to honour a commitment made by Ms Shukla on 3 April 2024 that she would arrange a property inspection of the Property that month;

14. Failing to advise the Applicants between 24 October 2021 and 24 July 2024 that the tenancy was for a five-year fixed term;

15. Failing to provide the Applicants with all property records during the term of the Agency Agreement, and on its termination;

16. Failing to advice the Applicants that the Tenants were in arrears of rent;

17. Failing to pay rent on a fortnightly basis in accordance with the Agency Agreement.

115. Together, those matters are described by the Applicants as constituting the “Negligent Performance” of the property management services by the Respondents. The Applicants relied on what they say was the Respondents’ “Negligent Performance” of the property management services as establishing that the Respondents had failed to comply with the guarantee in s 60 (and 61) of the Australian Consumer Law.

116. The Applicants also submitted that the Respondents had failed to comply with certain provisions of the “Property, Stock and Business Agents Act 2022 (NSW)” (which was renamed as the Property and Stock Agents Act 2002 (NSW) in about 2020) and the Property and Stock Agents Regulation 2022 (NSW).

117. In advancing that submission, the Applicant relied on ss 8(1)(a) and 37 of the Property and Business Agents Act, which provide that a person must be licenced to carry on the business of a real estate agent, and that the regulations may provide rules of conduct to be observed under such a licence. Clause 8 of the Property and Stock Agents Regulation prescribes rules of conduct for the purposes of s 37 and relevantly provides :

(1)    The rules set out in Schedules 1–4 are prescribed for the Act, section 37 as rules of conduct to be observed in the course of the carrying on of business or the exercise of functions under a licence or certificate of registration.

(2)    Schedules 1–4 apply as follows—

(a) Schedule 1 applies to all agents and assistant agents,

118. Pausing there, I am satisfied that the rules of conduct contained in schedule one to the Property and Stock Agents Regulation applied to the Respondents in the performance of services on behalf of the Applicants pursuant to the Property Management Agreement.

119. In its written submissions, the Applicants relied on the following aspects of schedule one of the Property and Stock Agents Regulations:

1. Clause 1, which relevantly provides:

An agent must have a knowledge and understanding of the following as necessary to enable the agent to exercise the agent’s functions lawfully—

(a)    the Act and the regulations under the Act,

(b)    other laws relevant to the category of licence or certificate of registration held by the agent, including laws relating to the following—

(i)    residential tenancy,

2. Clause 2, which relevantly provides:

An agent must comply with the fiduciary obligations arising as an agent.

3. Clause 3, which provides:

(1)    An agent must act honestly, fairly and professionally with all parties in a transaction.

(2)    An agent must not mislead or deceive a party in negotiations or a transaction.

4. Clause 4, which provides:

An agent must exercise reasonable skill, care and diligence.

5. Clause 6, which provides:

An agent must act in the client’s best interests at all times unless to do so is—

(a)    contrary to the Act or regulations under the Act, or

(b)     otherwise unlawful.

6. Clause 8, which provides:

(1)    An agent must not act as an agent, or represent that the agent is acting as an agent, on behalf of a person without the person’s written authority.

(2)    This section does not apply to a sale solely of livestock.

7. Clause 9, which provides:

An agent must act in accordance with a client’s instructions unless to do so is—

(a) contrary to the Act or regulations under the Act, or

(b) otherwise unlawful.

120. The Applicants submitted that the Respondents had breached their obligations under the Property and Stock Agents Act and Property and Stock Agents Regulations in that they:

1. Demonstrated a lack of knowledge and understanding of laws related to residential tenancy and of their obligations to the Applicants;

2. Failed to exercise reasonable skill, care and diligence in the performance of their obligations to the Applicants;

3. Failed to meet the fiduciary obligations to the Applicants;

4. Failed to act in the Applicants’ best interests;

5. Failed to act honestly, fairly, and professionally with the Applicants;

6. Actively and passively mislead and deceived the Applicants; and

7. Acted without the Applicants’ authority and instructions, including binding the Applicant to a five-year tenancy agreement despite only being authorised to let the premises for a term of six or 12 months.

121. The Applicants’ ultimate submission in relation to its claim under s 60 (and 61) of the Australian Consumer Law was that:

…the Tribunal ought to find:

a. There has been a major failure of the guarantees in ss 60-61 by reason of the Negligent Performance.

b.   The Respondents failed to perform their obligations in accordance with their Pre-Contract Representations, the Agency Agreement, and the requirements of the PSBA Act and the PSA Regs.

c.   The services of the Respondents were substantially unfit for the purpose for which services of the same kind are commonly supplied.

d.   The Applicant relied on the expertise of the Respondents and had an expectation that the services provide [sic] would result in a service that met the consumer guarantee.

e. As a consequence, the guarantees in ss 60-61 of the ACL have been breached.

f.   The respondents suffered damages as a consequence of the breaches by the Respondent.

Has the Applicant established that the Respondents failed to comply with the guarantee in s 60 of the ACL?

122. I am satisfied that the Respondents provided the managing agency services in trade or commerce.

123. As set out above, the Applicant relies on several factual matters as supporting the conclusion that the Respondents failed to comply with the guarantee contained in s 60 of the Australian Consumer Law. Some instances of conduct are relied on in different ways. Accordingly, it is necessary for me to address each matter raised individually as that will necessarily inform an assessment of whether they constitute a breach of s 60 of the Australian Consumer Law, and if so, what relief ought be granted. As will be seen below, I am satisfied that some (but not all) of the matters relied on by the Applicants are established.

124. I will deal first with the matters said by the Applicants to constitute the “Negligent Performance”.

125. In relation to the allegation that Respondents failed to provide the Tenants with a key to the property, I am satisfied that Ms Shukla asked Ms Raju to attend to this, and that Ms Raju agreed to do so. In that sense, I am satisfied that the Respondents did not provide the Tenants with the keys to the premises. I am not, however, satisfied that in doing so the Respondents can be said to have breached the consumer guarantee in s 60 of the Australian Consumer Law. Ms Shukla asked Ms Raju to provide the Tenants with the keys. Ms Raju agreed to do so and did so by leaving the keys in a hidden location at the Property. I do not consider there to be anything about those circumstances that rises so high as to constitute a contravention of s 60 of the Australian Consumer Law, or is otherwise “negligent”, notwithstanding the label applied to it by the Applicants.

126. In relation to the allegation that the Respondents “failed to ensure that routine inspections were conducted”, the allegation was expressed in absolute terms. It can only sensibly be understood (in the context of other allegations made concerning this same topic) as being an allegation that no routine inspections were conducted or arranged by the Respondents during their management of the Property. I am not satisfied that the Applicants have established that no routine inspections were conducted, or that the Respondents “failed to ensure that routine inspections were conducted”. Further, even if the Applicants did not intend to allege that no inspections were conducted, but that inspections were not conducted in a timely way, I am not satisfied that the evidence establishes that either.

127. In this respect, having regard to the documentary evidence, I am satisfied that an inspection was conducted on about 22 April 2023, and another was arranged for 29 June 2024 although it is unclear whether that inspection took place in circumstances where the Applicants terminated the Managing Agency Agreement. The evidence also indicates that an inspection was carried out in about April 2022. Accordingly, I am not satisfied that this allegation has been established or supports a conclusion that the Respondents contravened the guarantee in s 60 (or 61) of the Australian Consumer Law.

128. In relation to the allegation that the Respondents failed to “initiate discussion about the increase in rent before November 2022 despite being instructed to do so in August 2022”, as set out above, I am satisfied that there were discussions – including between the Ms Shukla and the Tenants – concerning the rental increase from about late September 2022 onwards, which ultimately resulted in the negotiated increase in rent to $925. I do not consider there to be any material difference between the period of August 2022 referred to by the Applicants, and when those discussions were commenced in about late September 2022. Accordingly, I am not satisfied that this matter supports a conclusion that the Respondents contravened the guarantee in s 60 (or 61) of the Australian Consumer Law.

122. In relation to the allegation that the Respondents permitted “two dogs to live in the property in the period 16 October 2022 to 20 May 2024 without approval”, I am satisfied that the Applicants were not aware that the Tenants kept dogs at the Premises until May 2024 and that the Respondents prepared the Residential Tenancy Agreement to note the dogs without first obtaining the Applicants’ instructions.

123. The allegation that the Respondents failed to “complete a six month inspection despite committing to do so on 21 October 2022 and 5 April 2023”, is a sub-set of the allegation that the Respondents failed to arrange inspections of the Property considered above. In any event, I am not satisfied that the matters relied on by the Applicants support a conclusion that the Respondents failed to comply with the guarantee in s 60 of the Australian Consumer Law. In this respect:

1. Ms Shulka sent an email to the Tenants on 17 October 2022, stating that “I need to organise a 6 month inspection of the property”. The text of that email had been drafted by Ms Raju and provided to Ms Shukla on 16 October 2022. Accordingly, I do not accept the label applied by the Applicants in their submissions to that communication accurately describes its content. In any event, there is no “commitment” made by Ms Shukla as to when the inspection was to be conducted.

2. On 5 April 2023, Ms Raju sent an email to Ms Shukla that stated, among other matters “[a]lso when have we booked in the property inspection?”. On 6 April 2023, Ms Shukla responded “[t]he inspection will be happening sometime this month. I will get back to you with the exact timing.” As set out above, I am satisfied that an inspection was conducted on 22 April 2023 – precisely as Ms Shukla had indicated would occur.

131. In relation to the allegation that the Respondents failed to give “effect to a representation on 2 October 2022 that a $50 a week rental increase would take effect from 30 November 2022”, I am satisfied that Ms Shukla represented to Ms Raju that the proposed increase of $50 per week would take effect from 30 November 2022. However, as set out above, Ms Raju later instructed Ms Shukla to ask the Tenants to indicate what they would accept by way of rent increase. Ms Raju later agreed to a $25 per week increase, which was then implemented. Accordingly, having regard to all the circumstances of the case, I am not satisfied that the evidence supports a conclusion – as advanced by the Applicants – that the Respondents “failed to give effect” to that representation. That is, in my view, a mischaracterisation of what occurred.

132. In relation to the allegation that Ms Raju was advised in about November 2022 that if she agreed to accept a $25 rather than a $50 increase in weekly rent, she would be able to raise the rent in six months, I am satisfied that Ms Shukla gave Ms Raju advice to that effect in November 2022. As set out above, Ms Shukla made several statements to the effect that the rent could be increased more than once per year during the tenancy. The contemporaneous correspondence (set out above) is also consistent with such advice having been given. That advice was wrong.

133. In relation to the allegation that Ms Raju was advised that that rent can be increased twice per year, for the same reasons as set out above I am satisfied that advice to that effect was given by Ms Shukla to Ms Raju on several occasions. As Ms Shukla later conceded, that advice was wrong.

134. In relation to the allegation that invoices were issued for the period March 2023 stating that the rent payable was $950 per week, I am satisfied that occurred. The rent payable was never $950 per week, and accordingly the content of statements that recorded that to be the case were plainly incorrect.

135. In relation to the allegation that the Respondents negotiated an increase of rent to $1,025 a week “contrary” to the Applicants’ instructions, the evidence establishes that Ms Shukla had discussions with the Tenants concerning the rent, and that agreement was reached to increase the rent to $1,025 per week in about May 2024 (which took effect in July 2024).

136. However, I am not satisfied that she did so in a manner that was “contrary” to the Applicants’ instructions as the Applicants put it. In this respect Ms Raju’s evidence was (emphasis added):

I did not instruct her to ask for a rent increase of $1,025, I was going to instruct her to increase the rent by $1,200, which is the market rent.

137. That evidence makes clear that at the time a rent increase to $1,025 per week was negotiated, Ms Raju had not yet given any instruction to increase the rent to $1,200 per week. Accordingly, whilst I am satisfied that the Respondents acted without the Applicants’ instructions in negotiating a rent increase to $1,025 per week, I reject the submission that they did so in a manner that was “contrary” to the Applicants’ instructions. That is not a matter of mere semantics given the way in which the Applicants seek to characterise aspects of the Respondents’ conduct.

138. In relation to the allegation that the Respondents had advised the Applicants on 30 July 2023 that the rent on the Property had been increased to $1,025 when that had not occurred, I am satisfied that a statement was issued to the Applicants on 30 July 2023 that recorded the rent payable as being $1,025 per week, and that the increase had taken effect on 3 July 2023. That advice was wrong and contrary to the actual position.

139. In relation to the allegation that invoices were issued between July 2023 and May 2024 stating that the property was being rented for $1,025 per week, when that was not true, I am satisfied that statements indicating the rent payable for the Property was $1,025 per week were issued between July 2023 and May 2024. Those invoices did not reflect the actual rent payable during that period.

140. Another allegation concerning property inspections was made by the Applicants, in that they also alleged that the Respondents failed to honour a commitment made by Ms Shukla on 3 April 2024 to conduct an inspection of the Property. However, the evidence cited in the Applicants’ written submissions as supporting that proposition related to the arranging of an inspection in April 2023, which I have dealt with above. In my view, the evidence does not otherwise support a conclusion that Ms Shukla made a “commitment” to conduct an inspection of the Property in April 2024. Further, and in any event, the evidence reveals that steps were taken by the Respondents to arrange an inspection in July 2024; however, the Property Management Agreement was terminated before that occurred.

141. In relation to the allegation that the Respondents failed to advise the Applicants between 24 October 2021 and 24 July 2024 that the tenancy was for five-year fixed term, I am satisfied that this allegation is established. In this respect, I am satisfied that the Respondents did not seek the Applicants’ instructions before signing the Residential Tenancy Agreement with a fixed term of 5 years, and that that the first time that the Applicants became aware that the tenancy was for a five-year period was in the context of these proceedings.

142. In relation to the allegation that the Respondents failed to provide the Applicant with all property records during the term of the Agency Agreement, and on its termination, I am satisfied that this allegation is established. Some records were provided; however, I am satisfied from the evidence before the Tribunal that not all records have been supplied.

143. In relation to the allegation that the Respondents failing to advise the Applicants that the Tenants were in arrears of rent, I am not satisfied that Tenants were ever in “arrears”.

144. As set out above, I am satisfied that, from time to time, statements issued to the Applicants identified that the rent payable for the Property was higher than it was. To the extent that this allegation is founded on the premise that from time to time the Tenants were in “rental arrears” because they had not paid rent in accordance with those higher (yet incorrect) figures, I am not satisfied the allegation is supported by the evidence. Those statements show the Tenants paying a lower rate of rent than the statements suggest should have been paid. For example, the statement issued on 28 February 2023 stated that the rent payable is $950 per week, but that the Tenants had paid rent at the rate of $925 per week (i.e., the correct amount). In that sense, the statement showed that the Tenants were paying rent at a lower rate than the statement suggested should have been paid.

145. To the extent that the allegation is founded on the premise that the Tenants were in arrears from time to time, and that the Applicant was not informed of that, I am not satisfied on the evidence before the Tribunal that the Tenants were ever in rental arrears. In assessing that question, regard must be had to their obligations under the Residential Tenancy Agreement from time to time. Accordingly, I am not satisfied that this allegation is established.

146. In relation to the allegation that the Respondents failed to pay rent to the Applicants on a fortnightly basis in accordance with the Agency Agreement, the statements in evidence reveal that payments were made sometimes monthly and at others on a more frequent basis, including fortnightly. Accordingly, this allegation is established in part. However, I am not satisfied that the failure to pay rent on a fortnightly basis constitutes a failure to comply with the consumer guarantee in s 60 (or 61) of the Australian Consumer Law. That failure does not, in my view, support a conclusion that the services were not provided with due care or skill, or that they were not fit for their purpose.

147. I now turn to consider whether the Applicants have established that the Respondents had failed to comply with aspects of the rules of conduct that applied to them by reason of the Property and Stock Agents Act and the Property and Stock Agents Regulation as alleged by the Applicants in their written submissions.

148. In relation to the allegation that the Respondents demonstrated a “lack of knowledge and understanding of laws related to residential tenancy in their performance of their obligations to the Applicant”, I am satisfied that this allegation is established. I am satisfied that Ms Shukla demonstrated a lack of understanding of the requirements of the Residential Tenancies Act in relation to the circumstances in which rent can be increased on several occasions during the period that the Property Management Agreement was on foot.

149. In relation to the allegation that the Respondents failed to exercise reasonable skill, care, and diligence in the performance of their obligations to the Applicants, I am satisfied that this allegation is established. Having regard to the conclusions reached above, I am satisfied that the Respondents failed to exercise reasonable skill, care, and diligence in that they failed to obtain and act on the Applicants’ instructions, and failed to give correct advice from time to time in that they:

1. Failed to obtain the Applicants’ instructions to execute the Residential Tenancy Agreement on the Applicant’s behalf for minimum fixed term of 5 years;

2. Failed to obtain the Applicants’ instructions to execute the Residential Tenancy Agreement on the Applicant’s behalf that permitted the Tenants to keep dogs at the premises;

3. Failed to provide the Applicants with accurate advice as to the circumstances in which rent could be increased under the Residential Tenancy Agreement;

4. Provided the Applicants with incorrect advice as to the rent that was payable by the Tenants from time to time; and

5. Failed to obtain the Applicants’ instructions before negotiating a rent increase to $1,025 per week.

150. Although I am satisfied that other factual allegations made by the Applicants as constituting the “Negligent Performance” were established (such as delivery of keys to the Tenants and the timing of payments to the Applicants) I am not persuaded that they constituted a failure by the Respondents to exercise “reasonable skill, care and diligence”.

151. In relation to the allegation that the Respondents failed to meet their fiduciary obligations to the Applicant, I accept that the Respondents owed the Applicants a fiduciary duty, whether by reason of the Rules of Conduct, or given the nature of the relationship between a real estate agent and its client: Gonsalves v Debreczeni (1998) 9 BPR 16,689. However, although the Applicants’ written submissions advanced the proposition that the Respondents were in breach of those obligations, those submissions did not identify with precision the way in which the Respondents were said to have done so.

152. Identifying that a fiduciary relationship exists is only part of the inquiry. It is necessary to determine – with precision – the particular duties that are owed as a consequence of that relationship existing: see Pilmer v Duke Group Ltd (In Liq) (2001) 207 CLR 165 at [77], per McHugh, Gummow, Hayne and Callinan JJ; Anderson v Cacaccord Genuity Financial Ltd (2013) 113 NSWLR 151 at [152]-[166].

153. Where a fiduciary duty is owed, it is sometimes said that the party owing the duty is obliged to act in the “best interests” of the party to whom it is owed: see Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 97, per Mason J. In doing so, the party owing the duty is subject to an obligation not to obtain any unauthorised benefit from the relationship, and to not be in a position of conflict: Breen v Williams (1996) 186 CLR 71 at 113, per Gaudron and McHugh JJ. For example, a fiduciary is under an obligation not to promote the fiduciary’s personal interests by making or pursuing a gain in circumstances where there is a conflict (or real or substantial possibility of a conflict) between the personal interests of the fiduciary and to whom the duty was owed without the informed consent of that party: see Pilmer v Duke Group (In Liq) (supra) at [78]. That was the basis on which Young J (as he then was) approached a consideration of a claim against a real estate agent for breach of fiduciary duty in connection with the sale of a property: see Gonsalves v Debreczeni (supra).

154. In the present case, I am not satisfied that the Respondents promoted their own interests over that of the Applicants or made or pursued a personal gain in circumstances where there was a conflict between their own interests and those of the Applicants. Fiduciary obligations are fundamentally distinct from those arising in contract or tort: Pilmer v Duke Group (In Liq) (supra) at [71]. Accordingly, it does not follow that conduct that may sustain a finding that a party is in breach of its contractual obligations, or its duty of care, or its obligations imposed by the Australian Consumer Law will also be in breach of its fiduciary obligations. In any event, I am not satisfied that the conduct relied upon by the Applicants as establishing contraventions of the Australian Consumer Law, a breach of contract, or that the Respondents were negligent (which is largely the same in each case) amounts to a breach by the Respondents of their fiduciary obligations.

155. Accordingly, I am not satisfied that the Applicants have established that the Respondents were in breach of their fiduciary obligations.

156. In relation to the allegation that the Respondents failed to act honestly, fairly, and professionally with the Applicant, I am satisfied that the allegation is made out but only in part. To the extent that the Respondents gave the Applicant incorrect advice as to the circumstances in which the rent could be increased, and the rent payable from time to time, and acted without instructions, I am satisfied that they failed to act professionally with the Applicants. However, I am not satisfied that in doing so the Respondents failed to act “honestly”, or that it involved an element of “unfairness”. In this respect, I am not satisfied that the Respondents acted in a dishonest way in their dealings with the Applicants; a party can be in breach of their obligations without there being elements of dishonesty, and I am not satisfied that the Applicants have established that the respondents were dishonest. Rather, to the extent that the Respondents made incorrect statements from time to time, I am not satisfied that they did so in deliberately dishonest conduct. Similarly, I do not consider that the Respondents failed to act “fairly” with the Applicants in that I do not think that the Respondents used their position to gain an unfair advantage, or otherwise improperly.

157. In relation to the allegation that the Respondents “actively and passively” misled and deceived the Applicant, for the reasons outlined below I am satisfied that in some respects, the conduct of the Respondents was misleading or deceptive within the meaning of s 18 of the Australian Consumer Law. To that extent, I am satisfied that the Respondents misled the Applicants. However, to the extent that the allegation goes further and suggests that the Respondents deliberately and knowingly misled or deceived the Applicants (or sought to do so), I am not satisfied that the Applicants have established those serious allegations. As I have observed above, a party can be negligent, or engage in misleading and deceptive conduct, without engaging in deliberately misleading or dishonest conduct.

158. In relation to the allegation that the Respondents acted without the Applicants’ authority and instructions, as set out above, I am satisfied that the Respondents acted without the Applicants’ instructions in executing the Residential Tenancy Agreement for a five year fixed term, including dogs in the Residential Tenancy Agreement, and negotiating a rent increase to $1,025 per week.

159. As I have indicated above, I am satisfied that several (but not all) of the allegations said to comprise the “Negligent Performance” by the Respondents, and the failures to comply with the requirements of the Property and Stock Agents Act, are established. However, that does not mean that each of them support a conclusion that the Respondents have contravened the guarantee in s 60 of the Australian Consumer Law. In my view, not all those matters rise to that level.

160. However, having regard to the conclusions that I have reached above, I am satisfied that the Respondents failed to provide the services required of them pursuant to the Managing Agency Agreement with due care and skill in that the Respondents:

1. Failed to obtain the Applicants’ instructions to execute the Residential Tenancy Agreement on the Applicants’ behalf for minimum fixed term of 5 years;

2. Failed to obtain the Applicants’ instructions to execute the Residential Tenancy Agreement on the Applicants’ behalf that permitted the Tenants to keep dogs at the premises;

3. Failed to provide the Applicants with accurate advice as to the circumstances in which rent could be increased under the Residential Tenancy Agreement;

4. Provided the Applicant with incorrect advice as to the rent payable for the Property from time to time; and

5. Failed to obtain the Applicants’ instructions before negotiating a rent increase to $1,025 per week.

161. Accordingly, I am satisfied that the Applicants have established that the Respondents contravened the consumer guarantees in s 60 of the Australian Consumer Law.

Relief

162. In the Applicants’ written submissions, the Applicants’ counsel described the claim for damages as follows:

1. $13,400 in “loss of potential rent” as a result of the failure of the Respondents to secure rent increases for the Property;

2. $6,066.23 reflecting management fees paid by the Applicant, that the Applicant says were for services “not provided” in accordance with the Agency Agreement or negligently provides and/or provided contrary to ss 60 and 61 of the ACL;

3. $990, being the “letting fee” paid by the Applicant and which the Applicant says were for “services not provide by the Respondents in accordance with the Agency Agreement and or negligently provided and/or provided contrary to ss 60 and 61 of the ACL”.

1. failing to obtain the Applicants’ instructions to execute the Residential Tenancy Agreement on the Applicants’ behalf that permitted the Tenants to keep dogs at the premises;

2. failing to provide the Applicants with accurate advice as to the circumstances in which rent could be increased under the Residential Tenancy Agreement;

3. providing the Applicants with incorrect advice as to the rent payable for the Property from time to time; and

4. failing to obtain the Applicants’ instructions before negotiating a rent increase to $1,025 per week,

I am satisfied that the Respondents’ services were “not reasonably fit for purpose” of achieving effective management of the Property, which was efficient and consistent. By failing to give the Applicants accurate advice as to the circumstances in which rent could be increased, I am satisfied that the services were not reasonably fit for the purpose of achieving maximum income potential.

224. For those reasons, I am satisfied that the Applicants have established that the Respondents contravened s 61(1) of the Australian Consumer Law.

Relief

225. The Applicants’ claim for relief in respect of their claim pursuant to s 61 of the Australian Consumer Law is identical to that advanced in relation to their claim pursuant to s 60.

226. Accordingly, it is sufficient for me to observe that I would have assessed the Applicants’ claim for relief in relation to its claim pursuant to s 61 of the Australian Consumer Law in the same way as their claim pursuant to s 60 set out above.

Consideration of the Applicant’s case: s 18 of the Australian Consumer Law

General principles

227. Section 18(1) of the Australian Consumer Law provides:

A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

228. The principles that apply to a consideration of whether there has been a contravention of s 18 of the Australian Consumer Law were recently considered by the Court of Appeal in Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35, in which Bell CJ (with whom Stern JA and Basten AJA agreed) relevantly held:

100. Direct liability for misleading and deceptive conduct, under s 18 of the ACL, depends upon whether the impugned person’s conduct is objectively misleading or deceptive, or likely to mislead or deceive: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 at 198; [1982] HCA 44 (Parkdale); Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435; [2013] HCA 1 at [6]- [9].

101.   That is, a person’s knowledge or intention to mislead or deceive is immaterial to determining whether that person is liable for misleading and deceptive conduct...

102. Section 18 of the ACL, and its predecessor, s 52 of the Trade Practices Act 1974 (Cth), are concerned with conduct, although cases, including the present, are frequently pleaded by reference to representations. It is sufficient that the conduct leads or is likely to lead another party into error: Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564; [2000] FCA 1572 at [63], per French J (with whom Beaumont and Finkelstein JJ agreed); Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 at [15] (Miller)…

229. Accordingly, in assessing a claim that a party has engaged in conduct that contravenes s 18 of the Australian Consumer Law, it is necessary to identify the particular conduct and then to consider whether that conduct – considered as a whole and in all of the circumstances of the case – is misleading or deceptive or likely to mislead or deceive. The conduct must lead, or be likely to lead persons to whom it is directed, into error although there is no requirement for there to have been an intention to mislead or deceive: see the discussion in Ni v Car Skinning Pty Ltd and Performance Auto Trader Pty Ltd [2023] NSWCATCD 62 at [70]-[79].

The Applicants’ case

230. In advancing this aspect of their claim, the Applicants rely on what are described as the “Pre-Contract Representations” (also referred to as the “Pre-Agreement Representations”) and the “Further Representations”. It is that conduct that is said to be misleading or deceptive.

231. The Applicant submits that the “Pre-Contract Representations” were conveyed in Ms Shukla’s email of 8 August 2021, and constituted representations that the Respondents:

1. were “dedicated property management experts”;

2. would maintain the Property to the “highest of standards”;

3. would help the Applicants to “achieve maximum income potential”; and

4. were efficient and consistent.

232. It may immediately be observed that the “Pre-Contract Representations” included references to future matters, in particular that the Respondents “would maintain the Property to the highest of standards” and would help the Applicants to “achieve maximum income potential”. In those circumstances, s 4 of the Australian Consumer Law applies. It relevantly provides:

(1)    If:

(a)   a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and

(b)    the person does not have reasonable grounds for making the representation;

the representation is taken, for the purposes of this Schedule, to be misleading.

(2)    For the purposes of applying subsection (1) in relation to a proceeding concerning a representation made with respect to a future matter by:

(a)    a party to the proceeding; or

(b)    any other person;

the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.

(3)    To avoid doubt, subsection (2) does not:

(a)    have the effect that, merely because such evidence to the contrary is adduced, the person who made the representation is taken to have had reasonable grounds for making the representation; or

(b)    have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making the representation.

(4)    Subsection (1) does not limit by implication the meaning of a reference in this Schedule to:

(a)   a misleading representation; or

(b)    a representation that is misleading in a material particular; or

(c)    conduct that is misleading or is likely or liable to mislead;

and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation.

233. The effect of that provision is that, unless the evidence is adduced to the effect that the Respondents had a reasonable basis for making representations to the effect that they “would maintain the Property to the highest of standards” and would help the Applicants to “achieve maximum income potential” are taken to have been misleading.

234. The Applicants say that the “Further Representations” amounted to representations that “all was in order in respect of the Respondents’ conduct” as the Applicants’ agent. By that, I understand the Applicants’ case to be that the conduct relied upon as constituting the “Further Representations” conveyed a representation to the Applicants that the tenancy was being managed appropriately, including that what the Applicants were told by the Respondents from time to time in relation to it was accurate.

235. The Applicants submitted that such a representation was conveyed by:

1. a statement by Ms Shukla on 2 October 2022 that a $50 a week rent increase would take effect from 30 November 2022;

2. a statement by Ms Shukla on 6 November 2022 that if the Applicants agreed to accept a $25, rather than $50, increase in weekly rent, a further rent increase was possible in six months;

3. a statement by Ms Shukla on 22 March 2023, that rent can be increased twice per year;

4. invoices being issued for the period March 2023 stating that the rent payable in respect of the Property was $950 per week (which was not the case);

5. a statement by Ms Shukla on 30 July 2023 that the rent had been increased to $1,025 per week;

6. invoices being issued in the period July 2023 to May 2024 stating that the rent payable in respect of the Property was $1,025 per week;

7. a statement by Ms Shukla on 3 April 2024 that she would arrange a property inspection of the Property that month;

8. a statement by Ms Shukla that she had given the Tenants a notice of rental increase and that the new rent was to “kick in soon”;

9. between 24 October 2021 and 24 July 2024, issuing statements (direct and implied) that the tenancy was for a period of 12 months only;

10. a failure to advise the Applicants that the Tenants had dogs.

236. The Applicants submit that the “Pre-Contract Representations” and the “Further Representations” were:

1. made by both Respondents; and

2. were made in contravention of s 18 of the Australian Consumer Law.

237. The Applicants say that they relied on the “Pre-Contract Representations” and the “Further Representations” and have suffered damage as a result of the contravening conduct.

Have the Applicants established that the Respondents contravenes s 18 of the Australian Consumer Law?

238. In assessing this aspect of the Applicants’ claim, it is necessary to consider whether:

1. The “Pre-Contract Representations” and the “Future Representations” were conveyed, and if so, by whom;

2. Whether in conveying the “Pre-Contract Representations” and the “Future Representations”, the Respondents (or either of them) engaged in conduct that contravened s 18 of the Australian Consumer Law; and

3. If so, whether the Applicants are entitled to damages pursuant to s 236 of the Australian Consumer Law in respect of that contravention.

239. I am satisfied that the “Pre-Contract Representations” were conveyed. They flow from the plain words of Ms Shukla’s email of 8 August 2021. In relation to those statements about what the Respondents would do – i.e., “help you achieve your maximum income potential” and “maintain [the] property to the highest of standards”, they constituted representations as to future matters. I am not satisfied that there was evidence adduced that established that the Respondents had a reasonable basis for making those representations, accordingly, they are deemed to have been misleading by reason of s 4(2) of the Australian Consumer Law.

240. I am also satisfied that the “Further Representations” were conveyed in the sense that I am satisfied that, by reason aspects of the Respondents’ conduct relied on by the Applicants, a representation was conveyed that “all is well” with the management of the tenancy – in the sense that it was being managed appropriately.

241. I am also satisfied that the relevant conduct in making the Pre-Contract Representations and the Further Representations was engaged in by both Respondents. As the Appeal Panel observed in Culleton v Tonks [2025] NSWCATAP 129 at [103]-[114], there can be situations where an act is both the act of a corporation and the act of an individual.

242. In Care A2 Plus Pty Ltd v Pichardo (supra), Bell CJ relevantly held:

106.   More than one individual may engage in the same or related misleading or deceptive conduct, or, alternatively, a person may become knowingly involved in such conduct. Sometimes, a person (or corporation) who or which otherwise appears to have engaged in misleading or deceptive conduct by, for example, making a particular representation that engages the statute, may escape liability if they are a mere conduit of misleading information on behalf of another. As Mason ACJ, Wilson, Deane and Dawson JJ observed in [Yorke v Lucas at 666], persons who are mere conduits of information are not liable for misleading and deceptive conduct:

“That does not, however, mean that a corporation which purports to do no more than pass on information supplied by another must nevertheless be engaging in misleading or deceptive conduct if the information turns out to be false. If the circumstances are such as to make it apparent that the corporation is not the source of the information and that it expressly or impliedly disclaims any belief in its truth or falsity, merely passing it on for what it is worth, we very much doubt that the corporation can properly be said to be itself engaging in conduct that is misleading or deceptive.”

107. The status of an employee or officer does not necessarily immunise him or her from liability for contravening conduct engaged in in that capacity: Anchorage Capital Master Offshore Ltd v Sparkes (2023) 111 NSWLR 304; [2023] NSWCA 88 at [362] (Anchorage); Australian Securities and Investments Commission v Narain (2008) 169 FCR 211; [2008] FCAFC 120 at [94]. The question is whether the role of the individual was more than merely ministerial.

243. I am not satisfied that Ms Shukla’s role can be described as one of a “conduit” or “merely ministerial” in the sense contemplated by the authorities referred to above. Rather, the evidence satisfies me that Ms Shukla was solely responsible for the management of the tenancy, and was (despite what appeared to be a suggestion to the contrary during the hearing) the person responsible for communicating with the Applicants in relation to matters arising under the Managing Agency Agreement. In that sense, Ms Shukla was not merely passing on information as a conduit or intermediary, she was the ultimate source of the information being conveyed (see, e.g., Care A2 Plus Pty Ltd v Pichardo (supra) at [165]-[170]).

244. Accordingly, I am satisfied that the impugned conduct, being the making of the Pre-Contractual and Further Representations, was conduct engaged in by both Respondents for the purposes of s 18 of the Australian Consumer Law.

245. Other than to the extent that they have been deemed misleading by reason of the operation of s 4 of the Australian Consumer Law, I am not otherwise satisfied that the Applicants have established that the Pre-Contract representations were misleading or deceptive or likely to mislead or deceive for the purposes of s 18 of the Australian Consumer Law. In this respect, the fact that (as I have found) the Respondents contravened s 60 and 61 of the Australian Consumer Law does not of itself, make representations made prior to the Managing Agency Agreement being entered into that they were “dedicated property management experts” and were “efficient and consistent” misleading or deceptive. I am not satisfied on the evidence that those aspects of the “Pre-Contract Representations” constituted conduct that was (at the time that they were made) objectively misleading or deceptive, or likely to mislead or deceive.

246. In relation to the “Further Representations”, I am satisfied that by engaging in conduct that conveyed those representations, the Respondents contravened s 18 of the Australian Consumer Law in the sense that I am satisfied that, aspects of the Respondents’ conduct conveyed a representation that “all is well” with the management of the tenancy – in the sense that it was being managed appropriately. In this respect, I am satisfied that such a representation was objectively misleading in circumstances where:

1. The advice given by Ms Shukla on 6 November 2022 that if the Applicants agreed to accept a $25, rather than $50, increase in weekly rent, the rent could be increase again in six months was wrong;

2. The statement made by Ms Shukla on 22 March 2023 (and at other times) that rent can be increased twice per year was wrong;

3. Invoices issued by the Respondents in March 2023 stating that the property was being rented out at $950 per week did not reflect the actual rent payable by the Tenants;

4. The statement by Ms Shukla on 30 July 2023 that the rent had been increased to $1,025 per week was incorrect;

5. Invoices issued to the Applicant in the period July 2023 to May 2024 stated that the Property was being rented out at a rent of $1,025 per week did not reflect the actual rent payable by the Tenants;

6. The statement by Ms Shukla that she had given the Tenants a notice of rental increase and that the new rent was to “kick in soon” did not reflect what had occurred;

7. Various statements made by Ms Shukla conveyed the impression that the Residential Tenancy Agreement had a fixed term of 12 months rather than 5 years.

247. I am, however, not satisfied that the other conduct relied on by the Applicants as conveying the “Further Representations” was misleading or deceptive, or likely to mislead or deceive, within the meaning of s 18 of the Australian Consumer Law.

248. Accordingly, I am satisfied that the Applicants have established that the Respondents contravened s 18 of the Australian Consumer Law.

Relief

249. Pursuant to s 236 of the Australian Consumer Law, where a party proves a relevant contravention of a provision within chapters 2 or 3 (of which s 18 is one), they may seek damages for the loss or damage they have suffered “because of” that conduct. In order to establish that the loss or damage has been suffered “because of” the relevant conduct, a party is not required to prove that the contravening conduct was the sole cause of the loss or damage suffered. It is sufficient if the conduct materially contributed to the loss or damage: Medical Device Technologies Pty Ltd v Health Administration Corporation [2024] NSWCA 142 at [136]-[137], citing Henville v Walker (2001) 206 CLR 459.

250. It has been said that a victim of misleading or deceptive conduct is entitled to an award of damages “sufficient to put that person in the position they would have been in had the misleading or deceptive conduct not occurred”: Larsen ATF Larsen Superannuation Fund v Tastec Pty Ltd [2025] NSWCA 145 at [50].

251. The Applicants did not distinguish their claim for relief across any of the causes of action relied upon. Rather, they claimed the same amounts whether the claim was considered as being one for relief for a contravention of ss 18, 60 or 61 of the Australian Consumer Law, or in negligence or contract. That approach did not pose any difficulty in relation to the claims advanced pursuant to s 60 and 61 of the Australian Consumer Law in circumstances where both claims went to the nature of the services that were provided by the Respondents to the Applicants.

252. However, the claim pursuant to s 18 of the Australian Consumer Law is based on different conduct and gives rise to different considerations. The question that then arises is what, if any, amount of damages should be awarded to the Applicants to put them “in the position they would have been in had the misleading or deceptive conduct not occurred”?

253. The Applicants’ written submissions state that “the Applicant has suffered the damages claimed as a result of the Respondents’ conduct”. However, those submissions did not address how the Applicants suffered loss or damage in the amounts claimed “because of” the Applicants misleading or deceptive conduct engaged in contrary to s 18 of the Australian Consumer Law. Significantly, it does not follow – as the Applicants’ case seems to assume – that because the Applicants have established that the Respondents contravened s 18 of the Australian Consumer Law in two respects, that they are entitled to the same relief claimed in relation to other causes of action. It remains necessary for the Applicants to establish that they suffered loss or damage “because of” the contravention of section 18 of the Australian Consumer Law.

254. Having regard to the evidence before the Tribunal, and the manner in which the Applicants’ case was advanced, I am not satisfied that the Applicants have established that they suffered any loss or damage “because of” the Respondents’ conduct that I have found contravened s 18 of the Australian Consumer Law. Put briefly:

1. In relation to the “Pre Contract Representations”, I am not satisfied that the Applicants have established that they suffered any loss or damage because of that conduct. Even if they relied on that conduct in entering into the Managing Agency Agreement, I am not persuaded that the Applicants have established that they suffered any loss or damage in doing so, particularly in circumstances where they have not sought to advance what might be described as a “no transaction case”. Put another way, I am not satisfied that the Applicants have established that they are entitled to any amount to put them in the position that they would have been in had that conduct not occurred.

1. In relation to the “Further Representations”, I am not satisfied that the Applicants have established that they suffered any loss or damage because of that conduct. Even if they relied on a representation to the effect that “all was well” with the management of the tenancy, the Applicants have not identified what damage they suffered because of any reliance on that representation. Again, I am not satisfied that the Applicants have established that they are entitled to any amount to put them in the position that they would have been in had that conduct not occurred.

255. For those reasons, the Applicants’ claim under s 18 of the Australian Consumer Law will be dismissed.

Consideration of the Applicant’s claim: negligence

256. As observed above, the Applicants’ claim in negligence was advanced on the same basis as the claim pursuant to ss 60 and 61 of the Australian Consumer Law. During the hearing on 17 February 2025, the Applicants’ counsel made clear that this aspect of the Applicants’ claim went no further than their claim pursuant to s 60 of the Australian Consumer Law.

General principles

257. Briefly stated, in order to establish their claim in negligence, the Applicants must establish that the:

1. respondents owed a duty of care;

2. respondents breached that duty of care;

3. breach of the duty of care caused the Applicants to suffer damage; and

4. damage suffered by the Applicants was not too remote a consequence of the breach of duty.

See, for example, Tame v New South Wales (2002) 211 CLR 317 at [88], per McHugh J.

258. The provisions of the Civil Liability Act 2002 (NSW) apply to a consideration of any claim in negligence: s 5A, Civil Liability Act.

Have the Applicants established their claim in negligence?

259. Having regard to the conclusions I have already reached – and in circumstances where this claim relies on the same matters as the Applicants claim pursuant to s 60 and 61 of the Australian Consumer Law – my conclusions as to the Applicants’ claim in negligence can be expressed briefly.

260. I am satisfied that the Respondents owed the Applicants a duty of care to provide the property management services – including the provision of advice – with reasonable care and skill. In this respect, in Rawlinson and Brown Pty Ltd v Whitham (1995) Aust Torts Reports 81-341, Kirby P (with who Mahoney JA agreed), held:

A duty to exercise care in the provision of information and advice arises:

“... whenever a person gives information or advice to another upon a serious matter in circumstances where the speaker realises, or ought to realise, that he is being trusted to give the best of his information or advice as a basis for action on the part of the other party and it is reasonable in the circumstances for the other party to act on that information or advice.”

See Mason J in Shaddock and Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225 at 250. In the words of Gibbs CJ (at 231):

“It would appear to accord with general principles that a person should be under no duty to take reasonable care that advice or information which he gives to another is correct, unless he knows, or ought to know, that the other relies on him to take such reasonable care and may act in reliance on the advice or information which he is given, and unless it would be reasonable for that person so to rely and act.”

Gibbs CJ continued, at 235:

“... the person giving the information to another whom he knows will rely upon it in circumstances in which it is reasonable for him to do so is under a duty to exercise reasonable care that the information given is correct.”

The foregoing duty undoubtedly extends, in defined circumstances, to real estate agents. In Presser v Caldwell Estates Pty Ltd [1971] 2 NSWLR 471 (CA), Mason JA stated:

“There is no reason to suppose that a real estate agent is immune from the imposition of a duty to take care in the provision of advice which he may be called upon to give in the course of his business. He is an expert whose business it is to examine and evaluate real property, to report on its suitability for purchase or sale, for leasing, for investment or development. It may well be that if an inquiry be made of a real estate agent whether certain land is suitable for building development in circumstances in which it is apparent that the inquirer expects the agent to use his skill and judgment in examining the land and formulating an answer and that the inquirer proposes to rely upon the answer then the agent would be liable in negligence if his answer be given carelessly and if it leads the inquirer to act to his economic detriment.”

261. Here, having regard to the content of the email sent by the Respondents on 8 April 2021, and the fact that the Applicants then entered into the Property Management Agreement, I am satisfied that the Respondents knew – or ought to have known – that they were being relied on by the Applicants to provide such advice and services as were required to manage the tenancy of the Property appropriately, including to maximise the Applicants’ financial returns from that management, in particular through appropriate rent reviews and increases.

262. In Sun v Lumi Skin Clinics Pty Ltd (supra) the Tribunal (like here) was faced with a claim pursuant to s 60 of the Australian Consumer Law and in negligence in relation to the provision of services. The Tribunal summarised the applicable principles as follows:

47.   Under negligence law, professionals are required to exercise the level of care and skill that a reasonably competent professional in their field would exercise. As a rule, a professional is not negligent if acting in accordance with a practice that is accepted at that time as proper by a responsible body of opinion even though other professionals adopt a different practice: (the “Bolam” principle):

In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment: Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 at 881H, per Lord Scarman.

48. This is often referred to as the “reasonable skill and care” standard and is enshrined in s 5O of the Civil Liability Act 2001 (NSW) (the CL Act). If a professional fails to meet this standard and causes harm or loss, they can be held liable for negligence or, under the ACL, for breach of the guarantee in s 60.

49.   A professional may have provided their services with due care and skill even if they did not achieve a particular result, or if the outcome of their work has resulted in some injury, loss or damage to their client. This is because the obligation to exercise due care and skill is about the process and the standard of the professional’s work, and not necessarily the outcome. For example:

(1)   Reasonable Efforts: The professional might have taken all reasonable steps and precautions that a competent professional would take under similar circumstances. This includes using appropriate materials, following professional standards, and applying their expertise correctly.

(2)   External Factors: Sometimes, factors beyond the professional’s control can affect the outcome. For example, unexpected weather conditions, defective materials not supplied by the professional or the intervention of third parties can impact the final result.

(3)   Complexity and Uncertainty: Certain tasks may have inherent complexities or uncertainties that make it difficult to guarantee a specific result or outcome. For instance, diagnosing and fixing an intermittent fault can be challenging, and despite the professional’s best efforts, the issue might not be fully resolved on the first attempt.

(4)   Client Instructions: If the client provides specific instructions or constraints that limit the professional’s ability to achieve the desired result, the professional may still be considered to have exercised due care and skill if they followed those instructions competently.

(5)   Professional Judgment: The professional might have exercised their professional judgment in a way that was reasonable at the time, even if it did not lead to the desired outcome. Professional judgment involves making decisions based on experience, knowledge, and the information available at the time.

50.   In summary, the standard of due care and skill focuses on the quality and appropriateness of the professional’s actions and decisions, rather than the result which was achieved. This ensures that professionals are judged fairly based on their professional conduct and efforts, rather than solely on the outcome of their work.

263. In the present case, for the reasons set out above in relation to the claim advanced pursuant to s 60 of the Australian Consumer Law, I am satisfied that the Respondents failed to provide the property management services, including providing the Applicants with advice as to when the rent under the terms of the Residential Tenancy Agreement could be increased, with reasonable care and skill.

264. The Respondents denied that they did anything wrong in the provision of those services. I understand that to be an assertion that they acted appropriately at all times. I reject that proposition, and I am not satisfied that the Respondents acted in acted in a manner was “widely accepted in Australia by peer professional opinion as competent professional practice” in providing the services: s 5O, Civil Liability Act. To the contrary, in my view “competent professional practice” extends – at a minimum – to obtaining instructions, acting in accordance with them (unless that would be otherwise contrary to law) and providing timely and accurate advice. That did not occur in the present case.

265. I am satisfied that the Applicants has suffered damage as a result of that breach, in that they:

1. paid for a level of service that was not received, including through the provision of inaccurate advice; and

2. lost the opportunity to secure increases in rent from time to time.

266. I am also satisfied that such damage was caused by the Respondents’ breach of duty.

267. In reaching that conclusion, I am satisfied that the risk of harm to the Applicants that arose through a failure to provide accurate advice and obtain and act upon instructions, was not insignificant, was foreseeable, and that a reasonable person on the Respondents’ position would have taken appropriate steps to ensure that advice provided by them was accurate and that they obtained and acted upon instructions in dealings under a residential tenancy agreement: see s 5B and 5C, Civil Liability Act. There is no suggestion that any other matter or factor operated to cause the Applicants’ harm.

268. As to damages, I would assess the Applicants’ loss in the same manner as for the claims pursuant to ss 60 and 61 of Australian Consumer Law claim set out above. No suggestion was made by the Applicants that it should be entitled to a greater level of damages pursuant to any cause of action over any other. In any event, having regard to the evidence before the Tribunal, I do not consider that there is any basis to assess damages in respect of the Applicants’ claim in negligence in a different amount to that arrived at above.

Consideration of the Applicants’ claim: breach of contract

269. As set out above, during the hearing on 17 February 2025, the Applicants’ counsel advanced a claim for breach of contract. That claim was not advanced in the Applicants’ written submissions.

270. As that claim was developed, it relied on the same conduct as advanced in the Applicants’ claims pursuant to s 60 and 61 of the Australian Consumer Law, and in negligence. Accordingly, this aspect of the Applicants’ claim can be addressed briefly.

General principles

271. A contract for the supply of services contains an implied warranty that the services will be supplied with due care and skill and will be fit for purpose.

272. Although the guarantees that arise pursuant to ss 60 and 61 of the Australian Consumer Law are not necessarily co-extensive with a duty that may arise under contract, in this case I am satisfied that the implied warranty in the Managing Agency Agreement is relevantly identical in scope to the consumer guarantee in ss 60 and 61 of the Australian Consumer Law: compare Scenic Tours v Moore (2018) 361 ALR 456 at [174]; Flight Centre Travel Group Ltd t/as Aunt Betty v Goel [2021] NSWCATAP 44 at [50]-[60].

273. Generally speaking, damages in contract are analogous to damages in tort in that the award seeks to return the party in the position it would have been in had the breach not occurred. The availability of damages is subject to the “rule” in Hadley v Baxendale, which provides that damages will be available where the damage is such that it may be fairly and reasonably considered as naturally arising in the usual course of things from a breach of the contract in question, or as may be reasonably supposed to have been in the contemplation of the parties at the time they made the contract as being the probable result of its breach.

Consideration of the Applicants’ claim

274. As set out above, I am satisfied that Principle 9 Real Estate Pty Ltd and the Applicants entered into the Managing Agency Agreement.

275. I am satisfied that, in accordance with the principles set out above, the Managing Agency Agreement contained an implied warranty that the services would be provided with due care and skill, and that would be reasonably fit for purpose.

276. For the same reasons as set out above in relation to the Applicants’ claim in respect of the Respondents’ contraventions of the guarantees in sections 60 and 61 of the Australian Consumer Law, I am satisfied that Principle 9 Real Estate Pty Ltd was in breach of its contract with the Applicants in that it failed to provide those services with due care and skill, and to provide services that were reasonably fit for purpose.

277. As to damages, in circumstances where the conduct giving rise to the breach of contract is of the same nature and quality as the claim pursuant to sections 60 and 61 of the Australian Consumer Law, and the negligence claim, I would assess damages for that breach of contract in the same manner as I have in relation to those claims above.

Conclusion as to the Applicants’ claims

278. For the reasons set out above, I am satisfied that the Applicants have established that:

1. the Respondents failed to comply with the guarantees in ss 60 and 61 of the Australian Consumer Law in providing property management services in that they:

1. Failed to obtain the Applicants’ instructions to execute the Residential Tenancy Agreement on the Applicants’ behalf for minimum fixed term of 5 years;

2. Failed to obtain the Applicants’ instructions to execute the Residential Tenancy Agreement on the Applicants’ behalf that permitted the Tenants to keep dogs at the premises;

3. Failed to provide the Applicants with accurate advice as to the circumstances in which rent could be increased under the Residential Tenancy Agreement;

4. Provided the Applicant with incorrect advice as to the rent payable for the Property from time to time; and

5. Failed to obtain the Applicants’ instructions before negotiating a rent increase to $1,025 per week.

2. in relation to the Applicants’ failure to comply with the guarantees in ss 60 and 61 of the Australian Consumer Law, the Applicants are entitled to recover:

1. damages in respect of the Applicants’ loss of opportunity to secure rent increases from time to time in the amount of $5,682.50; and

2. compensation in respect of the difference in value of the services provided by the Respondents and the amount paid for those services in the amount of $1,414.90.

3. the Respondents were negligent in the provision of services to the Applicants, and as a result of that negligence, the applicants suffered loss and damage in the same amounts as assessed in respect of the claim advanced pursuant to ss 60 and 61 of the Australian Consumer Law;

4. Principle 9 Real Estate Pty Ltd breached the Managing Agency Agreement in that the services provided pursuant to it were not provided with due care and skill, and were not reasonably fit for purpose, and that as a result of that breach the Applicants suffered loss and damage in the same amounts as assessed in respect of the claim advanced pursuant to ss 60 and 61 of the Australian Consumer Law.

279. The balance of the Applicants’ claims will be dismissed.

Costs

280. The Applicants have foreshadowed an application for costs. The ordinary position is that parties to proceedings are to pay their own costs although the Tribunal may award costs if it is satisfied that there are “special circumstances warranting an award of costs”: s 60, Civil and Administrative Tribunal Act 2013 (NSW). During the hearing on 17 February 2025, the Applicants’ counsel sought to reserve the issue until after the delivery of these reasons. Accordingly, I will make the following directions in relation to the question of costs:

1. Within 14 days of the date of these reasons, the Applicants are to provide the Tribunal and the Respondents with any submissions and documents the Applicants intend to rely on in relation to the question of costs, including on the question as to whether costs should be fixed or assessed;

2. Within 28 days of the date of these reasons, the Respondents are to provide the Tribunal and the Applicants with any submissions and documents that the Respondents intend to rely on in response to the application for costs;

3. Within 35 days of the date of these reasons, the Applicants are to provide the Tribunal and the Respondents with any submissions and documents the Applicants intend to rely on in reply (only) to any submissions or documents provided by the Respondents;

4. the parties are to address in their written submissions whether they consider that a hearing in relation to the question of costs can be dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act.

Conclusion

281. For those reasons, I will make the following orders:

1. By consent, Gregory Murray is joined as an applicant.

2. The Respondents are to pay the Applicants the sum of $7,097.40 immediately.

3. In relation to the question of costs:

1. Within 14 days of the date of these reasons, the Applicants are to provide the Tribunal and the Respondents with any submissions and documents the Applicants intend to rely on in relation to the question of costs, including on the question as to whether costs should be fixed or assessed;

2. Within 28 days of the date of these reasons, the Respondents are to provide the Tribunal and the Applicants with any submissions and documents that the Respondents intend to rely on in response to the application for costs;

3. Within 35 days of the date of these reasons, the Applicants are to provide the Tribunal and the Respondents with any submissions and documents the Applicants intend to rely on in reply (only) to any submissions or documents provided by the Respondents;

4. the parties are to address in their written submissions whether they consider that a hearing in relation to the question of costs can be dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act.

*********

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

Decision last updated: 13 October 2025