Your Local Plumbing Group Pty Ltd ACN 605 979 235 Trading as My Canberra Plumber v Atkinson (Civil Dispute) - [2023] ACAT 5

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

YOUR LOCAL PLUMBING GROUP PTY LTD ACN 605 979 235 TRADING AS MY CANBERRA PLUMBER v ATKINSON (Civil Dispute) [2023] ACAT 5

XD 781/2021

Catchwords: CIVIL DISPUTE – misleading and deceptive conduct – capacity of respondent – unconscionable conduct – due care and skill – work recommended by applicant - evidence does not support work completed – CCTV

Legislation cited: Competition and Consumer Act 2010 Sch 2, ss 18, 20, 21, 60

Cases cited:Consumer Commission v Lux Distributors Pty Ltd (2013) ATPR 42-447
Jones v Dunkel [1959] HCA 8

Tribunal:Senior Member S Lancken

Date of Orders:  18 January 2023
Date of Reasons for Decision:      18 January 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 781/2021
BETWEEN:
YOUR LOCAL PLUMBING GROUP PTY LTD ACN 605 979 235 TRADING AS MY CANBERRA PLUMBER
Applicant

AND:
FRANK ATKINSON

Respondent

TRIBUNAL:Senior Member S Lancken

DATE: 18 January 2023

ORDER

The Tribunal orders that:

The applicant is to pay the respondent the sum of $14,074.28, comprising of:
(a)Damages of $12,957.75.
(b)Interest of $946.53.
(c)The filing fee of $170 paid by the respondent on his cross claim.

………………………………..

Senior Member S Lancken

REASONS FOR DECISION

In these proceedings, the applicant seeks payment of amounts outstanding in relation to two invoices that it rendered to the respondent for plumbing services:
(a)Invoice no 17988. Invoice amount $7,700 less paid of $3,907.75. Outstanding $3,850.
(b)Invoice no 18013. Invoice amount $26,244.90 less paid $10,150. Outstanding $14,744.90.
The respondent denies liability for the amounts claimed, and in a cross claim, seeks to recover amounts paid to the applicant of $14,057.75. The amounts paid were part payments of the two invoices.
Both parties claim interest and seek to recover the filing fee paid to the tribunal.
The applicant is a company that provides plumbing services.
The respondent was 91 years old at the time of the events that are the subject of the claim, living alone and the owner of a property in Watson in the ACT (the property).

Relevant events

The respondent contacted the applicant sometime on or before 3 May 2021. He contacted the applicant due to concern with blocked drains in his bathroom. He mentioned that he wanted the applicant to address the blockages using “an electric eel”.
No witness gave evidence of any need to carry out the plumbing work urgently such as the presence of effluent inside or outside the house or a blockage that prevented the use of toilets, showers, or sinks within the house.
No witness gave evidence of the extent of any blockages to plumbing in the bathroom.
No witness gave evidence of blockages to plumbing in the kitchen.
An employee or contractor of the applicant attended the property on 3 May 2021. That person was not called to give evidence.
A quotation was prepared on behalf of the applicant on 3 May 2021. That quotation was for job no 37812 (the first quotation). The quotation said that Mr Atkinson contacted the applicant regarding “blocked drains from tree roots and bathroom drains all blocked” (emphasis added).
The first quotation was for the use of high-pressure water jetting machine for up to one hour to attempt to clear the blockage and the use of a CCTV camera to locate any blockage that could not be cleared by the high-pressure jetting. The cost of this work was quoted as $300.
The respondent indicated that he accepted the first quotation on 3 May 2021.
Someone on behalf of the applicant attended the property on 4 May 2021 to carry out the work identified in the first quotation. That person was not called to give evidence.
At 10:11am on 4 May 2021, a further quotation was provided to the respondent (job no 37915) (the second quotation). The person who provided this quotation was not called to give evidence.
The second quotation was for work to remove an Overflow Relief Gully (ORG) and to excavate and remove four metres of existing terracotta sewer pipe and replace it with PVC pipes.
The second quotation says, relevantly:
Arrived on site to conduct jetting and cctv of the clients drain, upon joining we were getting stuck at certain location so we decided to put the camera down the drain and found there to be severe true penetration and cracks throughout the clients terracotta drain.
[It] is in my professional recommendation to replace the client ORG and dig for metres further down the sewer line and replace with PVC and then do further investigations to see if the sewer needs any further works (errors in original)
The second quotation was for $7,000 plus GST and is the subject of invoice no. 17988.
There were two ORG installations at the property, one off the kitchen and one off the bathroom.
Mr Imran Cetinkaya, a contractor engaged by the applicant, attended the premises on 5 May 2021. My Cetinkaya provided a witness statement dated 5 December 2022.
Mr Cetinkaya commenced the work identified in the second quotation on 5 May 2021. He did not carry out any further investigations before commencing work to replace the ORG and excavate the pipes. He relied on the second quotation to define the work he carried out.
In his statement, Mr Cetinkaya says that on 5 May 2021 he carried out excavation as specified in quotation 2 and said that after “installing a new inspection riser to the ground, I conducted a further CCTV inspection to ensure there are no further blockage down the line.”
He goes on, in paragraph 8 of his statement, to say, “Due to the age of the pipework, I found there to be a lot of tree roots that have made their way in and penetrated the drain, completely blocking up the pipeline.” (emphasis added)
The ORG that Mr Cetinkaya replaced was the one off the kitchen, not the one off the bathroom.
Mr Cetinkaya conveyed his findings to the respondent.
Following the advice of Mr Cetinkaya, a third quotation was given to the respondent being for job no 37915 (the third quotation). The third quotation is the subject of invoice number 18013 and was for the work needed to replace a further 14 metres of terracotta pipes, involving further extensive excavation.
There is a dispute about the capacity of the respondent to understand what he was doing when he signed documents or spoke to the staff of the applicant when accepting quotations. The applicant says that the respondent accepted all three quotations.
The applicant alleges that on 4 and 5 May 2021, the respondent agreed to quotations for plumbing work at a total cost of more than $33,000.
Mr Cetinkaya commenced the work identified by him in the third quotation once the quotation was accepted by the respondent on 5 May 2021.
The respondent made part payment of the second and third invoices, at the time that it is alleged he accepted them.
On 6 May 2021, the respondent’s son, Ian Atkinson, came to the premises and on this day and the next few days had conversations with the personnel who were carrying out the work.
On about 10 May 2021, the work of backfilling the excavation undertaken to replace the terracotta pipes was largely completed and the personnel were asked by Ian Atkinson not to return on site. They did not return to site after this date.
All the work carried out by the applicant and covered by the second and third quotations was completed by 10 May 2021, that is in within seven days of the quotations, presumably five working days.
A backhoe was used to excavate the trenches of about 14 metres needed to access the terracotta sewer pipes that were replaced with PVC pipes.
After 10 May 2021, a complaint was made by the respondent’s son to ACT Fair Trading.
On 10 August 2021, the applicant filed the Civil Dispute Application seeking payment of the balance of its invoices.
Except as stated, the facts set forth above are not in dispute.
The respondent disputes the claim and by a cross claim seeks repayment of the monies paid to the applicant.

Capacity of the Respondent

The respondent argues that he did not have the mental capacity to contract with the applicant. The argument was propounded by his sons who are his attorneys and appeared on his behalf at the hearing.
The sons say in statements that it was unlike their father to commit to significant expenditure so readily and I accept that evidence. It was not challenged. Behaviour unlike normal behaviour, however, does not prove a lack of capacity.
There is no expert evidence from a doctor or other medical professional about the capacity of the respondent in May 2021 when the events occurred.
The sons give evidence that since the time of the events in question, the respondent has been admitted to aged care, but again there is no expert medical evidence about his capacity or that the reason he is in aged care has anything to do with a lack of capacity.
The applicant, when seeking acceptance of the quotations, identified that the respondent was elderly and for that reason, in addition to getting a written acceptance of the quotations, arranged for a staff member of the applicant to speak to him on the telephone. The audio recording of those conversations was played in evidence. The call was initiated by the staff of the applicant.
The audio recordings give the impression of the applicant being an old man, and at the least somewhat vague when answering questions that were asked by the staff of the applicant. The recordings also indicate that the personnel representing the applicant on site were present and listening to the calls.
Listening to the audio recordings does not assist in making any determination about the capacity of the respondent to make informed decisions about the contracts that he was being asked to enter with the applicant.
I make no finding about the capacity of the respondent at the time of the relevant events when the applicant submits the quotations were accepted by the respondent. I cannot determine one way or the other whether the respondent did or did not know what he was doing.
As the respondent asserted a lack of capacity, the burden of proving that assertion falls on him, and he has not satisfied that burden.
In any events, given the finding in relation to breaches of the Australian Consumer Law, it is not necessary to make any findings about the capacity of the respondent to contract with the applicant.

Misleading and deceptive conduct

The substance of the applicant’s argument is that the representations of the applicant that are in quotations 2 and 3 were misleading as to:
(a)the necessity for the work; and/or
(b)the reasonable costs of the work.
Section 18 of the Competition and Consumer Act 2010 (the Australian Consumer Law or ACL) is as follows:
18 Misleading or deceptive conduct
(1)A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
The provision of plumbing services by the applicant is trade or commerce.
The provision of the quotations was conduct that occurred in trade or commerce.
The contentious issue in this case is whether the quotations or the advice and information contained in those quotations was misleading or deceptive or likely to mislead or deceive.
The applicant asserts that the personnel who spoke to the respondent offered to the respondent the same or similar information as the information that is contained in the quotations.
The personnel who spoke to the respondent on 3 and 4 May 2021 were not called to give evidence, and no explanation was given for their failure to give evidence except that they were not “employees of the applicant”. The inference to be drawn is that their evidence on this and other factual issues that are in contest would not have assisted the applicant.[1] Those personnel were not identified by the applicant.
[1] Jones v Dunkel [1959] HCA 8
The second quotation contains the following words:
(a) is in my professional recommendation to replace the clients ORG and dig for metres further down the sewer line and replace with PVC and then do further investigations to see if the sewer needs any further works. (sic)
The third quotation contains the following words:
(a) Unfortunately due to the age of the pipework, we found here to be a lot of tree roots that have made their way in and penetrating the drain, completely blocking the pipeline
I showed the client the further issues we have discovered (sic)
Both statements are advice to the respondent.
Both statements were made to the respondent, in the quotations and orally by personnel of the applicant to the respondent.
Following the statements being made to him, the respondent is said to have accepted the quotations and engaged the applicant to do the work that is “recommended”.
The applicant argues that the statements were misleading and/or deceptive in that the work was not necessary.
The applicant relies on the evidence of Mr Jason Tait. Mr Tait made a statement dated 21 December 2021 and was called to give oral evidence.
Mr Tait did not attend the site. Mr Tait considered the evidence before the Tribunal such as the documents (in particular, the quotations), and the evidence of Mr Cetinkaya including the images attached to his statement.
In relation to each of the quotations, Mr Tait says, “There is nil evidence to support the work was necessary.”
The essence of the evidence of Mr Tait is:
(a)that the respondent’s complaint related to blocked bathroom drains. Those drains are inside the structure of the house on the property and are approximately four metres above the ORG which is located outside the bathroom and at ground level;
(b)that if the blockage that the respondent was concerned about was in the bathroom, the blockage would be in the pipes within the house structure or attached to the walls of the house and isolated by the ORG from backflow from the sewer pipes that are underground in the yard and that the applicant recommended be replaced;
(c)if the terracotta pipes located underground in the yard of the property were blocked, the blockage would cause discharge from either of the two ORGs and not flow back into the bathroom;
(d)there were two ORGs, one off the bathroom plumbing and one off the kitchen plumbing;
(e)the work that was done by the applicant started at the kitchen ORG;
(f)Mr Tait assumed, and it is the case on the evidence, that the respondent expressed no concern about blockages to the kitchen plumbing; and
(g)that nothing quoted for by the applicant addressed the blocked bathroom drains with the exception of high-pressure water jetting.
There was no evidence tendered by either party of discharge from the ORG off the bathroom which, according to the evidence of Mr Tait, is one of the functions of that part of the plumbing system if the pipes are blocked.
In summary, Mr Tait says that nothing was done to investigate the plumbing inside the bathroom, that is between the bathroom toilet, basins, and drains, etc. and the ORG to determine if there was any defect in the plumbing that is inside the house and above the ORG.
Mr Tait gave evidence that, in his opinion, the first investigation that a plumber should have undertaken was of the plumbing in the bathroom.
He says, “Thus Job 37812 [the first quotation] addressing blocked bathroom drains was not undertaken.”
The words of the first quotation “Blocked drains from tree roots” are relevant to this issue.
The respondent did not diagnose the cause of any blockage as being “from tree roots”. He was not qualified to make such a diagnosis, could not see what was happening underground, and diagnosis was precisely what he asked the applicant to do.
There was no evidence available to the applicant at the time of the first quotation that the drains were blocked by tree roots. At that time no diagnostic tests had been performed. The person who first attended the property on behalf of the applicant could not have diagnosed damage from tree roots. There had been no investigation, that was the purpose of the first quotation.
All of the work recommended and carried out by the applicant was recommended based on an assumption that tree root damage to the terracotta pipes was the cause of the blocked drains in the bathroom.
I accept the evidence of Mr Tait that until the plumbing inside the house and above the ORG had been inspected or investigated, any assumption of tree root damage was premature.
The second and third quotations were based on the same assumption with no investigation of any other less drastic cause.
The second quotation is as a result of the representative of the applicant (who was not called to give evidence) stating that he found there to be “severe true (sic) penetration and cracks throughout the clients terracotta drain”.
It was asserted by the applicant that the conclusion of penetration and cracks in the terracotta drain was based on CCTV investigations on 4 May 2021.
The CCTV footage of the investigation that took place on 4 May 2021 was not tendered in evidence by the applicant. Nor was the person who carried out that investigation called to give evidence by the applicant.
It is significant that the work recommended would not, according to Mr Tait, have addressed blockages in the bathroom. The work started at the kitchen ORG and was in accordance with the recommendation in the second quotation.
There is no evidence that overflow at either of the ORGs had occurred that might be indicative of blocked drains.
The work done in response to the third quotation was based on the finding of Mr Cetinkaya made on 5 May 2021 that, “we found there to be a lot of tree roots that have made their way in and penetrating the drain, completely blocking up the pipeline” (emphasis added).
Mr Cetinkaya did not give any evidence of conducting high-pressure water jetting of the pipes on 5 May 2021 before he formed the opinion expressed in the previous paragraph.
Mr Cetinkaya attached to his statement four still camera images from the CCTV footage he took just before 2pm on 5 May 2021 to support his finding. The entirety of the CCTV footage was not tendered.
Mr Tait says of the four images, “The images show, at the time, of the CCTV inspection the pipes were not blocked as visibility is good and the drain is not holding water or effluent.” (Emphasis in original statement). He goes on to say, “I can find nil image evidence supporting the need to excavate and replace 14 metres of sewer pipe.”
Mr Tait says in his statement that “Pipes in these conditions [as shown in the images] can usually be cleaned with a high pressure water jet or drain machine to maintain operation. I am very confident the plant roots pictured could have been cleaned from the drain.”
I accept the evidence of Mr Tait.
In summary,
(a)The respondent sought advice and quotation/s from the respondent to rectify what were described as blockages to the plumbing in the bathroom.
(b)The respondent proceeded on the assumption that blockages were from “tree roots” prior to carrying out any investigations.
(c)The respondent advised and quoted for expensive and intrusive work without investigating possible less intrusive investigations and work.
(d)Mr Cetinkaya recommended excavation of 14 metres of pipe without first trying to clear the pipes and remove any root intrusion using a high-pressure water jet.
(e)The work that the applicant recommended commenced at the kitchen ORG when the problem identified by the respondent was in the bathroom.
(f)The advice that the remedy was to excavate a total of 18 metres of pipe and replace with PVC was misleading and deceptive.
(g)As a result of that advice, the respondent is alleged to have approved and contracted for the applicant to carry out plumbing work at a cost of more than $33,000.
The quotations or the advice and information in those quotations that was provided to the respondent was misleading or deceptive or likely to mislead or deceive.

Unconscionable conduct

Sections 20 and 21 of the ACL are as follows:
20 Unconscionable conduct within the meaning of the unwritten law
(1)     A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.
(2)     This section does not apply to conduct that is prohibited by section 21.
21 Unconscionable conduct in connection with goods or services
(1)     A person must not, in trade or commerce, in connection with:
(a)the supply or possible supply of goods or services to a person; or
(b)the acquisition or possible acquisition of goods or services from a person;
engage in conduct that is, in all the circumstances, unconscionable.
(2)     This section does not apply to conduct that is engaged in only because the person engaging in the conduct:
(a)institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or
(b)refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition.
(3)     For the purpose of determining whether a person has contravened subsection (1):
(a)the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
(b)the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.
(4)     It is the intention of the Parliament that:
(a)this section is not limited by the unwritten law relating to unconscionable conduct; and
(b)this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and
(c)in considering whether conduct to which a contract relates is unconscionable, a court's consideration of the contract may include consideration of:
(i)the terms of the contract; and
(ii)the manner in which and the extent to which the contract is carried out;
and is not limited to consideration of the circumstances relating to formation of the contract.
The Courts have offered guidance as to how the provisions of Sections 20 and 21 are interpreted and said that behaviour should be judged “by reference to a normative standard of conscience”.[2]
[2] See for instance Consumer Commission v Lux Distributors Pty Ltd (2013) ATPR 42-447
The facts and circumstances set out above in relation to the allegations of misleading and deceptive conduct are relevant to the determination of whether the conduct of the applicant was unconscionable.
Also, relevant to whether the applicant’s conduct was unconscionable are the following undisputed facts:
(a)The respondent was 91 years old.
(b)The respondent was not a plumber nor was he capable of diagnosing the cause of the problem he identified in his bathroom.
(c)The respondent was not offered any real opportunity to negotiate the terms of the contract.
(d)The applicant’s own hesitance about the ability or capacity of the respondent to understand the commitment he was making in accepting the quotation.
(e)The cost of the work, relative to any possible alternative remedy.
(f)The failure of the applicant to recommend a less intrusive or expensive alternative remedy for instance those remedies identified by Mr Tait.
(g)The timing and circumstances of the conduct, for instance, the commitment sought in relation to the second quotation within a very short time of the representatives of the applicant being at the premises of the respondent and the very rapid escalation of the cost of work quoted in the third quotation.
(h)The insistence of immediate part payment for the work.
(i)There was no objective urgency for the work to be performed.
(j)The lack of options offered to the respondent to investigate other causes of the problem that he had identified.
(k)The pressure brought to bear on the respondent in the phone calls to verify his acceptance of the quotations by the presence of the representatives of the applicant while the phone call took place.
(l)The misleading nature of the “advice” contained in the quotations as to the cause of the problem as referred to earlier in these reasons.
(m)The knowledge of the applicant that the respondent did not have another opinion as to what was needed to address any plumbing needs in the bathroom.
(n)The applicant did not offer the respondent an opportunity to obtain a second opinion.
Mr Tait offers an opinion that the work quoted by the applicant in quotations 3 and 4 “should have cost less than $9,800”. Of course, different providers will offer different quotes to do the same work, some will cost more than others. However, the work quoted for took contractors less than five business days to complete. Common sense suggests that it was not overly complex plumbing work, and the evidence is that it occurred in benign ground conditions. That is also the evidence of Mr Tait.
The excavation was straightforward on flat, easily accessible land. Even considering the costs of a backhoe for perhaps four days and materials, a cost of more than $33,000 to do the work seems excessive to the point of being exploitative based on a maximum of five days of work.
When considering “normative standards of conscience”, in relation to conduct, all of the surrounding circumstances must be considered.
Given the relative knowledge and bargaining power of the parties to the transaction, the telephone calls to the respondent to ask if he understood what he was committing to or if he wanted to speak to another person such as a relative did not excuse the other conduct of the applicant, rather it appears an ineffective attempt by the applicant to place on the respondent a responsibility that as a lay person (when it comes to plumbing) he was ill equipped to accept.
While it is not determinant of unconscionable behaviour, the recording of the conversations between staff of the applicant and the respondent is a compelling piece of evidence that the applicant knew that the respondent was relying on the applicant’s plumbing knowledge and experience when he accepted the quotations.
Having identified the significance of the transaction financially to the respondent, and the commitment he was being asked to make very quickly, in good conscience the applicant could and should have given Mr Atkinson time and opportunity not just to speak to relatives, but to reflect on his commitment and if he wished to obtain a second opinion. The respondent did not.
Given the financial commitment Mr Atkinson was being asked to make, the applicant should have ensured that he was offered other lower cost alternatives if they were available. Mr Tait gave evidence that there were such alternatives, and they were not offered to the respondent.
Given the financial commitment, Mr Atkinson was being asked to make the applicant should have ensured that it properly investigated the cause of his concerns, not assume that tree root damage to the terracotta pipes was the cause. They did not properly investigate.
Given all of the facts identified in these reasons, the conduct of the applicant in obtaining the approval of the respondent to do the plumbing work was unconscionable.

Due Care and Skill

The respondent also argued that in giving the quotation the applicant did not exercise due care and skill as required by section 60 of the ACL.
Section 60 reads as follows:
60 Guarantee as to due care and skill
If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
This section of the ACL relates to the “supply” of goods and services (emphasis added).
On the evidence, I find that the supply of the good and services, that is the plumbing work, was undertaken with due care and skill. The applicant obtained the necessary approvals and no one including Mr Tait gives evidence that the work was faulty or deficient. Mr Tait says only that it was unnecessary.
There is no breach of Section 60 of the ACL by the applicant.

The evidence of Mr Tait

Ms Quinlivan, on behalf of the applicant, challenged the evidence of Mr Tait who provided a statement dated 21 December 2022 and gave oral evidence at the hearing. She cross examined Mr Tait.
Mr Tait is a plumber and a part “owner” of a company known as Level Plumbing Canberra.
Mr Tait admitted that his company is a competitor of the applicant. He also commented on the way in which the applicant conducted its business. He admitted that he did not “like” the way that the applicant conducted its business.
The fact that Mr Tait was a competitor and has formed a view about the business conduct of the applicant does not necessarily taint his evidence about what is good practice or about what he observed from the information or documents of the applicant.
I accept Mr Tait has the expertise to offer the opinions that are contained in his statement. He is a plumber with many years of experience. He works in a plumbing business in Canberra that employs many people and has been a principal of that firm for many years.
Mr Tait gave his evidence in a calm and straightforward manner. He admitted an interest in ensuring that plumbing services were offered in an honest and professional manner as he said that it was best for the trade overall if plumbers are to be trusted trade people.
In offering his evidence, Mr Tait relied only on the evidence tendered by the applicant in the proceedings including any images that were tendered from the CCTV inspections that the applicant or its contractors conducted. He did not visit the site. If he had visited the site, he would have had no additional information to assist him form an opinion about the necessity of the work carried out by the applicant and its contractors.
Mr Tait explained clearly why he did not think that the excavation of more the 18 metres of pipework was necessary. His evidence in relation to that opinion was not challenged by any competing expert or other evidence of the applicant as the applicant called no such evidence. It was not challenged in cross examination.
Mr Cetinkaya who was the only witness relied on by the applicant did not carry out the initial investigation. He was engaged to carry out work identified by the applicant in a work order.
As to the third quotation, Mr Tait relied on the four images tendered by the applicant. Mr Cetinkaya said that the CCTV images demonstrated “a lot of tree roots that have made their way in and penetrated the drain, completely blocking up the pipeline”. He refers to the four images attached to his statement.
Mr Tait offered his own opinion about the images, especially in relation to the opinion of Mr Cetinkaya that there was a complete blockage of the pipeline.
Mr Tait said that, if there was a complete blockage, the pipes would be holding effluent and water. The untrained eye can see that there is no effluent or water in the images of the pipes attached to the statement of Mr Cetinkaya. That is the opinion of the trained eyes of Mr Tait.
Simple logic suggests that if there was a “compete blockage of the pipeline” that there would be a backup of effluent or water in the pipes or at the ORG that was replaced or the ORG near the bathroom. There is no evidence given by Mr Cetinkaya or anyone on behalf of the applicant of such a backup of water or effluent.
Ms Quinlivan did not challenge the conclusions of Mr Tait. She did not challenge the assumptions upon which those conclusions were based. She did not put to him any competing hypothesis except that he was not on site when the decision was made to carry out the excavation and Mr Cetinkaya had a differing opinion.
I accept Mr Tait’s opinion that there is no evidence that the excavation work carried out by the applicant was necessary and the other opinions he expresses in his statement. The undisputed evidence tendered at the hearing supports those opinions.

Remedy

The remedy of a consumer who proves misleading or deceptive conduct or unconscionable conduct as defined in the provisions of sections 18, 20 and 21 of the ACL is damages.
In this case, the damage suffered by the respondent results from any obligations that he has by reasons of the contracts he is alleged to have entered with the applicant to do plumbing work, namely the expense of the two invoices.
Had the applicant not engaged in misleading or deceptive conduct or unconscionable conduct the respondent would not have entered into the contracts as the applicant alleges.
The total quoted cost of the work “recommended” by the applicant and invoiced was $33,944.90 The respondent has paid $14,057.75 to the applicant.
Had the applicant not engaged in misleading or deceptive conduct or unconscionable conduct the respondent would not have paid he applicant $14,057.75.
Mr Tait says in paragraph 5 of his statement that the work that was necessary to address any blockages in the bathroom plumbing was high pressure jetting or drain machine work at a cost of $500 per service. I assume that GST is in addition to this estimate.
The total costs that the respondent would have incurred including GST for two services of high pressure jetting as proposed by Mr Tait would be $1,100 inclusive of GST.
The respondent has therefore suffered a loss of $12,957.75.
The applicant’s claim is dismissed.
The respondents cross claim is successful.

Conclusion

The applicant is to pay the respondent the sum of $12,957.75 plus interest from 5 May 2021 on that sum to the date of hearing being $946.53
The applicant is to pay the filing fee of $170 paid by the respondent on its cross claim.
The applicant is to pay the respondent a total of $14,074.28.

………………………………..

Senior Member S Lancken

Date(s) of hearing:	9 January 2023
Counsel for the Applicant:	Ms Antonia Quinlivan
Respondent:	Represented by Ian Atkinson and David Bouchard