Lyon v Frenbray Pty Ltd [2022] NSWCATAP 207

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lyon v Frenbray Pty Ltd [2022] NSWCATAP 207 Hearing dates: 2 May 2022 Date of orders: 23 June 2022 Decision date: 23 June 2022 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member G Curtin SC, Senior Member Decision: (1) The appeal is allowed. (2) The orders of the Tribunal of 22 November 2021 are set aside. (3) In lieu thereof, order that the respondent is to pay the appellant $7,041 immediately. Catchwords: CONSUMER LAW – Misleading or deceptive conduct – Representations as to future matters –representations as to future matters deemed to be misleading – causation – damages – difficulties with proof of damage – Tribunal must do the best it can to estimate damages CONSUMER LAW – suppliers of goods and services to disclose prejudicial terms relating to supply – intermediaries to disclose referral fees and commissions – breach – local contravention – compensation CONTRACTS – Construction – Interpretation – background – oral conversation preceding written document – no determination by Tribunal whether contract partly oral and partly in writing – constructive failure to exercise jurisdiction – Tribunal overlooking or misreading written term Legislation Cited: Australian Consumer Law (NSW), ss 4(1), 18 Civil and Administrative Tribunal Act 2013 (NSW), Sch 4 cl 12(1)(c) Fair Trading Act 1987 (NSW), ss 47A, 47B, 61(1), 70(2)(b), 79E Cases Cited: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Cominos v Di Rico [2016] NSWCATAP 5 Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 328; (2021) 396 ALR 545 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640; [2004] HCA 54 House v The King [1936] 55 CLR 499; [1936] HCA 40 Myers v Transpacific Pastoral Co Pty Ltd [1986] ATPR-673 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 The Commonwealth of Australia v Amman Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 Texts Cited: Nil Category: Principal judgment Parties: Michael Lyon (Appellant) Frenbray Pty Ltd (Respondent) Representation: P Lyon (Agent)(Appellant) M Yukich (Agent) (Respondent) File Number(s): 2021/00364321 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 26 November 2021 Before: J Rose, General Member File Number(s): MV 21/37630