Actol Pty Ltd v Rise Products; Rise Products v Benth Holdings Pty Ltd t/as Gledswood Projects [2022] NSWCATCD 150

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Actol Pty Ltd v Rise Products; Rise Products v Benth Holdings Pty Ltd t/as Gledswood Projects [2022] NSWCATCD 150 Hearing dates: 12-13 October; 4, 29 November 2021; Final written submissions received 16 May 2022; Supplementary submissions received 14 and 22 November 2022 Date of orders: 02 December 2022 Decision date: 02 December 2022 Jurisdiction: Consumer and Commercial Division Before: D Robertson, Senior Member Decision: In proceedings HB 20/35833: (1) The first-named respondent, Rise Products Pty Ltd, is to pay the applicant, Actol Pty Ltd, the sum of $50,650.60 within 28 days of the date of publication of this decision. (2) The proceedings are otherwise dismissed. In proceedings HB 21/30136: (3) The proceedings are dismissed. In both proceedings: (4) Within 14 days of the date of publication of this decision, any party may file submissions, not exceeding five pages, and evidence in support, seeking an order in respect of the costs of the proceedings. (5) If any party files submissions in accordance with order 4, the other parties may file submissions in response, not exceeding five pages, and any evidence relied upon, within a further 14 days. (6) Submissions strictly in reply to submissions filed in accordance with order 5, not exceeding three pages, may be filed within a further 14 days. (7) Any submissions filed in accordance with orders 4 and 5 must address the question whether the issue of costs can be determined on the basis of written submissions and without a further hearing. (8) If no submissions are filed in accordance with order 4, there will be no order in relation to the costs of the proceedings. Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW), s 18B – Statutory warranties – Respondent undertaking supervision of residential building work but not pursuant to contract – Not subject to implied warranties CONTRACTS – Formation of contract – Contract not wholly in writing – Consideration of surrounding circumstances – Whether contract required supply only or supply and installation CONSUMER LAW – Australian Consumer Law (NSW), s 3 – "consumer" – Whether goods acquired as a consumer – Whether pre-fabricated formwork panels for residential building are "goods … of a kind ordinarily acquired for personal, domestic or household use or consumption" – Whether products acquired for the purpose of being incorporated into houses being constructed for sale at a profit are "acquired … for the purpose of using them up or transforming them … in the course of a process of production or manufacture" CONSUMER LAW – Misleading and deceptive conduct – Representations as to future matters – Reasonable grounds RESTITUTION – Ineffective transactions – Restitution of money paid – Where purchase price was paid in full but only half of the goods the subject of the contract were delivered – Purchaser asserted goods were defective and balance of goods not delivered – Contract rescinded by purchaser or abandoned by parties – Purchaser entitled to restitution of the price paid for the goods not delivered CONSUMER LAW – Fair Trading Act 1987 (NSW), s 79S – Jurisdiction of the Civil and Administrative Tribunal with respect to consumer claims – Whether the increase by regulation of the Tribunal's jurisdiction in respect of consumer claims applies in proceedings commenced before the increase became effective – Increased jurisdiction was applicable to proceedings already on foot at the time of the amendment STATUTORY INTERPRETATION – Principle of legality – Retrospectivity – Interpretation Act 1987 (NSW), s 30 – Increase of jurisdiction of Tribunal with respect to consumer claims in existing proceedings does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the pre-existing legislation WORDS AND PHRASES – "consumer", "goods of a kind ordinarily acquired for the purpose of personal, domestic or household use or consumptions", "using [goods] up or transforming them … in the course of a process of production or manufacture" Legislation Cited: Australian Consumer Law (NSW) Acts Interpretation Act 1958 (Vic) Building and Construction Industry Security of Payment Act 1999 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Competition and Consumer Act 2010 (Cth) Corporations Act 2001 (Cth) Design and Building Practitioners Act 2020 (NSW) Fair Trading Act 1987 (NSW) Fair Trading Amendment (Monetary Limit on Orders) Regulation 2022 (NSW) Fair Trading Regulation 2019 (NSW) Home Building Act 1989 (NSW) Interpretation Act 1987 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: 20*20 Pty Ltd v D&G Developments Pty Ltd [2009] WASC 343 Bunnings Group Limited v Laminex Group Limited [2006] FCA 682; 153 FCR 479 Carr v Finance Corporation of Australia Ltd (No 2) [1982] HCA 43; (1982) 150 CLR 139 County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 Gaskell and Bourke v Northshore Homes Pty Ltd and Nazha [2021] NSWCATCD 33 John McDonald Building Services Pty Ltd v Gusa [2022] NSWCATAP 60 Laws v GWS Machinery Pty Ltd [2007] NSWSC 316 Maxwell v Murphy (1957) 96 CLR 261 Pollock v Hicks [2015] NSWCA 122 R v Papanicolaou (No 4) [2021] NSWSC 1698 Robertson v City of Nunawading [1973] VR 819 Theo Holdings Pty Ltd v Hockey; Australian Competition And Consumer Commission v Theo Holdings Pty Ltd [2000] FCA 665; (2000) 99 FCR 232 Wilson v Winnicott [2021] NSWCATAP 211 Woodward v Warwick Green Building Pty Ltd [2021] NSWCATAP 210 Texts Cited: D Pearce, Statutory Interpretation in Australia, Ninth Edition 2019 Category: Principal judgment Parties: HB 20/35833 Actol Pty Ltd (Applicant) Rise Products Pty Ltd (First Respondent) Daniel Pszczonka (Second Respondent) Benth Holdings Pty Ltd t/as Gledswood Projects (Fourth Respondent)