Larsen v Tastec Pty Ltd [2023] NSWCA 39

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Larsen v Tastec Pty Ltd [2023] NSWCA 39 Hearing dates: 22-23 June 2022 Date of orders: 9 March 2023 Decision date: 09 March 2023 Before: Ward P at [1] Mitchelmore JA at [2] Kirk JA at [167] Decision: (1) Appeal allowed. (2) Set aside Order 1 of the orders of the District Court on 17 December 2021, and Order 4 of the orders of the District Court on 4 March 2022. (3) In lieu thereof, order that: (a) The Plaintiffs' claim for damages for breach of contract against the First Defendant is dismissed. (b) The Plaintiffs' claim against the First and Second Defendants for relief under the Australian Consumer Law (ACL) be remitted to the District Court, to a judge other than the primary judge, for determination of: (i) what relief (if any) should be granted pursuant to s 236 and/or s 237 of the ACL, and (ii) the costs of the proceedings. (4) The respondents are to pay the appellants' costs of the appeal. Catchwords: CONSUMER LAW – misleading or deceptive conduct – where appellants engaged first respondent for the supply and assembly of a pre-fabricated house – where representations made by respondents regarding the cladding material to be used under the contract – where appellants, in reliance on the representations, agreed to a contractual variation regarding cladding material – whether cladding representations were misleading or deceptive – whether appellants suffered loss or damage as a result of agreeing to contractual variation in reliance on cladding representations CONTRACTS – breach of contract – breach of express terms – defective performance – whether respondents breached express terms of contract related to supply and installation of doors and windows CONTRACTS – parties – where dispute as to whether appellants entered into contract in their personal capacity or as trustees of their superannuation fund – whether appellants' claim, which was brought in their capacity as trustees of their superannuation fund, could be maintained Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 18, 29, 236, 237 Design and Building Practitioners Act 2020 (NSW) Home Building Act 1989 (NSW) Trade Practices Act 1974 (Cth), s 52, 82, 87 Cases Cited: Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12 Harvard Nominees Pty Ltd v Tiller (2020) 282 FCR 530; [2020] FCAFC 229 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; [2002] HCA 41 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; [1998] HCA 69 Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388; [2004] HCA 3 Robinson v Harman (1848) 1 Exch 850 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 526; [1992] HCA 55 Zong v Wang [2022] NSWCA 80 Category: Principal judgment Parties: Derek Larsen as trustee for the Larsen Superannuation Fund (ABN 95 894 143 943) (First Appellant) Floyd Larsen as trustee for the Larsen Superannuation Fund (ABN 95 894 143 943) (Second Appellant) Tastec Pty Ltd (formerly Wonders Building Company Pty Limited) (ACN 051 516 682) (First Respondent) Stephen Sainsbury (Second Respondent) Representation: Counsel: I Roberts SC / J Wright (Appellants) M Gracie (Respondents)