Machayekhy v Bayeh [2024] NSWCATCD 17

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Machayekhy v Bayeh [2024] NSWCATCD 17 Hearing dates: 18 January 2024 Date of orders: 31 January 2024 Decision date: 31 January 2024 Jurisdiction: Consumer and Commercial Division Before: Graham Ellis SC, Senior Member Decision: 1 The first respondent, Sarkis Bayeh, is to pay the first applicant, Adrian Machayekhy, $71,143 immediately. 2 The application is otherwise dismissed. 3 The first respondent is to pay the costs of the second, third and fourth respondents and costs of the applicants, on the ordinary basis, as agreed or assessed. 4 If any party wishes to contend that a different costs order should be made, order 3 ceases to have effect and the following orders apply: (a) Any application for a different costs order is to be filed and served, supported by submissions (not exceeding five pages in length) and evidence within 14 days of the date of these orders. (b) Any submissions (not exceeding five pages in length) and evidence in response are to be file and served with the following 14 days. (c) Any submissions in reply (not exceeding two pages in length) and evidence in reply are to be filed and served within the following 7 days. (d) Any such submissions should indicate whether it is agreed that the Tribunal should dispense with a hearing. Catchwords: BUILDING AND CONSTRUCTION – Contract with non-owner – whether Home Building Act applies CONTRACTS – Identification of parties – whether subsequent conduct can be considered CONSUMER LAW – Misleading and deceptive conduct alleged COSTS – Sanderson order – consideration of the conduct of the parties Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Competition and Consumer Act 2010 (Cth) Competition and Consumer Regulations 2010 (Cth) Fair Trading Act 1987 (NSW) Home Building Act 1989 (NSW) Cases Cited: Ashby v Slipper [2014] FCAFC 15 Bellgrove v Eldridge [1954] HCA 36 Bonita v Shen [2016] NSWCATAP 159 BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40; 180 CLR 266 Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 Brooks v Gannon Constructions Pty Limited [2017] NSWCATCD 12 Browne v Dunn (1893) 6 R 67, HL Bullock v London General Omnibus Co [1907] 1 KB 264 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 Galdona v Peacock [2017] NSWCATAP 64 Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 Gerrard v Slamar [2004] WASC 253 Haines v Bendall [1991] HCA 15 Lackersteen v Jones (No 2) (1988) 93 FLR 442 Latoudis v Casey [1990] HCA 59 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 News v Cotes [2019] NSWCATAP 186 Oshlak v Richmond River Council [1998] HCA 11 Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167 Sanderson v Blyth Theatre Co [1903] 2 KB 53 Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179 Thompson v Chapman [2016] NSWCATAP 6 Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd [2004] HCA 52 Texts Cited: None cited Category: Principal judgment Parties: First Applicant – Adrian Machayekhy Second Applicant – Azadeh Ghorashi