Lauer & Ng v Corner [2015] NSWCATCD 114

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lauer & Ng v Corner [2015] NSWCATCD 114 Hearing dates: 19 May 2015 Decision date: 25 August 2015 Jurisdiction: Consumer and Commercial Division Before: G Meadows Senior Member Decision: Ike Corner is to pay the sum of $26,040.00 to the applicants within 28 days of the date of these orders Catchwords: Administrative law-home building-identity of buider-multiple causes of action claimed-Australian Consumer Law and residential building works-misleading and deceptive conduct-restitution-entitlement of unlicensed builder to retain payments in absence of quantum meruit claim-damages Legislation Cited: Civil and Administrative Tribunal Act 2013 Fair Trading Act 1987 Australian Consumer Law Home Building Act 1989 Category: Principal judgment Parties: Simon Lauer and Rachel Ng (applicants) Ike Corner (respondent) Representation: Counsel: Ms Michelle McMahon for the applicants Mr Robert Zickman for the respondent Solicitors:Applicants in person Gerald Aronston for the respondent File Number(s): HB 14/35459 Publication restriction: Nil

REASONS FOR DECISION

Background 1. Ms Rachel Ng is, or was, just prior to the commencement of the hearing in this matter, the National Technical Manager—Motor, Australian Underwriting, for Wesfarmers Insurance. She is married to Mr Simon Lauer, who is, or was, as above, the Sales Development Manager—Primary Freight, for Woolworths Limited. I will refer to them together as "the homeowners", and individually as required. 2. At the beginning of 2014, the homeowners, who had recently purchased a home which Ms Ng described as "freshly renovated for sale when we bought it", decided they wished to make further renovations and so started to look for a builder. The place they chose to look, based on the advice of "a colleague", was a web site called Home Improvement Pages, usually referred to by the parties in this application as "Hi Pages". 3. This site apparently works as follows: for a homeowner, it is necessary to sign up with the service, and then place a request online, together with a brief description of the services being sought. In the case of the homeowners in this case, they provided the following comment: "Home improvement, i.e. knock down wall between living and kitchen area, French door/sliding door lead to balcony, house extension, landscaping, bathroom Reno and etc." 1. Then, those who operate the site arrange to put a number of contractors who have similarly "signed up" in touch with the prospective clients, the object of the site being to enable clients to "get three quotes". From that point on, the contractors and the clients make any further arrangements for the works to be done. 2. In this case, on or about 25 January 2014 (but probably just prior to that date), Ms Ng received a telephone call from "Ike Comer" (the respondent). 3. At this point, it will be helpful for later understanding and consideration of this application, to set out in some detail the course of events, rather than the usual brief summary by way of background. 4. Mr Comer introduced himself as being from a company called Satisall Pty Ltd. This is significant, because the HI Pages site had advised Ms Ng that in response to her request this company had indicated their interest in helping with their request. Ms Ng arranged for Mr Comer to attend her home on 25 January 2014 in order to see what work was required. 5. On 25 January 2014 Mr Comer did attend the premises, and according to Ms Ng's statement, asked what the budget was. Ms Ng said it was not more than $120,000 "including labour and material". On that date Mr Comer gave Ms Ng a business card which, among other information, stated the following: "Ike Comer National Sales & Marketing Manager Satisall Pty Ltd Lic no 186126C All types of building, interior/exterior painting, carpentry, concreting, roofing and guttering work. No job too small" 1. Ms Ng states that on that date also Mr Comer made a number of representations about his experience and the number of building contracts he was involved in. 2. Ms Ng states further that during February 2014 Mr Comer attended the premises several more times, sometimes bringing with him other people who Mr Comer said were contractors. In particular, on the second occasion he attended, Mr Comer brought with him a man he introduced as "Charlie", who Mr Comer said was a Korean builder, or rather, perhaps, a man of Korean extraction who was a builder. Mr Comer also introduced an architect, a consulting engineer, window suppliers and a landscaper. 3. Ms Ng states that, in effect, she was impressed by Mr Comer and his "can do" attitude, his willingness to provide help at all hours including weekends and his stated willingness to organise and supervise everything. 4. On 5 March 2014 Ms Ng sent to Mr Comer some documents including photographs of various interiors (apparently downloaded from the internet) and a copy of the floor plan of the premises annotated with comments as to the works the homeowners wanted done. The following day, according to Ms Ng, Mr Comer telephoned her and advised the works requested would cost a total of $155,000: $58,000 for the downstairs and $96,500 for the upstairs. Ms Ng accepted that quotation. 5. The day after that, Mr Comer and Charlie attended the premises and produced two contracts, each in the sum of $19,500. The contracts were under the letterhead of "S & J Constructions". Ms Ng inquired about this, stating that she thought Mr Comer's company was Satisall Pty Ltd. She says Mr Comer stated that he also works for S & J Constructions and provided another card. That card provided, inter alia, the following information: "Ike Comer National Sales & Marketing Manager S&J Construction All types of building, interior/exterior painting, carpentry, concreting, roofing and guttering work. No job too small Lic D S Kim 217469C" 1. The two contracts were signed and then Ms Ng asked about insurance. She was assured by Mr Comer, she says, that "we have insurance cover for guaranteed works up to 7 years as long as we have these contracts, …" Insurance was not discussed again. 2. Mr Comer provided yet another business card to Ms Ng, this time for a sock company and inquired whether Mr Lauer might be able to help Mr Comer sell his sock products to Woolworths. This card included the following information: "Ike Comer National Sales & Marketing Manager (Australia & New Zealand) Inter Market Knit (Pvt.) Ltd. … Lahore, 54770 Pakistan 1. Works commenced on 10 March 2014. The homeowners paid various sums to Mr Comer for the works and materials, sometimes in cash, sometimes in the form of cash cheques. It appears, according to Ms Ng, that on no occasion was a cheque provided for a sum of $10,000.00 or more. If a sum greater than $10,000.00 was to be given to Mr Comer, the cheques would be split so that all cheques were less than $10,000.00. 2. Although there were some problems in relation to interruptions and delays to the work, on or about 28 March 2014 the homeowners had further discussions with Mr Comer in relation to payments for the kitchen and for windows ($12,000.00 in each case), and a further progress payment of $10,000.00. The homeowners agreed to make these payments and provided cash cheques, three in the amount of $9,000.00 and one in the amount of $7,000.00, a total of $34,000.00 as requested. The homeowners also signed a third contract, again for $19,500.00 and in the same format as the first two, at this time. 3. After this time, problems with the works continued but it appears that from about 16 April 2014 no further work was done. The parties made some attempts to "reconstruct the relationship", as Ms Ng puts it, but to no avail. A complaint was made to Fair Trading. The matter was still not resolved, and this application was commenced on 11 July 2014.