RESIDENTIAL TENANCIES- Landlord’s obligation to repair- Tenant’s claim for compensation due to Landlords’ failure to repair- Tenant’s claim rent excessive due to reduction or withdrawal of goods, services or facilities.
LAND LAW – Strata title – Common property - Maintenance and repair of common property – Compensation for breach of owners corporation’s obligation to maintain and repair common property – Time limit in s 106(6) of the Strata Schemes Management Act 2015 may not be extended by the Tribunal pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 LAND LAW – Strata title – Common property – Maintenance and repair of common property – Compensation may be awarded for damage to floating timber floors installed without the approval of the owners corporation – No reason to conclude floors would have been required to be removed if not damaged – No reason to conclude approval would not have been given, or that application for approval could have been reasonably refused LAND LAW – Strata title – Owners corporation — Contributions by owners – Tribunal has no jurisdiction to make an order declaring that a lot owner does not owe money to the owners corporation
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – defective building work – implied warranties – contract to perform residential building work – successor in title – claim for breach of implied warranties against a person who did not physically perform the work – major defects – work order or money order.
BUILDING AND CONSTRUCTION – application of s 48O(1)(c) of the Home Building Act 1989 NSW – jurisdiction & discretion - work order to include items of incomplete work – other terms and conditions of work order - third party contractor condition in work order – no structural columns direction in work order - delay damages to owners – no contract price adjustment.
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord’s duty - whether repairs are required – whether compensation payable for failure to carry out repairs - Alteration of premises by tenant – whether tenant may instal safety rails - Right to quiet enjoyment – no substantial interference
LAND LAW – Community title – Community scheme – Community association – Where by-laws of community association require the approval of the community association for any alteration to a lot which alters the external appearance of the lot – Extent of the jurisdiction of the Tribunal to review a decision of a community association to refuse approval – Circumstances in which a decision of a community association may be set aside or overruled by the Tribunal.
Home Building – meaning of developer – breach of statutory warranties – s. 3A of the Home Building Act 1989 (NSW) – meaning of residential development.
COSTS — application for costs by the builder – principles – builder awarded costs in its proceedings – owners awarded 50% of costs in their proceedings
Retail lease – damages claim for lost rent and expenses - no rent payable in the first year of the new lease – whether lessor has mitigated the loss – whether lessor entitled to recover GST – whether lease permits entitlement to interest when no demand made for payment made – costs
BUILDING AND CONSTRUCTION – application refused for reopening case after hearing - competing expert evidence as to quantum to rectify defective residential building work – jurisdiction under Home Building Act 1989 (NSW) – whether “major defects” - s 48MA preferred outcome – work order refused - money order made based on an assessment of the reasonable costs for rectification of defective work.
Home building – Reliance on flawed designs or specifications – Clause 40 contract Home building – s.18F defence Home building – Major defects – preferred outcome Home building – Variations paid by homeowners – Homeowners seeking refund – s.48K(3)
CONSUMER LAW – Misleading or deceptive conduct – Consumer guarantees – Supply of services – Guarantee as to due care and skill CONTRACTS – Termination – Repudiation of contract – Uncertainty – Severance of void term
LAND LAW---Strata title---Duty to repair common property---Whether duty breached---Nature and extent of repairs---Determination of appropriate works to comply with duty
Judgment of
G Sarginson, Senior Member
The Notice of Order issue on 01 March 2024 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows:
CONSUMER LAW: – goods not of acceptable quality–major failure to comply with guarantee – where no notice of rejection given to the supplier– compensation where accessories added to vehicle by the consumer after purchase –
BUILDING AND CONSTRUCTION – Whether contracts validly terminated – assessment of damages for delay, failure to provide occupation certificate, incomplete work and defective work
LAND LAW - Residential tenancies - whether landlord permitted an interference with the peace, comfort or privacy of a tenant - whether all reasonable steps were taken to prevent such an interference by neighbouring tenant - assessment of compensation
PRACTICE AND PROCEDURE – interlocutory application that respondent be permitted to rely on unredacted evidence in circumstances where only redacted evidence given to the applicants – whether non-publication orders should be made
LEASES AND TENANCIES - Residential community - - whether site agreement breached - termination order - possession order - s 122 of Residential (Land Lease) Communities Act 2013 (NSW) considered and applied COSTS – Whether special circumstances – application of established principles
BUILDING AND CONSTRUCTION---Home building---Termination of contract---Repudiation---Defective work---Unlicensed and uninsured work---Assessment of damages---Adequacy of evidence of loss
LAND LAW---Strata title--- -s 147 Strata Schemes Management Act 2015---Parking on common property---Service of notices to comply with by-laws---Whether contravention of notices to comply established---Applicable penalty
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
COSTS---Transfer of proceedings from NCAT to District Court---r 38 Civil and Administrative Tribunal Rules 2014---Calderbank offer---Whether unreasonably rejected---Whether cost order should be made in respect of the transfer of proceedings
LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – obligations of tenant and landlord – obligation to pay rent – obligation to pay utilities – proceedings in relation to rental bond and other claims by landlord after end of tenancy
HOME BUILDING APPLICATION – building claim – appeal against decision of insurer under building cover contract – whether policy provision excludes cover – successor in title – whether successor in title has an interest in the work – non completion of work by builder
LEASES AND TENANCIES---Legislation protecting tenants---Retirement Villages Act 1999 (NSW)---Calculation of recurrent charges---Whether terms of contract harsh, oppressive, unconscionable or unfair CONTRACTS---Unjust contracts---Contract Review Act 1980 (NSW)---Disparity monthly recurrent fees between different sized residences in retirement village---Whether terms of contract harsh, oppressive, unconscionable or unfair
CONSUMER CLAIMS – Fair Trading Act 1987(NSW) – Australian Consumer Law (NSW) – consumer guarantees in relation to the supply of goods – guarantee relating to the supply of goods by description – major failure – where motor vehicle purchase funded with dealer related finance – form of orders
LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) - obligation to maintain premises in a reasonable state of repair - work order sought - claim for compensation for loss of enjoyment
CONSUMER CLAIMS – Fair Trading Act 1987(NSW) – Australian Consumer Law (NSW) – consumer guarantees in relation to the supply of goods – remedy against a manufacturer of goods – contract – manufacturer’s warranty
COMMUNITY SCHEME – boat and trailer permanently parked by lot owners on lot property subject to a parking easement – application of Community Management Statement – application of by-law prohibiting parking of heavy vehicles – whether by-law uncertain – whether by-law harsh unconscionable or oppressive – whether there are discretionary reasons why the by-law should not be enforced against the lot owners.
LAND LAW - Strata title – Whether the owners corporation breached the duties to properly maintain and keep in a state of good and serviceable repair the common property and to renew or replace any fixtures or fittings comprised in the common property - Whether the owners corporation is liable for damages for loss of rent and other expenses – Whether a successful lot owner should be excluded from the obligation to contribute to any levy in respect of damages and costs payable to successful lot owner by an unsuccessful owners corporation
CONSUMER LAW — consumer guarantees – major failure – rejection of goods – rejection period – misleading and deceptive conduct — defective goods – costs.
LAND LAW – Strata title – By-laws – restrictions on by-laws – requirement that by-law not be harsh, unconscionable or oppressive – whether by-law imposing blanket prohibition on enclosure of any part of the mezzanine level of specified lots contravenes provision LAND LAW – Strata title – Common property – common property rights by-law – whether unreasonable refusal to consent
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty — Due care and skill — Fit for purpose — Proceedings for breach — Rectification order
AGENCY – Property and stock agents – estate agent – claim for refund of marketing costs – claim for relief from payment of commission fees – whether agent engaged in misleading and deceptive conduct
LEASES AND TENANCIES — Retail leases — Misleading or deceptive conduct LEASES AND TENANCIES — Retail leases — Repairs — Lessor’s duty – whether the duty extends to part of the common property - whether the lessee is not liable to pay rent where complaint about the condition of the common property
CIVIL PROCEDURE – Jurisdiction – Transfers to and from courts – Application to transfer proceedings to the District Court – Whether second application after first application dismissed was an abuse of process – Whether applicants had sufficiently raised claims exceeding the monetary jurisdiction of the Tribunal – Whether applicants had provided evidence that their claims exceeded the monetary jurisdiction of the Tribunal
BUILDING AND CONSTRUCTION – Home building – provisional sums contract – oral variations BUILDING AND CONSTRUCTION – Home building – defects – work order or monetary remedy
CONSUMER LAW – Breach of contract – Deactivation of Uber driver’s access to the Uber App – Whether deactivation authorised by contract between Uber entities and driver CONSUMER LAW – Unfair contract terms – Small business contract – Whether agreement between Uber entities and driver was a small business contract – Whether term permitting Uber entities to terminate the contract or deactivate access to the Uber App without notice or cause would be an unfair contract term – Whether term limiting the damages recoverable for breach of the contract by the Uber entities was an unfair contract term
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – excessive rent due to withdrawal or reduction in goods, services and facilities provided with residential premises – termination notices – retaliatory notice
CIVIL PROCEDURE---Transfer of proceedings---From NCAT to District Court---Jurisdiction of Tribunal under Home Building Act 1989---Claim for damages exceeding jurisdiction limit---Further and separate claim involving sale of premises---Whether grounds established for transfer
ENVIRONMENT AND PLANNING — Fences and boundaries — “Dividing fence” — Whether retaining wall is part of fence — Whether sufficient dividing fence — Order for fencing work
LAND LAW---Strata title---Storage of items on common property---Unauthorised alterations to common property---Whether Lot owner should be ordered to remove items and alterations
CONSUMER LAW-consumer guarantee under section 60 of Australian Consumer Law 2010 (NSW)-identity of contracting parties- status of deregistered company-whether architect provided services with due care and skill- terms and conditions of contract-meaning of due care and skill
BUILDING AND CONSTRUCTION - Whether agreement varied contract - whether final payment due - failure to provide keys - failure to provide plumbing certificate - validity of variation claims - whether builder entitled to recover all costs incurred - quantum meruit claim not raised until after the hearing - determination of amount payable
CONSUMER LAW---Consumer claim---Part 6A Fair Trading Act 1987(NSW)---Uber driver---Contract---Termination for breach---Whether conduct of driver justified termination---Damages---Loss of income
BUILDING AND CONSTRUCTION -Strata Scheme - Building defects - Jurisdiction of Tribunal to make work orders to a value of work greater than $500,000 - Settlement agreement between owners corporation and developer -Whether settlement agreement breached - Separate contract with builder to remediate work of original builder - Liability of developer and remedial builder - Whether work defective - Whether work involved major defects - Scope of appropriate remedial orders
PRACTICE AND PROCEDURE – Transfer of proceedings from Consumer and Commercial Division of NCAT to a court – Sch 4 cl 6 of the Civil and Administrative Tribunal Act 2013 – effect of Sch 4 cl 5 (jurisdiction to determine issues) on power of transfer – relevant considerations in determining whether to transfer proceedings.
LAND LAW – Community title – Community Scheme Duties owed by proprietors – Compliance with by-laws - By-laws requiring consent to the erection of new structures – By-laws requiring landscaping and structures to comply with Design Guidelines – Respondent erected acoustic barrier on boundary of his lot without the consent of the Community Association – Whether barrier erected in breach of by-laws – Whether by-laws harsh, unconscionable or oppressive – Community Land Management Act 2021 s 128 contemplates that, in the interests of preserving the ambience and amenity of the community association, restrictions may be imposed by the by-laws of a community association upon the manner and extent to which lot owners in a community association may utilise their property.
RETAIL LEASE - Whether arrears of rent waived - whether breach of disclosure requirement proved - status of related agreement for electricity costs - assessment of make good claim - running account
LAND LAW – Strata title – civil penalty – contravention of Tribunal orders – s 247A Strata Schemes Management Act 2015 – multiple breaches of orders – amount of penalty – when maximum penalty might be imposed – whether penalty should be paid to applicant owners corporation
Judgment of
M Harrowell, Deputy President
K Rosser, Principal Member
CONTRACTS — Breach of contract — Consequences of breach — Right to damages CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill
LAND LAW – Strata title – Strata Schemes Management Act 2015 (NSW) – Interim relief – Production of documents – Owners Corporation is not required to disclose to a lot owner with which it is in dispute documents subject to legal professional privilege
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – whether an agreement is a residential tenancy agreement – whether an agreement for the sale of land that confers a right to occupy – landlord’s right to access residential premises – termination of tenancy – non-payment of rent – whether issue arising in the application was the subject of proceedings before the Supreme Court of NSW on the date the application was made.
LEASES AND TENANCIES – breach of agreement – termination by Tribunal – breach sufficient to justify termination in the circumstances of the case – abandonment - break fee – rental bond – failure to lodge bond – landlord’s obligation to maintain premises in a reasonable state of repair – compensation
LAND LAW – Strata title – Obligations of owners and occupiers – Keeping of pets – Nuisance – Whether barking of dog shown to constitute a nuisance or unreasonable interference with the enjoyment of another lot LAND LAW – Strata title – Owners corporation – Strata committee – Whether respondent should be removed from the strata committee
LAND LAW — Strata schemes — Appointment of compulsory strata manager — Whether grounds for compulsory appointment are established — Which of two proposed compulsory strata managers should be appointed
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rental bonds — Payment and release — Rights and obligations of landlords and tenants — Termination — Grounds for
LAND LAW – Strata title – duty of an Owners Corporation to maintain and keep common property in a good and serviceable state of repair – breach – damages – appointment of compulsory strata manager – removal of an office holder from office
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – excessive rent due to withdrawal or reduction in goods, services and facilities provided with residential premises
LAND LAW – Strata title – Civil Penalty – contravention of Tribunal order – s 247A Strata Schemes Management Act 2015 – person entitled to receive payment of civil penalty – power of Tribunal to direct to whom penalty should be paid – relevant considerations in deciding recipient of civil penalty COSTS – award of costs in penalty proceedings – costs of strata managing agent appearing before Tribunal – costs of expert report where evidence rejected – lump sum award
LAND LAW – Strata title – Civil Penalty – contravention of Tribunal order – s 247A Strata Schemes Management Act 2015 – power to impose multiple penalties for continuing contraventions – whether there has been a contravention or contraventions
Judgment of
M Harrowell, Deputy President
K Rosser, Principal Member
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – rights and obligations of landlords and tenants – landlord’s obligation to maintain a rent record – landlord’s obligation to maintain premises in a reasonable state of repair – excessive rent due to withdrawal or reduction in goods, services and facilities provided with residential premises – termination notices – retaliatory notice
CIVIL PROCEDURE — Hearings — Adjournment — Abuse of process – No abuse of abuse established where second application for adjournment CIVIL PROCEDURE — Hearings — Adjournment — Relevant factors — Where there are proceedings on foot in both the Tribunal and a court - Where the Tribunal is deprived of jurisdiction in respect of issues – Adjournment granted
LAND LAW – Strata Title – By-laws – Noise – Installation of floating floor – Interference with the peaceful enjoyment of the owner or occupier of another lot – Amendment of by-law after installation of floating floor – By-law as amended requiring compliance with particular standard – Whether by-law as amended applies to pre-existing floor
CONSUMER LAW — Consumer guarantees — Supply of goods and services — Guarantee as to acceptable quality — Electric mountain bike — Whether bike of acceptable quality
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – rights and obligations of landlords and tenants – right to quiet enjoyment – reduction or withdrawal of goods, services and facilities provided with the residential premises – access to premises - damages
Costs – dispute complex – arguable - not frivolous, nor vexatious, misconceived, or lacking in substance Jurisdiction – jurisdiction to determine jurisdiction - agreement made in Germany – exclusive law and jurisdiction clause – forum non-conveniens
LEASES AND TENANCIES – residential communities - legislation protecting tenants – outgoing and operating expenses – repairs and improvements to community - whether site fee increase excessive
CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill — Guarantee as to fitness for a particular purpose — Guarantee as to reasonable time for supply
LAND LAW – Strata title – owners corporation – Accounts and records of owners corporation PRACTICE AND PROCEDURE – Renewal of proceedings – Sch 4 cl 8 to Civil and Administrative Tribunal Act 2013
PRACTICE AND PROCEDURE – Whether ex parte order should be set aside LANDLORD AND TENANT – Termination of residential tenancy agreement – jurisdiction to terminate – meaning of household impacted by COVID-19 pandemic – whether termination order should be made
CIVIL PROCEDURE - Jurisdiction - Application to transfer to Supreme Court - Claim for equitable relief - Relief equivalent to equitable relief available COSTS – Transfer application - Payable forthwith
LAND LAW – Strata title – Civil Penalty – contravention of Tribunal order – s 247A Strata Schemes Management Act 2015 – assessment of penalty – deterrence – relevant considerations – relevance of maximum penalty when assessing appropriate penalty – payment of penalty – whether penalty payable to applicant, the Crown or some other person – power of the Tribunal to direct to whom the penalty is to be paid
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — Tenant’s right to quiet enjoyment — Landlord’s obligation to safeguard belongings left behind
LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---repair of premises---breach---remedies---assessment of compensation LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---notice to terminate---whether retaliatory under s 115 Residential Tenancies Act 2010---discretion to set aside
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) - defects in building work - whether a work or a money order should be made in respect of defects
LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – rights and obligations of landlords and tenants – quiet enjoyment – obligation to take all reasonable steps to ensure that neighbouring tenants do not interfere with quiet enjoyment – meaning of “all reasonable steps”
COSTS – settlement of proceedings – circumstances in which a costs order should be made where proceedings settle – no circumstances justifying departing from the position that costs will not usually be awarded where proceedings are settled.
LANDLORD AND TENANT – retaliatory – end of fixed term notice - compensation - failure to repair and maintain – withdrawal and reduction of goods, services and facilities – rent abatement – excessive rent
STRATA SCHEMES – works by lot owner – whether work authorised – whether works caused water penetration STRATA SCHEMES - unreasonable refusal to make a common property rights by-law - failure to provide a written consent to the making of a Special By-Law
LAND LAW — Strata title — By-laws — requirement that by-law not be harsh, unconscionable or oppressive — where by-law prohibits cooking — whether by-law harsh, unconscionable or oppressive
RESIDENTIAL TENANCY – notice of termination – whether retaliatory notice RESIDENTIAL TENANCY – excessive rent - withdrawal by landlord of part of the facilities provided with residential premises
LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – Landlord’s obligation to repair and maintain premises – provide premises fit for habitation - what constitutes an application - extension of time - compensation
CONSUMER LAW – supply of services – guarantee of due care and skill – advice and information – guarantee of fitness for purpose – misleading and deceptive conduct – causation
PRACTICE AND PROCEDURE – application to distribute or transmit sound recording of Tribunal proceedings under Court Security Act 2005 (NSW) – application refused
STRATA SCHEMES – Whether a member of the committee should be removed from office, whether the Owners Corporation has unreasonably refused to make a By-law permitting the installation of solar panels on common property
LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – termination of a residential tenancy agreement – 90-day no grounds termination notice – defences – retaliatory notice LEASES AND TENANCIES – words and phrases - meaning of “social housing provider” – whether agreement is a “social housing tenancy agreement”
CONSUMER LAW — Consumer guarantees — Supply of goods — Guarantee as to acceptable quality — Guarantee as to fitness for purpose — Motor vehicle — Whether vehicle of acceptable quality— Whether vehicle fit for purpose CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill — Motor vehicle — Whether repairs done with due care and skill
COSTS---Strata Schemes---Application for interim orders dismissed----Whether special circumstances---Whether any special circumstances warrant costs order
HOME BUILDING: where Builder is not licensed to carry out the work – where there is no written contract and no homeowners warranty insurance – claim for repayment of monies paid – defective and incomplete work
REAL PROPERTY – STRATA MANAGEMENT – duty to maintain and repair common property – alterations to common property – common property rights by-law – compulsory strata management – Strata Schemes Management Act 2015 (NSW) ss 90, 106, 108, 126, 143, 149
TENANCY LAW- Residential tenancy agreement-claim for compensation for cleaning and damage-rental bond dispute-meaning of fair wear and tear-assessment of compensation
LAND LAW – Strata title - Owners Corporation – application for installation of air-conditioning condenser unit– whether proposed works unreasonably refused – whether non-compliant with by-law
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – termination order – hardship to landlord – special circumstances of the case – undue hardship
COSTS---r 38 Civil and Administrative Rules 2014 (NSW)---Dismissal for want of jurisdiction---Principle that costs follow event---No basis to depart from usual principle
CONSUMER LAW — Consumer guarantees — Supply of goods and services — Guarantee as to due care and skill — Guarantee as to acceptable quality — Motor vehicle — Whether repairs done with due care and skill — Whether part of acceptable quality
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Warranties implied into residential building contracts – Due care and skill - Compliance with specifications – Fitness for purpose – Applicant repudiated contract by refusing respondent access to complete work – Scope of work in contract not fit to achieve the purpose disclosed by the applicant – Applicant had not paid full contract price – No evidence to establish what it would have cost the applicant to achieve the disclosed purpose – Tribunal unable to assess whether respondent entitled to any further payment – Order made that applicant not liable for further payment
COSTS---r 38 Civil and Administrative Tribunal Rules 2014---No special circumstances required---Respondent the successful party---Indemnity costs---No basis for indemnity costs established
BUILDING & CONSTRUCTION; Home Building – breach of statutory warranties – where work involved the conversion to residential use of a commercial space – scope of contract -effect of implied warranties.
CONSUMER LAW – consumer guarantees – supply of goods – guarantee as to acceptable quality – action against manufacturer of goods – when does a cause of action accrue CONSUMER LAW – Fair Trading Act 1987 (NSW) – limitation period
LAND LAW---Strata title---Civil penalty---s 147 Strata Schemes Management Act 2015---Service of notices to comply with by-laws---Whether contravention of notices to comply established---Applicable penalty
STRATA TITLES LAW - strata schemes - common property – refusal to make common property rights by-law – whether refusal unreasonable – challenge to credibility of witnesses – application of rule in Browne v Dunn to proceeding in Tribunal
LAND LAW - Strata title - whether proposed common property rights by-law unreasonably refused LAND LAW – Strata title – whether lot owners made an unauthorised addition to common property requiring a special resolution
LANDLORD AND TENANT- residential parks –– electricity charges – method of charging for a resident’s consumption of electricity – whether resident has been overcharged-whether site fee increase is excessive-fixed increase- otherwise than a fixed method
REAL PROPERTY – BUILDING and CONSTRUCTION – HOME BUILDING – rights on termination of contract – entire contract with progress payments on account – substantial failure of consideration - refund of monies paid
COSTS – Rule 38(2) applies - multiple and interrelated issues in Lessee’s application and in Lessors’ cross application against Owners Corporation - varying degrees of success in both applications – the “event” is determined by the substance and reality of the outcome of the proceeding - proper exercise of discretion as to costs
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”