Auguste v Nikolyn Pty Ltd - [2016] FCCA 1045

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUGUSTE v NIKOLYN PTY LTD & ANOR

[2016] FCCA 1045

Catchwords:
CONSUMER PROTECTION – Misleading and deceptive conduct – building contract – whether representation as to time for building work to be completed – no representation – implied term that work to be undertaken in a reasonable time – work undertaken in a reasonable time – application dismissed.

CONTRACT – Building contract – where contract did not stipulate price for part of the work to be undertake – additional work undertaken not part of the contract – claim for reasonable remuneration for work and labour done.

Legislation:

Competition and Consumer Act2010 (Cth) schedule 2, ss. 4 and 18
Construction Contracts Act 2004 (WA), s.16 and Div. 4, clause 5(2)(f)
Fair Trading Act 1997 (WA) ss.77, 79
Federal Circuit Court of Australia Act 1999, s.18

Cases cited:
D & Z Constructions Pty Ltd v IHI Corporation [2013] WASC 265
DM Drainage & Constructions Pty Ltd v Karara Mining Ltd [2014] WASC 170

Applicant:

ROBERT STEPHEN AUGUSTE

First Respondent:

NIKOLYN PTY LTD
ACN 078 833 977

Second Respondent:

DONATO COLASANTE

File Number:

PEG 324 of 2011

Judgment of:

Judge Jarrett

Hearing dates:

9, 10 & 11 June 2014

Date of Last Submission:

11 June, 2014

Delivered at:

Brisbane

Delivered on:

3 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr Rumsley
Mr Rumsley with Mr Clifford (on 10 and 11 June, 2014)

Solicitors for the Applicant:

Alan Rumsley

Counsel for the Respondent:

Ms Breach

Solicitors for the Respondent:

D’Angelo Legal

ORDERS

Judgment for the first and second respondents on the application filed on 11 November, 2011;
The application filed on 11 November, 2011 be dismissed;
Judgment for the first respondent against the applicant on the cross-claim filed on 10 January, 2012 for $99,523.67 plus interest;
The applicant pay to the first respondent the sum of $99,523.67 together with interest thereon in such sum as the parties might agree and failing agreement as fixed by the Court in pursuant to order (6) hereof;
The parties bring in agreed short minutes of orders dealing with:
(a)the question of costs on the application and crossclaim; and
(b)interest on the first respondent’s crossclaim
within 28 days of the date of these orders.
In the event that the parties are not agreed on orders for costs and interest within 28 days of the date of these orders, the application is listed for submissions about the form of orders in relation to the matters dealt with in order (5) hereof at 11.30am (Queensland time) on 13 June, 2016 in the Federal Circuit Court of Australia sitting at Brisbane.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 324 of 2011

ROBERT STEPHEN AUGUSTE

Applicant

And

NIKOLYN PTY LTD ACN 078 833 977

First Respondent

DONATO COLASANTE

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Building and construction cases are generally not within the jurisdiction of this Court. Those types of matters are generally dealt with in the relevant court of the State in which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Auguste v Nikolyn Pty Ltd

Details

AGLC: Auguste v Nikolyn Pty Ltd [2016] FCCA 1045
Case: [2016] FCCA 1045
Decision Date: 3 May 2016

CaseChat Overview and Summary

The applicant, Auguste, brought proceedings against the respondent, Nikolyn Pty Ltd, concerning a building contract. Auguste alleged that Nikolyn had engaged in misleading and deceptive conduct in relation to the time for completion of building works. Auguste also sought remuneration for additional work undertaken that was not part of the original contract. The matter was heard by Judge Jarrett in the Magistrates Court of Queensland.

The court was required to determine two primary legal issues. Firstly, whether Nikolyn had made any representation regarding the time for completion of the building works, and if so, whether that representation constituted misleading or deceptive conduct under consumer protection legislation. Secondly, the court had to consider whether the additional work undertaken by Nikolyn was outside the scope of the original contract and, if so, whether Auguste was liable to pay a reasonable remuneration for that work and labour done.

Judge Jarrett found that no specific representation had been made by Nikolyn as to the time for completion of the building works. The court held that in the absence of a stipulated completion date, the law implies a term that the work must be undertaken within a reasonable time. The evidence presented indicated that the work had, in fact, been completed within a reasonable timeframe. Consequently, the claim for misleading and deceptive conduct was dismissed. Regarding the additional work, the court determined that this work was not part of the original contract and that Auguste had not established a claim for reasonable remuneration for work and labour done.

The application brought by Auguste was dismissed.

Orders