Bhatt v Yto Construction Pty Ltd

The appeal concerned a dispute between Bhatt (the appellant) and Yto Construction Pty Ltd (the respondent) regarding an adjudication decision made under the *Building and Construction Industry Security of Payment Act 2009* (NSW). The core of the dispute involved whether representations made by Yto Construction in its adjudication application to the adjudicator constituted misleading or deceptive conduct in trade or commerce, actionable under section 18 of the *Australian Consumer Law*. The matter came before the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the conduct of Yto Construction in making representations within its adjudication application to the adjudicator was conduct undertaken "in trade or commerce" for the purposes of section 18 of the *Australian Consumer Law*. This required the court to consider the nature of the adjudication process and the character of the statements made by a party in that context.

The Court of Appeal allowed the appeal, finding that the representations made by Yto Construction in its adjudication application were not conduct undertaken "in trade or commerce" as contemplated by section 18 of the *Australian Consumer Law*. The court reasoned that the adjudication process, while related to commercial activity, was a statutory dispute resolution mechanism, and statements made within that specific context, particularly to an adjudicator, did not fall within the ordinary meaning of "trade or commerce" for the purposes of consumer protection law. Consequently, the court set aside the orders of the District Court and dismissed the Amended Statement of Claim, ordering the respondent to pay the appellant's costs.