Commissioner for Consumer Protection v Healy - [2021] WASC 468

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   COMMISSIONER FOR CONSUMER PROTECTION -v- HEALY [2021] WASC 468
CORAM:   ARCHER J
HEARD:   5 - 8 OCTOBER 2021
DELIVERED          :   23 DECEMBER 2021
FILE NO/S:   CIV 2066 of 2020
BETWEEN:   COMMISSIONER FOR CONSUMER PROTECTION
Plaintiff
AND
ALWYN ROBERT HEALY
Defendant

Catchwords:

Breach of undertaking - permanent injunction on involvement in domestic air‑conditioning - Australian Consumer Law

Legislation:

Australian Consumer Law, s 218

Result:

Declarations made, permanent injunction granted, compensation orders made

Category: B

Representation:

Counsel:

Plaintiff	:	GD Cobby SC & JLC Rivalland
Defendant	:	In Person

Solicitors:

Plaintiff	:	Department of Mines, Industry Regulation and Safety - Consumer Protection Division (In House Legal Counsel)
Defendant	:	Not Applicable

Case(s) referred to in decision(s):

Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513
Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695
Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378
Commissioner for Consumer Protection v Armstrong [2012] WASC 206
Commissioner for Consumer Protection v Armstrong [2012] WASC 206 (S)
Commissioner for Consumer Protection v Healy [2011] WASC 36
Healy v Commissioner for Consumer Protection [2010] WASC 177
Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53
Samsung Electronics Australia Pty Ltd v LG Electronics Australia Pty Ltd (No 2) [2015] FCA 477
Trade Practices Commission v GLO Juice Company Pty Ltd (1987) 73 ALR 407

Table of Contents

Introduction

The Australian Consumer Law

Issues

The evidence

Facts

Background facts

The Third Undertaking

The conduct after the Third Undertaking

The advertisements

Inadvertent breach?

The contacts with the Customers

November 2019
December 2019
January 2020
February 2020
March 2020
April 2020
May 2020
June 2020
August 2020
September 2020
December 2020
January 2021
February 2021

The witnesses

Mrs Surtees

Mr Healy

Particular factual findings

The breaches of the Third Undertaking

Should a declaration be made?

Should a permanent injunction be granted?

Breaches of s 36 of the Australian Consumer Law

Likely to continue to breach?

Conclusion on injunction

Compensation

Mr Woods

Mr and Mrs Gibbons?

Orders

ARCHER J:

Introduction

Mr Healy has been involved in the supply of domestic air conditioners for many years. The Commissioner for Consumer Protection has been involved with Mr Healy for many years.
The Commissioner asserts that Mr Healy breached an undertaking which was to the effect that he would not be involved in any capacity in the retail sale, supply, or installation of air-conditioning systems for domestic use for a period of five years, to expire on 28 July 2020. The Commissioner seeks a declaration that Mr Healy breached the undertaking.
The Commissioner's allegations relate to advertising placed by Mr Healy in 2019 and air-conditioning sales Mr Healy made to four consumers in late 2019 and early 2020: Mrs Surtees, Mr Woods, Mr Shelton and Mr and Mrs Gibbons. I will refer to those consumers collectively as the 'Customers'.
Mr Healy admits he breached the undertaking in relation to the sales to the Customers. He says these breaches were inadvertent. He says he thought the undertaking expired on 17 April 2019.
Mr Healy denies breaching the undertaking in relation to the advertisements. He says (capitalisation in original):[1]
The undertaking excluded trading as a Manufacturer or a Distributor or a Sub Contractor. The Explicit ban was Direct involvement in the Sale and Installation of Residential air conditioning and excluded all other aspects of trading. Advertising … was conducted to generate inquiries for independent retailers to make contact direct with and deal directly with consumers.
[1] Amended Defendant's Opposition to Plaintiff's Originating Motion filed 18 June 2021 (Defence) [1(a)].
The Commissioner further asserts that Mr Healy's conduct also breached s 36(3) and s 36(4)[2] of the Australian Consumer Law (WA) (ACL). In short, the Commissioner alleges that, as at the time Mr Healy took deposits from each of the Customers, there were reasonable grounds for believing that he would not be able to supply the air-conditioning systems within the time indicated or within a reasonable time and that Mr Healy was aware of those grounds. The Commissioner also alleges that Mr Healy failed to supply the systems within the time indicated or within a reasonable time.
[2] The Commissioner originally also alleged a breach of s 18, but reliance on this was withdrawn on the basis it did not add anything to the s 36 allegations - see ts 347.
Mr Healy denies breaching the ACL. He says, in summary terms:[3]
1.there were no fixed dates by which the units were to be installed;
2.he installed three of the four units within a reasonable period and within any indicated installation date;
3.the units were 'practically completed' at the time of installation. Although they lacked external lids and the Customers could therefore not use the heating function, the Customers did not need to use the heating function because the units were installed in summer;
4.he was prevented from installing one unit because the Customer unreasonably cancelled the contract; and
5.any delays were:
a.the fault of the entities who were forming the casing parts, and he believed, and had a reasonable basis for believing, that the parts would be provided much sooner than they were; or
b.caused by extremely hot weather that prevented work being done.
[3] See, for example, Defence [38(b)].
In addition to the declaration, the Commissioner seeks a permanent injunction restraining Mr Healy from having any involvement in the retail sale, supply, or installation of air-conditioning systems for domestic use. The Commissioner submits that Mr Healy 'has proved himself incapable of conducting business relating to the retail marketing of domestic air-conditioning systems in a manner which does not contravene the fair trading laws, such that he is a risk to the public at large'.[4] The Commissioner submits, among other things, that Mr Healy has been involved in a large number of contraventions of the fair trading laws since 2007.[5] The Commissioner alleges that Mr Healy, if not restrained, is likely to continue to engage in conduct that breaches s 36 of the ACL.[6]
[4] Plaintiff's Outline of Submissions filed 4 December 2020 (Commissioner's Submissions) [27].
[5] Commissioner's Submissions [27].
[6] Amended Notice of Originating Motion filed 30 April 2021 (Originating Motion) under the heading 'Grounds of application' (Plaintiff's Grounds) [38(c)]. The Commissioner originally also alleged a breach of s 18, but reliance on this was withdrawn on the basis it did not add anything to the s 36 allegations - see ts 347.
Mr Healy denies this. He says that, apart from the three breaches of the Third Undertaking that he admits, he 'has observed the 4 Undertakings plus the Writ of 2009 spanning 11 years'.[7]
[7] Defence [38(c)].
Finally, the Commissioner alleges that Mr Healy has caused loss and damage to two of the Customers because of his contravention of the Third Undertaking. The Commissioner seeks an order, pursuant to s 218(4)(c) of the ACL, that Mr Healy pay compensation to those Customers.
Mr Healy denies causing a loss. He claims, in effect, that Mr Woods caused his own loss by removing the unit Mr Healy installed and replacing it with a unit obtained from another source.[8] He claims, in effect, that Mr Gibbons did not suffer a loss as Mr Gibbons received the air-conditioning unit he contracted to buy.[9]
[8] Defence [38(d)].
[9] Defence [3A].

The Australian Consumer Law

Section 36 relevantly provides:
36Wrongly accepting payment
…
(3)A person must not, in trade or commerce, accept payment or other consideration for goods or services if, at the time of the acceptance:
(a)there are reasonable grounds for believing that the person will not be able to supply the goods or services:
(i)within the period specified by or on behalf of the person at or before the time the payment or other consideration was accepted; or
(ii)if no period is specified at or before that time‑within a reasonable time; and
(b)the person is aware or ought reasonably to be aware of those grounds.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(4)A person who, in trade or commerce, accepts payment or other consideration for goods or services must supply all the goods or services:
(a)within the period specified by or on behalf of the person at or before the time the payment or other consideration was accepted; or
(b)if no period is specified at or before that time-within a reasonable time.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(5)Subsection (4) does not apply if:
(a)the person's failure to supply all the goods or services within the period, or within a reasonable time, was due to the act or omission of another person, or to some other cause beyond the person's control; and
(b)the person took reasonable precautions and exercised due diligence to avoid the failure.
(6)Subsection (4) does not apply if:
(a)the person offers to supply different goods or services as a replacement to the person (the customer) to whom the original supply was to be made; and
(b)the customer agrees to receive the different goods or services.
(7)Subsections (1), (2), (3) and (4) apply whether or not the payment or other consideration that the person accepted represents the whole or a part of the payment or other consideration for the supply of the goods or services.
Section 218(4) of the ACL provides:
218.Regulator may accept undertakings
If the court is satisfied that the person has breached a term of the undertaking, the court may make all or any of the following orders:
(a)an order directing the person to comply with that term of the undertaking;
(b)an order directing the person to pay to the Commonwealth, or to a State or Territory, an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;
(c)any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;
(d)any other order that the court considers appropriate.
The Commissioner submits that I have the power under s 218(4)(d) to make the declarations and grant the injunction he seeks. I agree.[10]
[10] And see Commissioner for Consumer Protection v Armstrong [2012] WASC 206 [46] - [47] and Commissioner for Consumer Protection v Armstrong [2012] WASC 206 (S).

Issues

The primary issues are:
1.Did Mr Healy breach the Third Undertaking by causing the advertisements to be published?
2.Should I make a declaration that Mr Healy breached the Third Undertaking?
3.Should I grant a permanent injunction restraining Mr Healy from having any involvement in the retail sale, supply, or installation of air-conditioning systems for domestic use? This issue raises, in particular, the following questions:
a.Did Mr Healy breach s 36 of the ACL?
b.If so, is Mr Healy likely to continue to breach s 36 of the ACL if he is not restrained?
4.Should I make any compensation orders? This issue raises the following questions:
a.Did Mr Healy's breach of the Third Undertaking cause loss and damage to Mr Woods?
b.If so, should I make an order that Mr Healy pay compensation to Mr Woods?
c.Did Mr Healy's breach of the Third Undertaking cause loss and damage to Mr and Mrs Gibbons?
d.If so, should I make an order that Mr Healy pay compensation to Mr and Mrs Gibbons?
I will deal with the issues in turn.

The evidence

The Commissioner called three of the four Customers and the daughter of one of them. The Commissioner tendered the affidavit of the fourth Customer,[11] Mr Woods, who was not well enough to attend the trial. The Commissioner also tendered affidavits of a Mr Da Silva, Ms McCrone and Ms Davis. The first two dealt with advertisements Mr Healy had placed. Ms Davis' affidavit set out the history of Mr Healy's engagement with the relevant department[12] and the Commissioner, and attached various documents. The Commissioner also tendered a bundle of emails between BCJ Plastics Products (BCJ) and Mr Healy.[13] BCJ was one of the companies Mr Healy had engaged to form components of the air-conditioning units.
[11] Affidavit of Barry William Woods filed 22 October 2020 (Woods Affidavit), and see ts 12.
[12] The Department of Mines, Industry Regulations and Safety.
[13] Exhibit 12.
Mr Healy called a previous Commissioner of Consumer Protection to give evidence, Mr Hillyard.
Mr Healy tendered in evidence a number of the affidavits he had filed in these proceedings. In addition, having confirmed in his oral evidence that it was true and correct to the best of his knowledge and belief, Mr Healy tendered his filed defence. Mr Healy also gave oral evidence.
Mr Healy did not challenge the contents of the affidavits of Mr Da Silva or Ms McCrone. He did not substantially challenge the contents of Ms Davis' affidavits. The challenges he did make are discussed later.[14]
[14] Under the heading 'Facts'.
Mr Healy did not substantially challenge the oral evidence of two of the three Customers or the affidavit evidence of the fourth. He did substantively challenge the evidence of one of the Customers, Mrs Surtees. The challenges Mr Healy made are discussed later.[15]
[15] Under the heading 'Facts'.
The Commissioner did not cross examine Mr Hillyard, and did not challenge his evidence. The Commissioner did challenge Mr Healy's evidence, and submitted that I should not accept it unless it was evidence against his interests or was independently corroborated. As I will later explain, I accept that submission. Mr Healy was not a reliable or credible witness.

Facts

Background facts

The background facts were largely not in dispute. They were helpfully summarised in the grounds of the application[16] and evidenced primarily in an affidavit of Anna Marie Davis, filed 22 October 2020 (Davis Affidavit). They were largely admitted by Mr Healy.[17] Unless otherwise indicated, what follows reproduces or draws upon these documents.
[16] Plaintiff's Grounds.
[17] See the Defence. In short, Mr Healy admitted all of the paragraphs in the Plaintiff's Grounds except for paragraphs 5, 9, 31 - 34 and 37 - 38.
On 18 August 2009, the Commissioner commenced proceedings in this court seeking interlocutory and permanent injunctions against Mr Healy seeking to restrain him from making representations about, entering into agreements concerning, and selling, residential air-conditioning systems (Supreme Court Action).[18]
[18] Plaintiff's Grounds [1], admitted in the equivalent paragraph of the Defence.
On 19 November 2009, Mr Healy gave a voluntary undertaking to this court (First Undertaking), through his counsel, to the effect that he:[19]
a.would not represent to any person that any residential air conditioning system that he, or any entity subject to his control, proposes to supply to that person, or to any other person nominated by that person, has both cooling and heating functions, when the system will not possess both those functions at the time that the system is installed;
b.within two working days of entering into a contract for the supply of a system to any person (referred to as a customer), the Defendant would order and pay for all parts necessary for the supply and installation of a complete system;
c.would respond to all inquiries from customers within 48 hours of the inquiry being made;
d.within 24 hours of becoming aware of any circumstances that would prevent the Defendant from being able to supply the system on the date specified in the contract for the supply of that system, the Defendant would inform the customer of the reason he would not be able to supply the system on the date specified in the contract, and the date on which the system would be or will be installed; and
e.if the supply and installation of a system sold to a customer not be completed within 14 days of the date specified in the contract for the supply of the system, the Defendant would refund in full to the customer all monies received from the customer, such refund to be made within 48 hours of that 14 day time limit being exceeded.
[19] Plaintiff's Grounds [3], admitted in the equivalent paragraph of the Defence.
On 7 December 2009, Mr Healy was convicted in the Magistrates Court of two offences under the Fair Trading Act 2010 (WA) (FTA) for representing, in trade and commerce, and in connection with the supply of air-conditioning systems to two customers, that the air-conditioning systems had a use that they did not have; namely, that they could be used for heating.[20] Mr Healy's appeal against the convictions and sentences was dismissed.[21]
[20] Plaintiff's Grounds [2], admitted in the equivalent paragraph of the Defence. Although the grounds and Davis Affidavit incorrectly stated the date was 6 November, this was an immaterial error.
[21] Healy v Commissioner for Consumer Protection [2010] WASC 177.
On 30 December 2009, the Commissioner commenced proceedings in the Magistrates Court on behalf of nine consumers against Mr Healy for breaches of the FTA and/or for breaches of contract, relating to contracts between the consumers and Mr Healy for the supply of residential air-conditioning systems (First Magistrates Court Proceedings).[22]
[22] Plaintiff's Grounds [4], admitted in the equivalent paragraph of the Defence.
Between 24 May 2010 and 9 August 2010, the Commissioner obtained judgment against Mr Healy in each of the First Magistrates Court Proceedings.[23] Attached to the Davis Affidavit at 'AMD-7' are what are said to be true copies of the certificates of judgment given in the First Magistrates Court Proceedings. There are six. One judgment was obtained on 24 May 2010, the other five were obtained on 9 August 2010.
[23] Plaintiff's Grounds [5] and the Davis Affidavit [13].
Mr Healy admitted that the judgments were obtained.[24] However, he claimed that the 'proceedings were put on hold pending the outcome of the [Supreme Court Action] where the consumers were listed in the schedule marked "ARH1"'.[25]
[24] ts 277.
[25] Defence [5].
ARH1 is a copy of the schedule (Schedule) that was attached to an undertaking given in 2011 and also attached to consent orders made on 12 November 2013 (both of which will be discussed later).[26] The Schedule lists 50 names, under the heading 'Consumer'. Next to each name is a dollar amount, under the heading 'Outstanding Sum ($)'. Each of the six consumers in relation to whom certificates of judgment were issued in the First Magistrates Court Proceedings appear on the Schedule (as to the partners of three of them).
[26] A copy of the Schedule can be found in the Davis Affidavit page 135. A copy of this Schedule, with the annotation 'ARH1' was attached to Mr Healy's affidavit filed on 24 November 2020. This affidavit was not tendered in evidence during the hearing, but Mr Healy did not dispute that 'ARH1' was the same as the Schedule.
In his oral evidence, Mr Healy claimed that, in 2011, he had explained to a magistrate that the debts in the Magistrates Court proceedings were the same debts as were listed on the Schedule in the Supreme Court proceedings. He said that the magistrate had asked why the same debts would be duplicated and, when no one could answer that, 'what he did was he put them aside'.[27] Mr Healy's evidence as to whether this was before or after the certificates were issued appeared to change. His final position appeared to be that it was before.[28]
[27] ts 175.
[28] See ts 175, 178 - 180.

Later, I will explain why I do not accept Mr Healy's evidence unless it was against his interest or independently corroborated. I do not accept that a magistrate did 'set aside' the debts.
1.First, if Mr Healy was contending this occurred prior to judgment being entered, it is inherently unlikely that a magistrate said this, or anything to this effect. It would be inconsistent with the subsequent granting of judgment.
2.Second, and regardless of whether he contends it was before or after judgment was obtained, Mr Healy undertook (as will be seen) to repay the consumer debts in late 2011 and again in 2013. This is inconsistent with a belief that the debts had been set aside.
3.Third, this claim is also internally inconsistent with his claim, discussed later, that the consumer debts were 'extinguished' by agreement with Mr Hillyard in 2015.
The Commissioner instituted contempt proceedings in late 2009. On 6 October 2010, Kenneth Martin J found Mr Healy guilty of contempt for breaching the First Undertaking. His Honour found six breaches proved in relation to four consumers.[29]
[29] Commissioner for Consumer Protection v Healy [2011] WASC 36 (Healy 2011). See also the Plaintiff's Grounds [6], admitted in the equivalent paragraph of the Defence. None of these consumers were on the Schedule.
During closing addresses in the contempt proceedings, Mr Healy offered bank cheques to three of the four consumers to refund their deposits. He paid the fourth only after he was found guilty of contempt and Kenneth Martin J intimated that his Honour's determination of the appropriate penalty would be heavily influenced by whether all deposits were refunded.[30]
[30] See Healy 2011 [50], [56] - [62].
On 1 November 2010, his Honour sentenced Mr Healy to 20 days' imprisonment, suspended for 12 months.[31]
[31] Plaintiff's Grounds [7], admitted in the equivalent paragraph of the Defence.
On 11 April 2011, the Commissioner commenced proceedings in the Magistrates Court on behalf of a further 26 consumers against Mr Healy for breaches of the FTA and/or for breaches of contract, relating to contracts between the consumers and Mr Healy for the supply of residential air-conditioning systems (Second Magistrates Court Proceedings).[32]
[32] Plaintiff's Grounds [8], admitted in the equivalent paragraph of the Defence. Although the grounds and Davis Affidavit incorrectly stated there were 27, this was an immaterial error.
On 12 May 2011, the Commissioner obtained judgment against Mr Healy in each of the Second Magistrates Court Proceedings.[33] Attached to the Davis Affidavit at 'AMD-11' are what are said to be true copies of the certificates of judgment given in the Second Magistrates Court Proceedings. There are 26. Mr Healy acknowledges that each of the 26 consumers named in the certificates appear on the Schedule.[34]
[33] Plaintiff's Grounds [9] and the Davis Affidavit [18]. Although the grounds and Davis Affidavit incorrectly stated this was on 23 May, this was an immaterial error.
[34] See ts 175, 299 - 300.
Mr Healy admitted that the judgments were obtained.[35] However, he again claimed that the 'Magistrates Court placed all 26 proceedings on hold pending the outcome of the [Supreme Court Action].'[36] For the same reasons as I gave for rejecting his claim that this had occurred in the First Magistrates Court proceedings, I do not accept this.
[35] ts 277.
[36] Defence [9].
Mr Healy also asserted that the Commissioner 'later Extinguished all the outstanding amounts listed on the [Schedule], which included the twenty-six consumers, when [he] signed the Undertaking dated 28/07/2015'.[37] In his evidence, Mr Healy said that the debts were extinguished when he signed an undertaking in 2015. He said, in effect, that Mr Hillyard and the Supreme Court registrar conducting the mediation had told him that this would be the effect of signing the undertaking.[38] The Commissioner disputes this, and I will discuss this later, when discussing the 2015 undertaking.
[37] Defence [9].
[38] ts 278.
On 13 October 2011, the Commissioner accepted, pursuant to s 218 of the ACL, an enforceable undertaking from Mr Healy (Second Undertaking)[39] for a seven-year period. The terms of the Second Undertaking included an undertaking that Mr Healy '[w]ill pay the outstanding sums owed to the consumers set out in Schedule 1 to this Undertaking on or before 31 December 2012 …'.[40] It was common ground that 'Schedule 1' was the same Schedule as referred to earlier.[41]
[39] Plaintiff's Grounds [10], admitted in the equivalent paragraph of the Defence.
[40] Davis Affidavit page 120. See also the Plaintiff's Grounds [11], admitted in the equivalent paragraph of the Defence.
[41] See, for example, ts 16 - 17, 175, 299.
On 26 October 2011, Kenneth Martin J made orders staying the Supreme Court Action on the Commissioner's acceptance of the Second Undertaking.[42]
[42] Plaintiff's Grounds [12], admitted in the equivalent paragraph of the Defence.
Mr Healy says that he was unable to 'maintain the payments' as his health deteriorated in early 2012 and he could not work.[43] Mr Healy did not make any of the payments required by the Second Undertaking.
[43] Defence [11].
On 22 February 2013, Mr Healy signed a variation of the Second Undertaking, which effectively extended the time by which Mr Healy was to pay the outstanding sums to 30 June 2013.[44]
[44] Plaintiff's Grounds [13], admitted in the equivalent paragraph of the Defence.
Although Mr Healy signed the variation, he claims that 'the court ordered time to pay consumers by 30/6/13 was unreasonable due to the knowledge that [he] could not drive while being kept alive with a [b]attery assisted [m]echanical [p]ump'.[45] This was a reference to Mr Healy's heart problems.
[45] Defence [13].
On 12 November 2013, the Commissioner and Mr Healy filed consent orders, by which:[46]
1.judgment was entered for the Commissioner;
2.six declarations were made that Mr Healy contravened various provisions of the FTA and the ACL; and
3.Mr Healy was required to pay the outstanding sums owed to the consumers set out in the Schedule on or before 30 June 2015 by way of monthly repayments of at least $5,000 to the Commissioner starting 30 June 2013.
[46] Plaintiff's Grounds [14], admitted in the equivalent paragraph of the Defence. The consent orders are in the Davis Affidavit AMD-15.
Mr Healy did not make any of those payments.[47] Mr Healy says that this was because his poor health prevented him working from 2009 to 2015.[48]

The Third Undertaking

[47] Plaintiff's Grounds [15], admitted in the equivalent paragraph of the Defence.

[48] Defence [15].

On 28 July 2015, the Commissioner accepted, pursuant to s 218 of the ACL, an enforceable undertaking from Mr Healy (Third Undertaking).[49]
[49] Plaintiff's Grounds [16], admitted in the equivalent paragraph of the Defence.
The terms of the Third Undertaking were as follows:[50]
For the purpose of section 218 of the ACL(WA), I Alwyn Robert HEALY, UNDERTAKE to the Commissioner that I will not have any involvement in any capacity, whether as principal, director, manager, employee, servant, agent or otherwise howsoever, in the retail sale, supply, installation, negotiation or acceptance of orders for any air conditioning system for personal, household or domestic use for a period of 5 years from the date of this Undertaking.
[50] Davis Affidavit AMD-16. See also the Plaintiff's Grounds [17].
Mr Healy asserts that the Third Undertaking was made on the understanding that all other actions, including the repayments to the customers, would be withdrawn.[51]
[51] Affidavit of Alwyn Robert Healy sworn 23 April 2021, filed 18 June 2021.
Mr Healy called Mr Hillyard to give evidence. At the time of the Third Undertaking, Mr Hillyard was the director or acting director of the relevant department.[52] Mr Healy asserted that, in the course of a mediation,[53] the parties had agreed that, if he signed the Third Undertaking, all other actions, including the repayments to the customers, would be withdrawn.
[52] ts 107.
[53] See s 71(3)(b) of the Supreme Court Act 1935 (WA) and ts 30 - 32 of 27 April 2021.
Mr Hillyard's evidence was that he had agreed that money owed to the department, as distinct from money owed to the consumers, would be forgiven. He said he was referring to fines and costs from previous actions against Mr Healy.[54] He said he could not recall the exact language he used, but said he believed that his words were 'fairly clear that it was what was owed to the Department'.[55]
[54] ts 114 - 116.
[55] ts 116.
As I later explain, I do not accept Mr Healy's evidence unless it is against his interest or independently corroborated. I do not accept that he was told that the consumer debts would be extinguished if he signed the Third Undertaking.

The conduct after the Third Undertaking

The Commissioner asserts that Mr Healy engaged in conduct which breached the Third Undertaking and which also breached s 36 of the ACL.
Mr Healy admits most of the alleged conduct. He admits he breached the Third Undertaking as alleged, with one exception. He denies he breached s 36 of the ACL.
The alleged conduct was again helpfully summarised in the Plaintiff's Grounds. Unless otherwise indicated, what follows reproduces or draws upon that summary.
On 14 September 2015, Mr Healy registered an active Australian Business Number, being ABN 94 894 534 477 (ABN).[56]
[56] Plaintiff's Grounds [18], admitted in the equivalent paragraph of the Defence.
On 26 September 2015, Mr Healy registered the business name 'R.E.A.C.T.AIR' (R.E.A.C.T.AIR) to his ABN.[57]

The advertisements

[57] Plaintiff's Grounds [19], admitted in the equivalent paragraph of the Defence.

On or around 8 May 2019, Mr Healy entered into an agreement with an entity trading as Concept Marketing (Concept Marketing) for the provision of advertising services for R.E.A.C.T.AIR.[58]
[58] Plaintiff's Grounds [20], admitted in the equivalent paragraph of the Defence.
Mr Healy caused, through Concept Marketing, advertisements to be published for R.E.A.C.T.AIR offering the retail sale, supply, and installation of air-conditioning systems for personal, household, or domestic use:
1.in the West Australian Newspaper on 7 September 2019 and 14 September 2019, 28 September 2019, and 5 October 2019; and
2.in the Sunday Times Newspaper on 15 September 2019, 13 October 2019, 20 October 2019, 27 October 2019, 3 November 2019, 10 November 2019, 17 November 2019, and 24 November 2019.[59]
[59] Plaintiff's Grounds [21], admitted in the equivalent paragraph of the Defence.
Mr Healy admits this.[60] The advertisements themselves bear this out.[61] They are expressly directed to homeowners.
[60] Defence [21].
[61] See the Affidavit of Elizabeth McCrone filed 22 October 2020 (McCrone Affidavit).
Mr Healy claims that:[62]
the marketing was part of the Manufacturing and Distribution awareness campaign. The Advertising was at arm's length with Inquiries being directed to Retailers for direct contact with consumers. The adverts directed consumers to 'Accredited Installers in your area'.
… the advertising was designed to generate inquiries for independent Retailers to deal directly with consumers.
[62] Defence [20] - [21] (capitalisation in original). Mr Healy had previously included this in a sworn affidavit titled 'Affidavit in Opposition to Plaintiff's Originating Motion' filed 24 November 2020. In submissions filed after that affidavit was filed, but before the Defence was filed, Mr Healy appeared to accept that the advertisements would generate enquiries to him, but asserted that his intention was to pass those leads on to contractors - see Defendant's Outline of Submissions filed 19 January 2021 (Defendant's Submissions) [33].
The Commissioner does not accept that this was his intention.
Contrary to Mr Healy's claim, the advertisements do not direct consumers to 'Accredited Installers in your area'. They say, among other things:
1.'Call us today to upgrade your exisiting [sic] solar power system ...' (and the email address and phone number of R.E.A.C.T.AIR is listed) and 'Accredited Solar Installers are in your area'.[63]
2.'Free home assessment! Using Google Maps we will assess your home and provide a comprehensive range of options'.[64] (Mr Healy said he did this.[65])
3.'Air conditioning to every room in your home, everyday, for only $1 a day! Ask us how today' (and to the right of this is the name R.E.A.C.T.AIR) and 'Call us today on 1300 229 893 for your free home assessment'.[66]
[63] McCrone Affidavit page 6.
[64] McCrone Affidavit page 8.
[65] ts 279.
[66] McCrone Affidavit page 16.
In all of the advertisements, the only contact number provided was the telephone number of R.E.A.C.T.AIR. In those advertisements that included a website and email address, the website and email address were those of R.E.A.C.T.AIR.[67]
[67] This was not in dispute. Mr Healy confirmed this at ts 278 - 279.
In cross-examination, Mr Healy was asked to identify the independent retailers for whom he claimed to be generating leads. This exchange occurred:[68]
[68] ts 180 - 182.
Who were the independent retailers?---Well, I never found any. I gave I paid - any leads came through - went to them - nothing ever eventuated.
So when you started the advertising, you didn't have any independent retailers?---Well, I visited a few, yes. I made contacts with a few.
You didn't have any agreements with any independent retailers, did you?---No. You don't have - you don't have written agreements with retailers. You just have retailers that become authorised. In the ‑ ‑ ‑
You didn't have any authorised retailers, did you? You had no arrangement with anyone, did you?---No, no. No.
No?---Is - it was - the last 40 years, I've had very large numbers of retailers which were authorised, but nothing in writing - nothing signed. They're not ‑ ‑ ‑
In - - - ?--- - - - on franchises. They're just - they're just agreements. They're just verbal agreements.
You didn't have any verbal agreement with any independent retailer, did you?---I'm not quite sure (indistinct) I passed leads onto them, and they didn't go anywhere.
What leads do you pass on?---Whatever leads I got from advertising.
Well, what were they?---They were leads for air-conditioning.
What, ones you gave away?---Sorry, I'm a little bit confused here.
…
You agreed to pay about $25,000 a month at one stage, didn't you, for advertising?---Yes, that's right.
And this was to generate leads for other people, was it?---Well, the advertising - adverts all say 'solar retailers in your area'.
Well, did you have solar retailers in the area?---Of course. Of course. I passed them on. I didn't say ‑
To who?---To retailers.
Who?---Air-conditioning companies.
Give me a name. Any name?---Look, I haven't got the information in front of me right now.
This evidence was implausible.
In cross-examination, Mr Healy claimed that 'the inference is that the - we're the manufacturer and the accredited installers in your area will come and do your quote and do your installation for you'.[69] No such inference arises from the advertisements. Further, this claim is difficult to reconcile with Mr Healy's admission that the subsequent advertising he did in December/January was substantively the same, despite his admitted intention to deal directly with consumers who responded to that advertising.[70]
[69] ts 187.
[70] ts 282.
Mr Healy was taken to an email he had sent on 11 October 2019 to Concept Marketing. He had written that:[71]
Last week's air conditioning advert delivered the worst result with only six inquiries NONE of which resulted in immediate sales.
[71] Affidavit of Mark da Silva filed 23 October 2020 (Da Silva Affidavit) page 25 (capitalisation in original).
In cross-examination of Mr Healy, this exchange occurred:[72]
You had followed up those inquiries, hadn't you?---When you say they were followed up you mean followed up where?
There were only six inquiries, none of which resulted in immediate sales?---Yes.
You followed up those inquiries, didn't you?---With who? With whom?
With the people who made the inquiries?---No.
No. And so - - -?---I don't think so.
- - -how do you know there was no sales?---Well, it's quite easy. There's no sales in my sales book, is there? The sales went nowhere.
Well, how did you find that out?---Well, I must have rung the installers involved.
Who were they?---Look, I don't have the information in front me.
[72] ts 189.
This evidence was implausible.[73]
[73] See also ts 191 - 192.
Mr Healy was also asked to explain having written in the email what appeared to be a plan to 'bait and switch' consumers. He had written:[74]
The Advert I submitted lists Cooling Only and Cooling & Heating. The reader will assume the Cooling & Heading is Refrigerated as they are unaware that we manufacture a Renewable Energy Cooling & Heating product. The price for a Refrigerated Cooling & Heating product is around $2000 higher than listed. We will forward a quote after assessing their home using Google Maps listing the alternatives as attached.
Our task will be to up sell to our concept.
[74] Da Silva Affidavit page 25 (capitalisation and emphasis in original).
Mr Healy admitted (eventually) that the advertisements would lead consumers to believe that the product being offered was refrigerated air-conditioning, at a much lower price than refrigerated air‑conditioning costs. This is because the advertisements referred to heating, as well as cooling, and there is a perception in the marketplace that evaporative air-conditioning is cooling only.[75]
[75] ts 190 - 191.
Mr Healy agreed that the advertising would attract inquiries and then he would upsell to the concept he wanted the consumer to buy. Mr Healy said '[i]t's what you call switch selling'.[76]
[76] ts 192.
Despite that answer, Mr Healy then denied it was 'bait and switch' selling. He said the advertisements were offering consumers what they wanted and offering them alternatives. He was asked if he had any refrigerated systems to sell. He said he did. By that, he meant that, if a customer wanted a refrigerated system, Mr Healy would buy it from a retailer in Perth and sell it to the customer.[77]
[77] ts 192 - 193.
Mr Healy was also taken to an email he had sent on 2 June 2020 to the Commissioner.[78] In that email, he said that he believed that the ban period expired in July 2019. He wrote that:
We commenced Advertising in October 2019 with the belief that the ban period had expired. Had I been aware of the error in calculating the expiry date, we would have sold our systems through retailers.
[78] Exhibit 13.
As I have said, I do not accept Mr Healy's evidence unless it was against his interest or independently corroborated. I do not accept that the advertising was designed to generate inquiries for independent retailers to deal directly with consumers.
First, the advertisements were the initial step in the offering for retail sale of air-conditioning systems for personal, household, and domestic use. There is nothing in the advertisements to suggest that it was intended, or even contemplated, that consumers would contact anyone other than R.E.A.C.T.AIR. Nor does an inference arise from the advertising that an accredited installer would attend the consumer's home and give the quote.
Second, the email Mr Healy sent to Concept Marketing suggested that Mr Healy was concerned about his personal interest as a retailer.
Third, in his email to the Commissioner on 2 June 2020, Mr Healy effectively admitted that he had been advertising in his personal capacity (that is, as a retailer) in October 2019.
I am satisfied that, in causing the advertisements to be published in the West Australian Newspaper and the Sunday Times Newspaper in September, October and November, Mr Healy breached the Third Undertaking.

Inadvertent breach?

Mr Healy admits entering into agreements to sell air-conditioning units to the Customers before the Third Undertaking expired. He claims he mistakenly believed it expired in April 2019, not July 2020.

The Commissioner does not need to prove that Mr Healy intentionally breached the undertaking. Nevertheless, whether or not he did may be relevant to the appropriate relief.
Mr Healy claimed he had looked through his records and 'found a document that showed the undertaking was - had expired on 14 April 2019'.[79] Mr Healy said he had thought that the expiry date was 10 years from 2009 and, when he found this document, he wrongly assumed this was the expiry date.[80] Mr Healy said he had not looked through all of his files. He said he just looked until he found this document.[81] It later emerged that 'all of his files' comprised, by that time, only two lever arch files.[82]
[79] ts 167.
[80] ts 168. See also Defence [1(b)].
[81] ts 168.
[82] ts 170.
Later, Mr Healy said the document on which he had relied was a consent order. He produced it while being cross-examined. The document was an unsigned document titled 'Plaintiff's memorandum of consent orders'. It had numerous handwritten notations and changes marked on it. Mr Healy said he believed he had signed another copy of it, but said he did not have a copy of a signed version. He said:[83]
That was given to me by the solicitor at Consumer Protection. We changed a couple days and dates and I believe we had it signed. When I went back through my files, I found that particular undertaking and I took that as being the one that was expiring. That was the last undertaking.
[83] ts 274.
Mr Healy said the handwriting was his. He said he believed he had faxed his marked up copy to the department.[84]
[84] ts 274. See also ts 321.
As I have said, I do not accept Mr Healy's evidence unless it was against his interest or independently corroborated. Having regard to the handwritten notations on the document, and the fact is in unsigned, I do not accept that Mr Healy could have thought this was a record of an undertaking he had given.
In addition, this claimed belief is inconsistent with Mr Healy's email to the Commissioner in which he said he believed that the ban period expired in July 2019.[85]
[85] Exhibit 13.
Further, on Mr Healy's evidence, he retained only two lever arch files of documents, and those files included all of the undertakings he had signed. It is inherently improbable that, if he did not want to breach the undertaking, he would not have flipped through all of the documents in those two files before embarking on retail sales.
Having regard to all of the evidence, I am satisfied that Mr Healy knew that the Third Undertaking did not expire until July 2020.

The contacts with the Customers

November 2019

The air-conditioning system Mr Healy was selling needed a base, a partition and a lid. Mr Healy described these components as part of the casing for the units:[86]
The r.e.a.c.t.Air Cool Heat casing consists of three large sheets of ABS Plastic Sheets that are formed into shape by way of a Specialised Vacuum Forming Machine. The three Sheets were identified by the Base, Partition (Inner Lid) and the Lid (Outer Lid). In Western Australia, to the Defendants [sic] knowledge, there are only two Manufacturers that have Vacuum Forming Machines large enough to Vacuum Form the ABS Sheets of Plastic. The two manufacturers are Polytech Plastics Jandakot (Polytech) and BCJ Plastics Kewdale (BCJ).
[86] Exhibit 10.2 [1] (capitalisation in original).
In November 2019, Mr Healy made inquiries about getting the partitions, bases and lids formed for his air-conditioning units. He was told by BCJ that they would not be able to do the work before they closed for the year.[87]
[87] Exhibit 12 page 14.
It appears that, in late November 2019, Mr Healy sold an air‑conditioning system to a Mr Miller. Mr Healy received a deposit from Mr Miller on 29 November 2019.[88] Mr Miller was not one of the Customers.

December 2019

[88] Exhibit 7.1 and ts 95 - 196.

On 2 December 2019, Mr Healy asked BCJ if he could book his work in for 6 January 2020.[89]
[89] Exhibit 12 page 17.
On 5 December 2019, Mr Healy made a part payment of $6,000 to Flight Plastics. This was the company which was to provide him with the plastic to make the lids, bases and partitions. He was only able to pay that amount because he had received a payment from Mr Miller.[90]
[90] ts 198.
In cross-examination, the Commissioner put Mr Healy's bank account records to him. Mr Healy confirmed he had a single bank account for his personal and business use. The records showed that Mr Healy's bank balance remained modest. When relatively large sums of money were required to be paid to the entities who were supplying or forming parts or materials for their work, Mr Healy was unable to pay these amounts until a customer paid him a deposit.
On 6 December 2019, Mr Healy was told by BCJ that they would probably not be able to start before 19 January 2020.[91] Mr Healy claims that this meant he would get 'the Lid' around 9 February 2020.[92]
[91] Exhibit 12 page 18 and ts 204.
[92] Exhibit 10.2 [5].
I do not accept this. Plainly, from the email referred to earlier, Mr Healy needed much more than just a lid. Further, it is inconsistent with the subsequent emails (discussed later) between Mr Healy and Polytech Plastics (Polytech) and, later still, between Mr Healy and BCJ. Those emails show that the work required went well beyond simply forming sheets from moulds. As will be seen, the moulds themselves were deficient and required repair work.
Mr Healy claims that, after getting this email from BCJ, he then contacted Polytech and was given a more favourable estimate of time. He says he believed that he would get the sheets from Polytech about 9 January.[93] I do not accept he was told this or could have believed this. It is inconsistent with the emails between Mr Healy and Polytech that commenced on 11 December (discussed later). For example, his emails on 13 December and 15 January indicated that Polytech was going to first attempt to form a single partition so that Mr Healy could test it. For the same reason, I do not accept Mr Healy's claim[94] that Polytech agreed to deliver 35 sets of bases, partitions and lids during early January. This claim is inconsistent with the emails between them.
[93] Exhibit 10.2 [6].
[94] Exhibit 10.2 [7].
On 8 December 2019, Mr Healy offered to sell to Mrs Patricia Surtees, and supply her with, an air-conditioning system for her home.[95]
[95] Plaintiff's Grounds [22], admitted in the equivalent paragraph of the Defence.
Mrs Surtees told Mr Healy that she wanted it installed before Christmas. Mr Healy said that could be done.[96] However, once Mrs Surtees indicated she wanted to go ahead with the contract, Mr Healy told her that he had other customers who did not having working air-conditioning, and, since the Surtees did, he would prefer to do their jobs before the Surtees' job. Mr Healy told her that one of his customers without air-conditioning was a single mother with three children and that they were finding it very difficult to manage in the heat. On that basis, the Surtees agreed that early January would do.[97]
[96] ts 59 - 60.
[97] ts 60.
Consistently with this, the contract document said 'Install Date Preference Late December. Alternative Date Mid January - To be confirmed'.[98] It did not guarantee an installation date. In addition, it said that:[99]
The scheduled installation date may be delayed by inclement weather conditions, unavailability of tradespersons to [complete] the Contract, unavailability of air-conditioning units and/or componentry. Such delays may occur just prior to the scheduled installation date. Every effort will be made to keep you fully informed if such a delay occurs.
[98] Exhibit 6.2, annexures to the affidavit of Patricia Avis Surtees filed 22 October 2020 (Surtees Affidavit) page 12 and ts 76 (capitalisation in original).
[99] Exhibit 6.2, annexures to the Surtees Affidavit, page 13 and ts 78.
In cross-examination, Mr Healy put to Mrs Surtees that he had not told her that one of his customers was a single mother. Mrs Surtees was adamant that he had. She recalled it very clearly due to two conversations she had later, one with her husband and the other with a friend.[100] I will give more detail of this when later explaining why I accept Mrs Surtees' evidence.
[100] ts 85 - 86.
On 9 December 2019, Mr Healy:
1.offered to sell to Mr Barry Woods, and supply him with, an air‑conditioning system for his home;
2.quoted Mr Woods the sum of $6,980 as the price for the sale, supply, and installation of an air-conditioning system in Mr Woods' home; and
3.accepted the sum of $3,250 from Mr Woods as a deposit for this.[101]
[101] Plaintiff's Grounds [23], admitted in the equivalent paragraph of the Defence.
At the time of taking this deposit from Mr Woods, Mr Healy did not have the parts he needed to install the unit.[102] Nor did he have any reason to think that he would have those parts in the near future. He knew that BCJ could not start work until the third week of January. He did not know when Polytech could start work.
[102] ts 198.
In my view, in the absence of an agreed period, it would ordinarily be reasonable to take up to two weeks to install an air-conditioning unit. Over the Christmas period, it might be reasonable to take perhaps three weeks to allow for some days when work would not be done. If the weather was so extreme that work could not be done on some days, and a backlog of jobs created a flow-on delay, it also might be reasonable to take perhaps three weeks. As at 9 December 2019, there were reasonable grounds for believing that Mr Healy would not be able to install the unit within eight weeks, and probably longer. I am satisfied that Mr Healy knew of those grounds.
On 10 December 2019, Mr Healy issued Mrs Surtees with an invoice in the sum of $2,600, being a deposit for the sale, supply, and installation of an air-conditioning system in her home. On 11 December 2019, Mr Healy accepted the sum of $2,600 from Mrs Surtees as a deposit for this.[103]
[103] Plaintiff's Grounds [24] - [25], admitted in the equivalent paragraphs of the Defence.
At the time of taking this deposit from Mrs Surtees, Mr Healy did not have the parts he needed to install the unit.[104] Nor did he have any reason to think that he would have those parts in the near future. Again, he knew that BCJ could not start work until the third week of January. He did not know when Polytech could start work. As at this date, there were reasonable grounds for believing that he would not be able to install the unit within eight weeks. This was long after the latest time he had indicated to Mrs Surtees (mid-January) and was not within a reasonable time. I am satisfied that Mr Healy knew of those grounds.
[104] ts 198.
The same day he accepted the deposit from Mrs Surtees, Mr Healy emailed Polytech, having deciding to switch from BCJ. It is apparent that Polytech required payment up front.[105] It also seems that the moulds Mr Healy supplied first to BCJ and then to Polytech were of poor quality.[106]
[105] See exhibit 10.2 annexure A pages 5 - 6.
[106] See, in relation to earlier in the year, exhibit 12 pages 2, 7. In relation to later, see exhibit 10.2 annexure A pages 4, 7, 15, 19.
On 11 December 2019, Mr Healy made another payment to Flight Plastics, this time of $1,450.30.[107] He agreed that he was only able to pay that amount because he had received a payment from Mr Woods.[108]
[107] Exhibit 7.1.
[108] ts 198.
On 13 December 2019, Mr Healy emailed Polytech to ask when they were going to 'pull the Partition Mould'.[109] Plainly, Mr Healy did not know as at this date when the partitions would be formed.
[109] Exhibit 10.2 annexure page 6.
In his evidence, Mr Healy claimed that he believed the lids were 'only a couple of days away' throughout December 2019 through to April 2020. He said that it was only in April that he reached the view that they would be further delayed.[110] Even if I considered him to be a credible witness (which I do not), I would not have accepted that he had that belief given the sequence of events outlined above and below. In any event, such a belief would have been plainly unreasonable. Mr Healy was told on a number of occasions that the moulds were deficient and that money was required before products would be released. If Polytech and BCJ repeatedly failed to meet time estimates as Mr Healy claims, then, after they had done this more than once, he must have known, or ought to have known, that any time estimates from them could not be relied upon.
[110] ts 285.
On 20 December 2019, Mrs Surtees emailed Mr Healy to find out when the system was going to be installed. Mr Healy replied:[111]
The unexpected Hot Weather we have experienced over December have blown Install Dates by an extra 7 working Days. The install teams are exhausted with Temperatures over 35 Deg causing all sorts of Heat Stress within each team. Around 7 days were cancelled altogether.
Yesterday, we received an upgrade. The Teams finish today until Monday 6th January and your install has been scheduled for Thursday 9th January. I will confirm the day and Time when they report back on the 6th.
[111] Exhibit 6.2 page 39 (capitalisation in original).
At the time of sending this email, Mr Healy still did not have the bases, lids or partitions for the air-conditioning unit. Despite this, Mr Healy did not concede under cross-examination that the email was misleading.[112] It plainly was.

January 2020

[112] ts 213 - 215.

As a result of Mr Healy's email to her, Mrs Surtees was expecting her unit to be installed on 9 January. That did not happen.
Instead, Mr Healy entered into an agreement with Mr Shelton on that day to supply him with an air-conditioning unit.[113] Mr Healy also agreed to accept the sum of $6,480 from Mr Shelton as payment for the sale, supply, and installation of an air-conditioning system in Mr Shelton's home. On 10 January 2020, Mr Healy accepted the sum of $6,480 from Mr Shelton as payment for this.[114]
[113] Plaintiff's Grounds [26], admitted in the equivalent paragraph of the Defence.
[114] Plaintiff's Grounds [27] - [28], admitted in the equivalent paragraphs of the Defence.
As noted earlier, as at 13 December 2020, Mr Healy did not know when Polytech would be able to form the partitions. Mr Healy gave evidence that he made daily calls to Polytech in late December and early January seeking updates. He says he was told about delays. On his evidence, the next event was his email to Polytech on 15 January 2020, after he had taken Mr Shelton's deposit.[115]
[115] Exhibit 10.2 [9] - [10].
As at the time of taking Mr Shelton's deposit, Mr Healy did not have the parts he needed to install the unit.[116] I am satisfied that he did not have any reason to think that he would have those parts in the near future. He did not know when Polytech could start work. He was being told about delays (apparently on a daily basis). There were reasonable grounds for believing that he would not be able to install the unit within four weeks. I am satisfied that Mr Healy knew of those grounds.
[116] ts 198.
Mr Shelton said that, prior to meeting Mr Healy, he had a fully functioning reverse cycle air conditioner. However, the system Mr Healy advertised appealed to him as it was evaporative and would allow him to keep his doors open. Mr Shelton said he liked to have his house open as he had a lot of trouble breathing.[117]
[117] ts 19.
Mr Shelton said that, after he had paid Mr Healy, he expected the system to be installed within a week or so, or some work done, or some explanation as to why work was not being done. He said that over several weeks, he 'got no answer at all from Mr Healy, except excuses and no answers to phones and a variety of missed messages'.[118]
[118] ts 21.
Mr Shelton said the excuses included '[m]y men can't work in the heat', '[m]y men need retraining', '[t]he wrong part came from the factory', and '[i]t was the wrong colour'.[119] He said Mr Healy would usually make those excuses to him by phone message after several phone calls from him to Mr Healy.[120] Mr Healy did not deny making these statements.[121]
[119] ts 22.
[120] ts 22.
[121] ts 258 - 259.
In cross-examination, Mr Shelton agreed that Mr Healy had not given him a fixed installation date. He agreed that the contract did not state a date either. Mr Shelton agreed that the terms of the contract included the term:[122]
The scheduled installation date may be delayed by inclement weather conditions, unavailability of tradespersons to [complete] the Contract, unavailability of air-conditioning units and/or componentry. Such delays may occur just prior to the scheduled installation date. Every effort will be made to keep you fully informed if such a delay occurs.
[122] ts 23 - 24.
Mr Shelton agreed that Mr Healy had indicated that the system would be installed in 'two to three - maybe four' weeks, depending on the 'availability of tradesmen, weather, etcetera'.[123]
[123] ts 32.
Mr Shelton agreed there had been a lot of hot days in the period following him entering into the contract.[124] He agreed that, because he had a fully functioning air conditioner already, he was comfortable despite the hot weather and Mr Healy's delay.[125]
[124] ts 24.
[125] ts 26.
In cross-examination, Mr Shelton confirmed that, after multiple phone calls to Mr Healy, Mr Healy eventually told him that the system would be installed on 5 February 2020.[126]
[126] ts 28. See also ts 256.
On 15 January 2020, six days after Mr Shelton's payment, Mr Healy emailed Polytech. It appears that the partition mould was unfit for purpose and required further repair. It appears that new moulds were required for the base and lid.[127] Polytech advised him that no work would be done until he paid them what he owed them.[128] Mr Healy admitted that, as at this date, he did not have any bases or lids and did not have an acceptable partition. He admitted that, without any of those, he could not put together an air-conditioning system.[129]
[127] Exhibit 10.2 annexure A page 7.
[128] Exhibit 10.2 annexure A page 8.
[129] ts 206.
Meanwhile, Mrs Surtees had been trying to contact Mr Healy to find out why her unit had not been installed on 9 January as promised. She gave evidence that she kept leaving phone messages and text messages, with no response from Mr Healy.[130] On 16 January 2020, Mrs Surtees emailed Mr Healy:[131]
Since you didn't call back and no one has turned up today, I assume our job will be done next Monday?
At this stage we are so fed up and so close to our holiday that if it is not happening on Monday, could you please return our deposit.
[130] ts 61.
[131] Exhibit 6.2, annexures to the Surtees Affidavit, page 39.
Mr Healy replied the same day (17 January Email):[132]
[132] Exhibit 6.2, annexures to the Surtees Affidavit, page 38 (capitalisation and emphasis in original).
When the Purchase Contract was drawn up I advised the Lead time of 2 to 3 weeks from Funds Receipt to install Which was the lead Time at that time. The Funds were received into our account on Tuesday 17 December.
During December the Extreme Heat period resulted in a two Week delay in installs as the installers cannot work inside the roof space once the temperature exceeded 34 deg C ( Roof Space 52 deg C ).
The Xmas Break of 2 weeks plus the scheduled holidays extended your original install date from 7 th January to Tuesday 21st January.
During late December and Early January we were not happy with the feed back from [our] Sub Contract Installers so we decided to explore the possibility of Employing an Experienced team where we have complete control. E [sic] made applications to the employment agency on 19 December.
During early January we engaged another Install team who initially confirmed Monday 20 st [sic] January. Earlier this week they put it back.
Today we Interviewed an experienced Air Conditioning Installer and expect to appoint him early next week. We will now be in a position to negotiate with each customer on a particular Install Day which we have been unable to do with Sub Contract installers.
I have discussed your email with our partners and they have concluded that these delays were beyond our direct control. Next Tuesday is the revised install day when you include the weather and the Xmas break.
My partners have also concluded that we have not been able to satisfactorily satisfy your expectations. Accordingly they have suggested
A.We arrange a specific Install Date with you after your Holiday Break during February.
B.We will guarantee that install date and complete the install during the scheduled date.
C.As compensation for the future delay we offer to reduce the Contract Price by $400 to $4,800.
In the meantime we have 4 other customers with Contracts dating back to mid December where we can supervise the installs. By the agreed install date with you, our team would have installed around 15 systems. I will personally supervise your install.
We trust that this email will be considered favourably.

A number of the statements in this email were misleading. In cross‑examination, Mr Healy said that by 'partners', he meant people who had lent him money and who he refused to name. Mr Healy said that, in the email, 'I'm not talking about a partner as far as legal terminology is concerned. I'm talking about partners as far as friends'.[133] Mr Healy's evidence as to why he had written in this email that he had had discussions with his partners was fluid and implausible.[134] I am satisfied that Mr Healy referred to partners in this email to mislead Mrs Surtees into thinking he was more than a one man business.
[133] ts 221 - 222.
[134] ts 221 - 224, 225, 229 - 230. This is discussed later, in discussing Mr Healy as a witness.
Mr Healy said that by 'we', he meant 'I'.[135] I am satisfied he did this for the same reason.
[135] ts 223 - 224.
In cross examination, Mr Healy was asked about his statement in the 17 January Email that 'During late December and Early January we were not happy with the feed back from [our] Sub Contract Installers'. Mr Healy agreed that he had not used any subcontractors in December. It was put to him that there was therefore no feedback from subcontractors. Mr Healy said 'Well, the feedback was there was delays'. He said that he would book dates for installations and then, closer to the booked date, the installation would be postponed.[136]
[136] ts 220.
Mr Healy also gave evidence about engaging his own installers. His evidence as to these alleged installers was fluid and implausible.[137] I do not accept it. The evidence of the installations that Mr Healy carried out suggests that Mr Healy simply engaged a handyman to help him install the units as and when he was able to obtain the necessary parts. As will be later discussed, the handyman was a man called Kevin.
[137] See, for example, ts 147 - 148, 220 - 221, 230 - 232, 252 - 253.
Mr Healy continued to make misleading statements after sending the 17 January Email. Although these statements were made later in the sequence, it is convenient to mention some examples here. In two other emails to Mrs Surtees, Mr Healy again referred to advising his partners or meeting with his partners.[138] Mr Healy also appeared to accept that he had represented to Mr Shelton's daughter that he had 'silent partners'.[139] I am satisfied these statements were entirely false. In another email to Mrs Surtees, Mr Healy had claimed to have been told something by 'my accounts lady'.[140] He did not have an accounts lady.[141] In several other emails, Mr Healy referred to himself in the third person, to give the impression that he was more than a one-man business.[142]
[138] Exhibit 6.2, annexures to the Surtees Affidavit, page 42, 47.
[139] ts 97 - 98.
[140] Exhibit 6.2, annexures to the Surtees Affidavit, page 33.
[141] ts 212.
[142] See, for example, Exhibit 6.2, annexures to the Surtees Affidavit, page 55 ('Our Email'), page 57 (multiple uses of 'we')
As Mr and Mrs Surtees were going to be away until 10 March 2020, they agreed to accept the offered discount and agreed that the system would be installed on 12 March 2020.[143]
[143] Exhibit 6.2, annexures to the Surtees Affidavit, page 42.
On Friday 17 January 2020, Mr Healy paid Polytech the money it had demanded, on the basis that Polytech work on producing five sets until they were finished.[144] Polytech said that, if all went well, it should be achievable by Thursday (23 January).[145]
[144] Or at least most of it. Exhibit 7.1 shows a transfer of $4,700 on that date. An email from Mr Healy asserts that $300 had been transferred on 13 December 2020 (see exhibit 10.2 page 10), but this is not shown in the bank records (see exhibit 7.1).
[145] Exhibit 10.2 annexure A page 9.
On 20 January 2020, Mr Healy emailed Mrs Surtees to confirm that her system would be installed on 12 March 2020. He also claimed:[146]
Today we also finalised the Install Team with 2 mature Installers with experience in Air Conditioning Installations commencing this week for further training on our unique systems with the view of installations commencing on Tuesday next (after the Australia Day Holiday). We are now in complete control of all installs.
[146] Exhibit 6.2, annexures to the Surtees Affidavit, page 47.
On 22 January 2020, Mr Healy agreed to accept the sum of $7,200 from Mr and Mrs Gibbons as payment for the sale, supply, and installation of an air-conditioning system in Mr and Mrs Gibbons' home. On 23 January 2020, the deposit of $3,600 was paid into a bank account.[147]
[147] Plaintiff's Grounds [29A] - [29B], admitted in the equivalent paragraphs of the Defence.
Mr Gibbons' evidence was to the effect that Mr Healy told him that the installation would happen as soon as there was an available time, which was anticipated to be in February.[148]
[148] ts 36.
As at the time of taking Mr and Mrs Gibbons' deposit, Mr Healy did not have the parts he needed to install the unit. However, unlike the position with the other Customers, I am not satisfied that Mr Healy knew or ought to have known that he would not have those parts in the near future. The email from Polytech on 17 January 2020 provided a basis for believing he might.

February 2020

On 3 February 2020, Mr Healy emailed Polytech, saying he needed a base that day. It appears that Polytech did not reply until 7 February.[149]
[149] Exhibit 10.2 annexure A page 11.
Meanwhile, on 5 February 2020, Mr Shelton was expecting his system to be installed. Mr Shelton said that he had been home all day on 5 February, and no one from R.E.A.C.T.AIR came to install the air conditioner. Mr Shelton said that he had called R.E.A.C.T.AIR numerous times to find out what was happening. He said he did not hear from anyone from R.E.A.C.T.AIR, or get any phone calls to say that they would not be coming.[150]
[150] ts 28.
Mr Healy put to Mr Shelton that he (Mr Healy) had in fact rung him on 5 February. Mr Healy's phone had recorded that Mr Shelton had rung him at 9.30 am, 9.49 am, 10.08 am and 10.25 am, and that Mr Healy had rung back at 10.26 am.[151]
[151] Exhibit 11 and ts 255 - 257.
Mr Healy put to Mr Shelton all of the calls between them that had been recorded on Mr Healy's phone throughout the period of time in which they were communicating. Mr Shelton agreed that Mr Healy had returned his call nearly every time. However, Mr Shelton said that this was with spurious excuses.[152]
[152] ts 31.
In early February, Mr Shelton's daughter contacted Mr Healy, posing as a potential customer. She did this in an effort to get a meeting with Mr Healy. A meeting was arranged for the following week, but Ms Shelton needed to postpone it for a week.
On 7 February, Polytech advised Mr Healy that they had a 'very good first unit but a lot of your filler putty has fallen out'. Polytech said this would take a couple of days to repair, and asked him if he wanted them to do that.[153] The part being referred to was a base.[154]
[153] Exhibit 10.2 annexure A page 11.
[154] ts 207.
It seems that on a date between about 9 and 12 February, Mr Healy installed Mr Miller's system.[155] I infer that the single base that Polytech had produced as at this date was used for Mr Miller's system.
[155] See ts 232 and Exhibit 7.1 showing what appears to be the final payment from Mr Miller on 12 February. Mr Healy later sought to assert the payment was late (see ts 250 - 253) but I do not accept his evidence.
On 13 February, Mr Healy told Mr Woods that he would start work on installing his air-conditioning unit if Mr Woods paid the balance owing in cash.[156] I infer that, subject to being able to pay for them, Mr Healy was able to access bases and partitions around this time (or rather that he was able to access at least one of each, sufficient to allow him to install Mr Woods' unit).
[156]Affidavit of Alwyn Robert Healy in Opposition to the Affidavit of Barry William Woods filed 24 November 2020 (Defendant's Woods Response Affidavit) [19] (read with the Woods Affidavit [19]) and ts 246 - 247.
The Commissioner alleges that, between 15 February 2020 and 18 February 2020, Mr Healy partially installed, or caused his agents to partially install, an air-conditioning system in Mr Woods' home.[157]
[157] Plaintiff's Grounds [33].
The Commissioner alleges that the air-conditioning system installed in Mr Woods' home was incomplete, as:[158]
1.the external unit of the system did not have a lid; and
2.the system did not have a heating component.
[158] Plaintiff's Grounds [34].
Mr Healy admits that the external lid was not installed, claiming that the delay was caused by the lid manufacturer.[159] Mr Healy admits that the customer cannot use the heating function without the external lid.[160] However, he asserts that the lack of the external lid did not mean that the installation was incomplete. He asserts that it was 'Practically Completed', even though the external lid had not been installed and the customer could not use the heating function.[161]
[159] Defence [33].
[160] Affidavit of Alwyn Robert Healy in Opposition to the Affidavit of Patricia Avis Surtees, filed 24 November 2020 (Defendant's Surtees Response Affidavit) [42]. See also Defendant's Woods Response Affidavit [44].
[161] Defence [33] - [34].
On 18 February 2020, Mr Healy accepted the sum of $3,250 in cash from Mr Woods as further payment for the sale, supply, and installation of an air-conditioning system in Mr Woods' home.[162]
[162] Plaintiff's Grounds [29], admitted in the equivalent paragraphs of the Defence.
Mr Healy admits that, on 21 February 2020, Mr Shelton terminated the contract with him, as he had not installed an air‑conditioning system in Mr Shelton's home by that date. Mr Healy admits that Mr Shelton demanded a refund.[163]
[163] Defence [35]. See also ts 24 and 32.
It appears that Ms Shelton and Mr Healy met on this date. It appears to be common ground that Ms Shelton also asked Mr Healy to give her father his money back.[164]
[164] See, for example, ts 95 - 96.
On 24 February 2020, Mr Healy emailed Polytech. In the bundle of emails tendered by Mr Healy, there were no emails between the email of 7 February (discussed above) and the email of 24 February. Mr Healy did not explain what was discussed in the interim. However, his email of 24 February appears to be addressing a concern that I would infer had been raised by Polytech. It appears Polytech thought that the sheets for the lids were too short for the mould.[165]
[165] Exhibit 10.2 annexure A page 12 (see the paragraph beginning 'Yes', and the email from Polytech below).
Mr Healy admits that he did not install an air-conditioning system in Mr Shelton's home.[166] He also admits[167] that, as at 27 March 2020, Mr Shelton had not received a refund from him. He submitted, however, that Mr Shelton 'is being refunded'.[168] As will be seen, Mr Shelton later obtained judgment against Mr Healy in the Magistrates Court.

March 2020

[166] Defence [30] and [35] - [36].

[167] Defence [36].

[168] Defendant's Submissions [79].

Between 25 February 2020 and 4 March 2020, Mr Healy partially installed, or caused his agents to partially install, an air-conditioning system in Mr and Mrs Gibbons' home.[169]
[169] Plaintiff's Grounds [30A], admitted in the equivalent paragraph of the Defence.
The Commissioner alleges that the air-conditioning system installed in Mr and Mrs Gibbons' home was incomplete, as:[170]
1.the external unit of the system did not have a cover;
2.the system did not possess a manual heating function;
3.the smoke/weather proofing system and automatic heating system was still to be fitted; and
4.the upgrade to the existing system so as to use four zones was still to be carried out.
[170] Plaintiff's Grounds [30B], admitted in the equivalent paragraph of the Defence.
Mr Healy admits this. He says, however, that the heating system was in place, it just could not be used until the lid was added. He further said that he advised Mr Gibbons in January that the 'Auto system' would be installed in May 2021.[171] In relation to the upgrade issue, Mr Healy said that the upgrade of the zones on the original system was not carried out and, after discussions with Mr Gibbons, '$400 was held against the upgrade'.[172] Mr Gibbons agreed that he paid the balance less $400 because the upgrade work had not been done.[173]
[171] Defence [30B].
[172] Defence [30B].
[173] ts 44 - 45.
On 4 March 2020, Polytech advised Mr Healy that the sheet for the Lid was too short for the mould.[174]
[174] Exhibit 10.2 annexure A page 12.
On 5 March 2020, Mr and Mrs Gibbons made a further payment of $3,200, being the balance less the $400.[175] Over the following months, the Gibbons had a number of significant problems with the system. It is unnecessary to detail all of them.[176] Those of particular relevance will be included below in their chronological place.
[175] Plaintiff's Grounds [30C], admitted in the equivalent paragraph of the Defence.
[176] But see ts 38 - 41, 55 - 57.
Between 12 March 2020 and 21 March 2020, Mr Healy partially installed, or caused his agents to partially install, an air-conditioning system in Mrs Surtees' home.[177]
[177] Plaintiff's Grounds [31].
Mrs Surtees said that a person arrived on 12 March 2020 to begin the installation. She said that her husband had asked that person (who the evidence indicated was a man named Kevin) if he was an experienced installer. Kevin had replied '[w]ell actually I'm a handyman'.[178]
[178] ts 62.
The Commissioner alleges that the air-conditioning system installed in Mrs Surtees' home was incomplete, as:[179]
1.the external unit of the system did not have a lid; and
2.the internal portion of the system was not fitted with four ceiling grilles.
[179] Plaintiff's Grounds [32].
Although Mr Healy disputes that the installation was incomplete, he admits both of those allegations. Mr Healy also admits that the customer cannot use the heating function without the external lid.[180] However, he asserts that this did not mean that the installation was incomplete. He asserts that it was 'Practically Completed'.[181]
[180] Defendant's Surtees Response Affidavit [42].
[181] Defence [31].
Mr Healy asserted that the delay was caused by the lid manufacturer and that he had told the customer that the outer lid was not installed due to delays from the manufacturer of the lid.[182] Mrs Surtees, whose evidence I accept, contradicted this. She said that Mr Healy told her on 12 March that the lid had been made in the wrong colour and so he would need to get another one made.[183] This was plainly untrue.
[182] Defence [31].
[183] ts 63.
In any event, Mr Healy told Mrs Surtees that the lid would be made and he would come and install it the following week.[184] This did not happen.
[184] ts 63.
Mr Healy admits that the four ceiling grilles were not installed.[185] However, he asserts that this was because Mrs Surtees had prevented him from installing them:[186]
32.… On the 14/03/2020 when the Defendant was commissioning the air conditioning system the consumer made a statement to me that she was of the opinion that the Installer was a Drug Addict and/or an Alcoholic and that she did not want him inside her home. I advised the consumer that her assessment was incorrect and defamatory, but she insisted the Installer was not welcomed into her home.
The contract included replacing 4 Faded Ceiling Grilles already installed in the home. The Installer was to replace the grilles the day following the initial install and commissioning of the air conditioner. When the consumer banned the installer from entering the home the Defendant and the consumer agreed that the Defendant would replace the existing grilles when the Defendant returned to fit the External Lid.
[185] Defendant's Surtees Response Affidavit [67], which Mr Healy confirmed (ts 159) intended to refer to paragraph 67 of the Surtees Affidavit.
[186] Defence [32]. See also ts 146.
Mrs Surtees emphatically denied saying that she thought Kevin was a drug addict or an alcoholic. She readily agreed that she had told Mr Healy that she did not really want Kevin in her house, but that was because Kevin was rather scruffy and untidy. She said she had never accused anyone of being a drug addict or an alcoholic, and did not know what such a person would look like.[187] I have no hesitation in accepting her evidence. As I later explain, I found her to be an honest and credible witness. I did not find Mr Healy to be such a witness. In relation to this particular aspect of her evidence, I also note that she appeared to be genuinely outraged at the suggestion she had said this.
[187] ts 83 - 84.
In any event, Mrs Surtees' reluctance to allow Kevin into her home had nothing to do with why the grilles were not installed that day. As later events showed, Mr Healy did not have the grilles at that time.
Having installed the unit without an external lid, Mr Healy put a tarpaulin over it.[188]
[188] ts 64.
On 17 March, Mrs Surtees emailed Mr Healy to advise him that a pipe connection had blown, causing water damage.[189]
[189] Exhibit 6.2, annexures to the Surtees Affidavit, page 53. In his Defendant's Surtees Response Affidavit [43], Mr Healy admitted the pipe connection had burst, but denied it in his evidence - see ts 234.
On Wednesday 18 March 2020, Mr Healy emailed Polytech. In that email, Mr Healy was plainly frustrated by the delay in forming the lids. He asked if he could expect some lids by Friday.[190] Mr Healy said that Polytech told him that COVID-19 commitments had consumed all of its manpower.[191]
[190] Exhibit 10.2 annexure A page 13.
[191] Exhibit 10.2 [18].
On 23 March 2020, Mr Healy said he would attend the Surtees' home the next day to fix the water supply and drop off the four grilles. He said he would fix the grills a few days later when his finger was better.[192] Mr Healy also wrote that the 'enquiries' email address had stopped working the previous Friday.
[192] Exhibit 6.2, annexures to the Surtees Affidavit, page 55.
Mrs Surtees said that, during this period, Mr Healy continued to make excuses about the lid. She said that, on one occasion, Mr Healy had said he was very cross with the person making the lid because he put $437,000 worth of business their way every year.[193]
[193] ts 63 - 64.
In cross-examination, Mr Healy put to Mrs Surtees that he had not said this. Mrs Surtees was adamant that he had. She recalled it very clearly, due to a conversation she had later had with her husband about it.[194] I will give more detail of this when later explaining why I accept Mrs Surtees evidence.
[194] ts 84.
At some stage, the tarpaulin that had been over the unit blew off. Mrs Surtees attempted to contact Mr Healy on multiple occasions to find out if it was safe to use the unit without the tarpaulin on. He did not respond to any of her messages, so the Surtees did not use the unit.[195]

April 2020

[195] ts 64, 87 - 88. Mr Healy's evidence, which I reject, is at ts 141 - 143.

In April 2020, Mr Healy sought to have BCJ make the lids. He asked if they could form six lids within two weeks. BCJ said they could but 'we will not take any responsibility, on how the lids look. Due to inferior moulds seen in the Pics.'[196] BCJ told Mr Healy they required cash on delivery.[197]
[196] Exhibit 10.2 annexure A page 15.
[197] Exhibit 10.2 annexure A page 17.
Mr Healy then liaised with Polytech to get the lid mould from them, so he could get it to BCJ. It appears he collected the lid mould around 17 April.[198]
[198] Exhibit 10.2 annexure A page 17 - 20.
Mr Healy admits that in April 2020 Mr Woods paid another supplier $3,300 to remove the unit installed by Mr Healy and install a new unit.[199]
[199] Defendant's Woods Response Affidavit [43] - [46].
On 20 April 2020, BCJ emailed Mr Healy to advise that the mould would require some 'setup' as 'there is no Vacuum fittings. Just some brocken [sic] Acrylic Pipe outlets'. BCJ also confirmed having advised Mr Healy of other problems with the sheets that would require them to be pre-dried before moulding. BCJ reiterated that they were not responsible for any failings due to the mould supplied.[200] This email was in a bundle of emails tendered by the Commissioner, obtained from BCJ. It was not in the bundle of emails between BCJ and Mr Healy that Mr Healy had annexed to an affidavit.
[200] Exhibit 12 page 29.

Despite having said in this exchange that it was a marketing ploy, Mr Healy later said it was not a marketing ploy. He said it was 'marketing jingo', to '[m]ake the customer feel more … at ease.'[244]
[244] ts 287 - 288.
Second, Mr Healy was evasive and argumentative. I will give some examples.
I earlier noted Mr Healy's claimed inability or refusal to name the retailers to whom he claimed he passed leads and the names of his 'partners'. In cross-examination, Mr Healy was asked to provide the surname of the man he had used to do some of the installation, Kevin. This exchange occurred:[245]
[245] ts 183 - 184.
… What's Kevin's last name?---I couldn't tell you.
You couldn't tell me?---No, I can't tell you. No.
Didn't you work together?---He worked with me for a few weeks, yes.
Only a few weeks?---Yes.
Did you register him as an employee?---He worked for me on a - as a casual - on a casual basis in I think January, February, March.
Did you record him for tax?---No. He operated as a subcontractor.
Did you receive invoices?---No. I just paid him cash.
You paid him cash in hand?---Yes.
You did nothing about tax?---No, he was responsible for the cash.
I see?---He was responsible for the cash, and he was responsible for his own income.
So you paid him cash in hand, and he didn't give you an invoice?‑‑‑No. No. He showed - he gave me an ABN number, I believe. I must have it in my records somewhere.
But you can't remember his name?---No. It's Kevin. Kevin Installer.
Kevin Installer. His last name is 'Installer'?---Yes. In fact, it was - yes, Kevin Installer. Yes.
…
Are you always this dishonest, Mr Healy?---No. Sorry. I - Kevin Installer is on my phone. It was called Kevin Installer.
I am not sure if Mr Healy was being facetious when he first said 'Kevin Installer'. Whether or not he was, I do not accept Mr Healy did not know Kevin's surname. Although he tried to downplay the extent of his relationship with Kevin, it is highly improbable he did not know or could not remember Kevin's surname.
Another example was Mr Healy's evidence when being asked why he had issued an invoice with the number 4371 for what he claimed was the first job he had done in 2019. After a protracted enquiry, it appears that he did this to give the impression that he was a bigger operation than a one man business. The effort required to extract that answer illustrated Mr Healy's evasiveness:[246]
[246] ts 196 - 197.
This is the first contract you sold, isn't it?---I'm not quite sure. It sounds like - maybe - I - I thought it was December, but it looks like it's November.
Can you explain why it starts with the number 4371?---This is 29 November, so I probably didn't receive it till - didn't put in till December. I beg your pardon?
If this was the first contract, can you tell me why it's number 4371?---It's just - it's - it's in the computer, printed out.
This is a new business you started, isn't it?---Yes.
Did you start at number 4371?---Whenever I see a car on the road and it has got mobile number 1, I think to myself, "Why has that person got - running a business with mobile number 1 on their vehicle, when they should be in mobile number 13 and mobile number 14?" This number is just a random number, come from - it just comes from the computer.
It's designed to give a false impression of how many contracts you've entered into, isn't it?---That is not at all. It's a reference number.
Well, to take your example, when it says mobile 1 and you just think to yourself, "Why isn't it mobile 13", why is that?---Well, because it - it makes the person look like he's an individual contractor. The – the idea of marketing is to - to - is to - to be seen as - to be big, not to be small. So whenever I see mobile number 1, I think, "Why didn't he have - have a bit of imagination and call himself mobile number 2 or mobile number 3?" There's no reference, no relevance to anything other than the fact it's an impression.
But you were small, weren't you, Mr Healy?---Of course.
So you wanted to create a false impression, didn't you?---That 4371, it just comes out of nowhere - just a computer.
But the idea of marketing is to be big, not to be small?---No, to be seen - - -
It's what you said?--- - - - big.
To be seen to be big?---That's right.
So that was - you were small. You wanted to create a false impression, isn't that right?---Whatever.
ARCHER J: I beg your pardon?---Whatever. You know, it's a - a computer-generated number from the computer. It's just a number I put in the computer when we print invoices out.
COBBY, MR: Well, let's just deal with that, then. Is it - are you saying that - - -?---Do you - do you think for one minute that I've actually generated 4371 jobs? Do I have to start from 1, do I? What - what's the relevance? You - do you think I should start from 0001 with my first client? That's just a - that's just - that's just nonsensical.
Now, just on that, Mr Healy, are you saying that you entered that number or the computer did it for you?---Something I entered into the computer because what happens is - is that computer there, it's a - a - and I bring the next number up on the computer and print out the invoice. I print out the contract.
Another example of Mr Healy's argumentativeness occurred when it was put to him that, when he received money from the Customers, he had put that money into his personal bank account. He said 'No, it was in the ABN account'. It was put to him that it was in the same account that his pension went into, and he agreed, and agreed that he did not keep a separate business account.[247]
[247] ts 176 - 177.
Another example occurred when it was put to Mr Healy that, when he installed the system on Mrs Surtees house, he did not have the lid:[248]
And when it was installed, you didn't have the lid?---That's right. The decorative lid, yes.
The lid was decorative, was it?---Well, yes. We called it - it's a decorative - our lid, yes. It's - - -
I thought - my understanding was that you couldn't use the heating system without the lid?---Yes. The lid closes the casing off. Yes.
Yes. So it's not decorative then, is it?---Well, we had an inner lid and an outer lid, yes.
So the outer lid is what you require in order to use the heating system, wasn't it?---Well, it covers the whole casing.
The outer lid was what you required in order to use the heating system, wasn't it?---Yes. Yes, it is. Yes.
[248] ts 241.
Another example was Mr Healy's evidence in explaining what he meant by his 'legal team'.[249]
[249] ts 244 - 246.
Other instances of evasive and implausible evidence are referred to in the section headed 'Facts'.
Third, Mr Healy was emphatic even when he was demonstrably wrong. In his cross-examination of Mr Shelton, Mr Healy twice put to Mr Shelton that Mr Shelton had asked Mr Healy to refund his money when Mr Healy went to Mr Shelton's home on 21 February 2020.[250] When Mr Healy was being cross-examined, he denied that Mr Shelton had asked him to refund his money and denied having put that to Mr Shelton. He said, incorrectly, that Mr Shelton had admitted that he had not asked Mr Healy for his money back. Mr Healy's attempts to explain this were implausible.[251]
[250] ts 24 and 32.
[251] ts 261 - 266.
In cross-examination, Mr Healy asked Mrs Surtees to tell him one lie that he had told her. Mrs Surtees said, without hesitation:[252]
Well, the - the first lie you told me was that you had a - a single mother with three children, whose need was greater than ours, and that they had no working air-conditioning, and so you would do their work first. The second lie that you told me was that the work will be completed either before Christmas or in mid - by mid-January. The next lie, if you like, was telling me that you would come and install the unit on 12 March. On 12 March, you knew that you didn't have a completed unit to install. So the lie you told on that day was that it had been manufactured the week before, but in the wrong colour. The next lie you told me was that it would be manufactured the following week. Should I go on?
[252] ts 91.
This was an accurate list.
Mr Healy was neither accurate nor credible. I do not accept his evidence.

Particular factual findings

On the basis of the documentary evidence, the evidence of the witnesses (with the exception of Mr Healy's evidence, which I do not accept) and the sequence of events, I am satisfied of the following particular matters.
First, as the facts revealed, when Mr Healy entered into a contract with each of the Customers, he did not have the necessary parts to enable him to give them what they contracted to buy.
Second, as I explained earlier, when Mr Healy accepted deposits from Mr Woods, Mrs Surtees and Mr Shelton, there were reasonable grounds for believing that he would not be able to install their units within a reasonable time (nor, in the case of Mrs Surtees, by the time agreed). I am satisfied that Mr Healy knew of those grounds. Accordingly, Mr Healy breached s 36(3) on each of these three occasions.
Third, Mr Healy failed to supply each of the four units within a reasonable period.
Mr Woods paid a deposit on 9 December 2019 for a heating and cooling air-conditioning unit. Between 15 and 18 February 2020, Mr Healy installed a system that could not heat. As at the time Mr Woods removed Mr Healy's system, on 14 April 2020, Mr Healy had still not installed the lid that would allow Mr Woods to use the heating function.
Mrs Surtees paid a deposit on 11 December 2019 for a heating and cooling air-conditioning unit. Mr Healy did not install the system before the Surtees went on holidays some time after 20 January 2020. After they returned, between 12 and 21 March 2020, Mr Healy installed a system that could not heat. He also did not install the ceiling grilles. As at the time Mrs Surtees cancelled the contract, on 13 May 2020, Mr Healy had still not installed the lid.
Mr Shelton paid a deposit on 10 January 2020 for a heating and cooling air-conditioning unit. By 21 February 2020, Mr Healy had not installed a system in Mr Shelton's home, and Mr Shelton terminated the contract.
Mr Gibbons paid a deposit on 23 January 2020 for a heating and cooling air-conditioning unit, and an upgrade to his existing zoning system. Between 25 February and 4 March 2020, Mr Healy installed a system that could not heat. Mr Healy also did not upgrade the zoning system. A lid was not installed until 26 May 2020.
On Mr Healy's own evidence, he did not have the lids that would enable the Customers to use the heating function until April 2020.
Mr Healy agreed to supply and install air-conditioning units that heated and cooled. In order to meet his contractual obligation, this required the lids. Mr Healy supplied only part of what he was contracted to supply. The fact that the consumer may not have immediately needed or wanted to use the heating function is beside the point.
Accordingly, Mr Healy failed to supply all of what he had agreed to supply within a reasonable time (and, in the case of Mrs Surtees, by the time agreed).
By s 36(4) of the ACL, a person taking money for goods or services must supply all of the goods and services within the time agreed or, if no time is agreed, within a reasonable time. Accordingly, if s 36(4) applies, Mr Healy breached it.
Section 36(4) does not apply if the conditions in s 36(5) or s 36(6) are met.
The conditions in s 36(5) are that:
1.the person's failure was due to the act or omission of another person, or to some other cause beyond the person's control; and
2.the person took reasonable precautions and exercised due diligence to avoid the failure.
I do not accept that Mr Healy's failure was due to the conduct of BCJ or Polytech. Nor do I accept that Mr Healy took reasonable precautions and exercised due diligence to avoid the failure. On the contrary, I consider that Mr Healy sought to obtain the cash flow he needed from customer deposits, knowing he was not yet in a position to given them air conditioners, intending to make excuses for the delay to those customers for as long as possible until he was able to get his business up and running.
Accordingly, neither of the conditions of s 36(5) are met.
Section 36(6) provides that s 36(4) does not apply if the person offers to supply different goods to the customer and the customer agrees. On 6 February 2021, Mr Gibbons agreed to accept a Bonaire replacement. Accordingly, Mr Healy did not breach s 36(4) in relation to his failure to supply the original R.E.A.C.T.AIR unit. However, Mr Healy promised to install the Bonaire unit by 31 March 2021. Mr Gibbons agreed to this. Mr Healy failed to do this.
Mr Healy said he was unable to install the Bonaire unit by that date because he did not have the money to buy one and he was in poor health.[253] There is no evidence that Mr Healy's financial position and health materially changed between the time of his offer to replace the unit (6 February) and the time by which the replacement was to occur (31 March). Indeed, having regard to all of the evidence, I infer there was no change. In those circumstances, I do not accept that Mr Healy took reasonable precautions and exercised due diligence to avoid the failure.
[253] See ts 55, 312, 325.
Accordingly, the condition in s 36(5)(b) is not met in relation to the agreement to supply the Bonaire unit to Mr Gibbons. This makes it unnecessary to consider the first condition.
Therefore, I find that, in relation to all of the Customers, Mr Healy breached s 36(4) of the ACL by failing to supply all of what he had agreed to supply to them within a reasonable time or the time agreed.
Fourth, I find that Mr Healy's communications with the Customers was misleading and, at times, untruthful. The following are just a few examples of this.
Mr Healy lied to Mrs Surtees about having a single mother with three children as a customer, in order to persuade her to accept a later installation date.
Mr Healy lied to Mr Shelton by telling him that a delay was caused by a wrong part coming from the factory.
Mr Healy lied to both Mrs Surtees and Mr Shelton by telling each of them that a delay was caused by a part having been made in the wrong colour.
I infer Mr Healy made misleading statements to the Customers to deter them from cancelling the contracts.

The breaches of the Third Undertaking

Mr Healy admits he breached the Third Undertaking by selling, supplying, and installing air-conditioning systems during its term to the Customers. As noted earlier, he claims he believes that the term expired in April 2019, rather than July 2020. I have already explained why I do not accept this. Even if I had accepted that evidence, his conduct would still have breached the Third Undertaking.
Mr Healy also admits causing the advertisements to be placed. However, he denies that this was a breach. As noted earlier, he says:[254]
The undertaking excluded trading as a manufacturer or a distributor or a sub-contractor. The explicit ban was direct involvement in the sale and installation of residential air conditioning and excluded all other aspects of trading. The advertising […] was conducted to generate inquiries for independent retailers to make contact direct with and deal directly with consumers.
[254] Defence [1(a)].
I have already explained why I do not accept this was Mr Healy's intention in arranging the advertising.
Even if he did have that intention, his conduct would still have breached the Third Undertaking.
Under the Third Undertaking, Mr Healy was not to have (emphasis added):[255]
any involvement in any capacity, whether as principal, director, manager, employee, servant, agent or otherwise howsoever, in the retail sale, supply, installation, negotiation or acceptance of orders for any air conditioning system for personal, household or domestic use for a period of 5 years from the date of this Undertaking.
[255] Davis Affidavit AMD-16.
The advertisements invited homeowners to make contact with R.E.A.C.T.AIR, Mr Healy's business, to upgrade their existing solar power system and/or to obtain a free home assessment. This was direct involvement in the retail sale of air-conditioning systems for domestic use.
Accordingly, I find that Mr Healy breached the Third Undertaking in each of the alleged respects.

Should a declaration be made?

A declaration should not be made if its only utility is to record, in a summary form, conclusions reached by the court in its reasons for judgment.[256]
[256] Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378 [35].
In some circumstances, a declaration may have utility if it sets out the basis of the liability found and the penalties or injunctions imposed.[257]
[257] Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 [95] and MSY Technology [35].
The Commissioner submits that I should make the declaration:[258]
… primarily because the plaintiff's right to relief under section 218 of the ACL necessarily flows from the conclusion that the Enforceable Undertaking has been breached, but also because the declarations will:
(a)be an appropriate vehicle to record the court's disapproval of the contravening conduct;
(b)serve to vindicate the plaintiff's claim that the defendant contravened the Enforceable Undertaking;
(c)provide some assistance in the future to the plaintiff in carrying out her duties;
(d)inform consumers of the dangers arising from the defendant's contravening conduct; and
(e)deter others from contravening the legislation or enforceable undertakings.
[258] Commissioner's Submissions [17].
These were the reasons why Gilmour J found it appropriate to make declarations in Australian Competition and Consumer Commission v Marksun Australia Pty Ltd.[259]
[259] Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695 [49], citing Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730 (ACCC v CFMEU) [6]. In ACCC v CFMEU, these were five of the six reasons why Nicholson J found it appropriate to make declarations. The sixth reason was that they would be of assistance in clarifying the law.
I accept that the declarations sought in this case would serve each of these purposes. I further accept, and find, that it is appropriate to make the declarations in light of that.
I would therefore make the declaration sought.

Should a permanent injunction be granted?

The next issue is whether I should grant a permanent injunction restraining Mr Healy from having any involvement in the retail sale, supply, or installation of air-conditioning systems for domestic use.
The power to grant an injunction in this case arises under s 218(4).[260]
[260] There is no power in this case to grant an injunction under s 232 of the ACL. That section only applies to breaches of chapters 2, 3 or 4. The Commissioner seeks the injunction on the basis that there was a breach of s 218. Section 218 is contained in chapter 5. As noted earlier, I am satisfied that I have the power under s 218(4)(d) to grant an injunction.
The discretion to grant a permanent injunction must, as with any judicial discretion, 'be exercised judicially and for a proper purpose'.[261]
[261] Samsung Electronics Australia Pty Ltd v LG Electronics Australia Pty Ltd (No 2) [2015] FCA 477 [17].
The matters that may be relevant to the exercise of the discretion in any given case, and the weight to be given to those matters, will depend on the particular facts and circumstances of each case. For the same reason, the discretion cannot be exercised by merely going through a checklist of factors. The ultimate question is whether the court is satisfied that an injunction is appropriate. In my view, it will be if it is necessary to protect the public from an ongoing risk. In determining whether it is in this case, I consider that the following considerations are relevant:[262]
1.Whether there was an isolated breach or repeated breaches.
2.Whether the contraventions were intentional.
3.The time that has passed since the contraventions occurred.
4.The likelihood of future contraventions.
5.The likely seriousness of any future contraventions.

Breaches of s 36 of the Australian Consumer Law

[262] See Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513 [108] - [114] and Samsung [10] - [18]. The first of these cases dealt with s 80 of the Trade Practices Act 1974 (Cth), which was in similar terms to s 232 of the ACL. The second dealt with s 232. Section 232 expressly provides (as did s 80) that a court could grant an injunction if satisfied that a person had, relevantly, engaged in misleading and deceptive conduct or had accepted payment in breach of s 36 without having to find that the person had previously engaged in such conduct, or that the person intended to engage in such conduct in the future, or that there was an imminent danger of substantial damage if the person did so. Nevertheless, the factors identified in those cases provide a useful reference point.

I have explained why I found that Mr Healy breached s 36(3) of the ACL in relation to each of the Customers except Mr Gibbons. I explained why I found that he breached s 36(4) of the ACL in relation all of them.
I have explained why I consider that Mr Healy knew there were reasonable grounds for believing that he would not be able to supply the air-conditioning systems within the time indicated or within a reasonable time.
Mr Healy's breaches were not isolated.
Little time has passed since the breaches occurred.

Likely to continue to breach?

In my view, it is almost inevitable that Mr Healy will continue to breach the consumer legislation if he is not restrained.
First, Mr Healy has a long history of contravening consumer protection legislation.
Second, in an effort to protect consumers, the Commissioner has utilised a range of mechanisms against Mr Healy, including criminal prosecutions, civil proceedings, enforceable undertakings, contempt proceedings, and injunctions in limited terms and for limited periods. Despite these efforts, Mr Healy continues to breach the consumer legislation.
Third, Mr Healy has repeatedly failed to refund consumers' money, despite civil judgments, undertakings, and court orders. In 2010, he did refund the deposits of three consumer's money, but only during closing submissions in the contempt proceedings. He paid the fourth only after he was found guilty of contempt and Kenneth Martin J intimated that the penalty imposed would be heavily influenced by whether all deposits were refunded.
I accept that Mr Healy may not have been in a financial position to pay the debts he owed. However, if that was the reason he did not repay the debts, it appears that he nevertheless continued to undertake to repay debts in order to be permitted to continue to trade.
Fourth, Mr Healy has no insight into his behaviour.
First, in denying that he is likely to continue to engage in conduct that breaches s 36 of the ACL if not restrained, he said that apart from the three breaches of the Third Undertaking that he admits, he 'has observed the 4 Undertakings plus the Writ of 2009 spanning 11 years'.[263]
[263] Defence [38(c)].
He said this despite admitting he was found guilty of contempt in relation to six breaches of the First Undertaking. Presumably, by his reference to '11 years', he meant that he had not breached the First Undertaking after he was found guilty of contempt in October 2010.
He also said this despite admitting that he had made agreements and given undertakings to repay consumers and had not done so. Even if I accepted his claim to have believed the debts were extinguished by the Third Undertaking (which I do not), the Third Undertaking was not given for several years afterwards. In the intervening years, he did not make any payments.
Second, Mr Healy does not accept he was guilty of the offences of which he was convicted in 2009. He contends he was badly represented because it could have been argued that he had a defence under s 36(5) of the ACL on the basis that he had done his best to obtain the missing parts.[264] Having read the appeal court's decision,[265] it seems highly unlikely that such a defence would have succeeded.
[264] See ts 170 - 174, 248 - 249.
[265] Davis Affidavit page 15.
Third, Mr Healy said in his evidence, without irony, that the lesson he learnt from his 2009 convictions was not to be specific about installation dates.[266]
[266] ts 215.
Fourth, he said in his evidence that he did not think ('definitely not') that he had done anything wrong in dealing with the Customers.[267]
[267] ts 249.
Fifth, and aligned to the previous point, there is no reason to think Mr Healy may change his behaviour due to remorse. He shows no remorse.
Sixth, Mr Healy's dealings with the Customers shows that he prioritises his own interests over dealing fairly and honestly with consumers.
Seventh, in defending these proceedings, he gave untruthful evidence. If he is unwilling or unable to tell the truth in court, it is unlikely he will tell the truth to consumers.
It is likely that Mr Healy will continue to breach in similar ways. On their face and individually, such breaches are not particularly serious. The loss to consumers would be primarily financial. There would be some inconvenience and possibly stress. While a delay in obtaining air-conditioning could potentially cause health risks in rare cases, I would not take such a rare risk into account.
That said, the sums of money likely to be involved are not insignificant to an average household. The Schedule records amounts ranging from $1,116 to $5,279. These consumers have not recovered their money, despite those judgments and undertakings to repay them.
Each of the Customers in this case were put to considerable inconvenience and, I would infer, stress. Some remain out of pocket.
I also note that any future breaches would require the Commissioner to continue to expend time and resources in addressing them.
Overall, I consider that the seriousness of the likely future breaches is towards the lower end of the scale, but is far from insignificant.

Conclusion on injunction

A permanent injunction would serve the purpose of protecting consumers in the domestic air-conditioning market from paying deposits for air-conditioning systems that would not be fully installed within a reasonable time.
For these reasons, I consider it is appropriate to grant a permanent injunction.
An injunction must be expressed in clear terms. It must clearly identify what the respondent must not do.[268]
[268] Dataline [112] and Trade Practices Commission v GLO Juice Company Pty Ltd (1987) 73 ALR 407, 414 - 415.
The Commissioner seeks a permanent injunction restraining Mr Healy 'from having any involvement in any capacity, whether as principal, director, manager, employee, servant, agent, or otherwise howsoever, in the retail sale, supply, installation, negotiation, or acceptance of orders for any air-conditioning system for personal, household, or domestic use'.[269]
[269] Originating Motion [2].
If an injunction was made in these terms, this would clearly identify what Mr Healy must not do.
I am satisfied that it is appropriate to order a permanent injunction in the terms proposed by the Commissioner.

Compensation

If I am satisfied that a customer suffered loss as a result of the breach, I may make an order that Mr Healy pay compensation to that customer.[270]

Mr Woods

[270] Section 218(4)(c) of the ACL.

Mr Healy admits that Mr Woods paid him a total of $6,500 (in two instalments) for the installation of an air-conditioning system in his home. Mr Healy admits that what he installed did not have an external lid, so the system could not operate to heat the home. Mr Healy admits that Mr Woods paid a different supplier to remove the unit Mr Healy had installed and install a new unit.
However, Mr Healy denies that his breach of the Third Undertaking caused this loss. Mr Healy says, in effect, that Mr Woods caused his own loss by removing the unit before Mr Healy was able to install the lid.
Mr Healy gave evidence that Mr Woods had agreed that the external lid would be installed when it was available from the manufacture, and that Mr Woods knew that would not be before April 2020. In his evidence, he produced an unsigned contract dated 9 December 2019 that said, in effect, that the lid would be supplied in April (although he said that Mr Woods had said he (Mr Woods) had never received it).[271] I do not accept Mr Healy's evidence that this was agreed or that the document was the contract between Mr Healy and Mr Woods.
[271] See ts 154 - 155, exhibit 10.3B and the Defendant's Woods Response Affidavit [31] - [32], read with the equivalent paragraphs of the Woods Affidavit.
First, even on Mr Healy's version of events, there was no reason why he would have thought on 9 December 2019 that the lids would not be available until April.
Second, Mr Woods' affidavit attached an email from Mr Healy on 24 February 2020, which Mr Healy admitted having sent.[272] In that email, Mr Healy said 'I am still pursuing the Manufacturer of the Lid to find out where it is. As soon as we have the Lid we will install it'. This is inconsistent with the alleged contract.
[272] See Defendant's Woods Response Affidavit [35], read with the Woods Affidavit [35] and pages 14 - 15.
As for Mr Woods' evidence, he did not attend the hearing and Mr Healy was unable to cross examine him. This affects the weight I would be willing to give to Mr Woods' evidence. However, I am able to determine this point without regard to those parts of Mr Woods' evidence that Mr Healy disputes. The unchallenged evidence establishes the following.
Mr Woods paid $6,500 (in two instalments) for the installation of an air-conditioning system in his home. He paid the deposit on 9 December 2019. On 13 February 2020, Mr Healy told Mr Woods' he would install the system on 15 February 2020 if Mr Woods paid the balance in cash. Mr Woods agreed. The system was installed (without the lid) over 15, 17 and 18 February. Mr Woods paid the balance in cash on 18 February.[273]
[273] See the Defendant's Woods Response Affidavit [14], [18] - [28], read with the equivalent paragraphs in the Woods Affidavit.
By April 2020, the lid had still not been installed.[274] In early April, Mr Woods organised to have the unit replaced.[275]
[274] This was common ground.
[275] See the Defendant's Woods Response Affidavit [43], [45] and [46], read with the equivalent paragraphs in the Woods Affidavit.
I am satisfied that Mr Woods has suffered loss of $6,500 by reason of Mr Healy's breach of the Third Undertaking. Mr Woods suffered the loss because Mr Healy, in breach of the undertaking, sold him an air‑conditioning unit. The unit should have been fully installed within a reasonable time after the deposit was paid. It was not. Mr Woods did not get what he contracted to receive. It was entirely reasonable for Mr Woods to replace the unit in April, four months after he had paid Mr Healy a deposit.
I am satisfied it is appropriate to make an order that Mr Healy pay $6,500 compensation to Mr Woods. Mr Woods' loss was a direct and foreseeable consequence of Mr Healy's breach.

Mr and Mrs Gibbons?

The next issue is whether Mr Healy's breach caused loss and damage to Mr and Mrs Gibbons.
I am satisfied that Mr Healy's breach of the undertaking caused a loss Mr and Mrs Gibbons. Mr Healy accepted in June 2020 that there had been 'errors made during Assembly, Installation and delays in installing the Lid and Heating'.[276] Mr Healy ultimately offered to replace the unit with a Bonaire unit, but did not. Mr Healy's evidence was that it would cost 'about $4,000-$4,500' to get a Bonaire unit fitted. He then said Mrs Surtees paid $4,700, and 'it would probably be a little bit less than that'.[277]
[276] Exhibit 5.1.
[277] ts 267.
The Commissioner had the burden of proving the quantum of loss. I consider I should assess Mr and Mrs Gibbons' loss as being at the bottom of the range offered by Mr Healy, namely, $4,000.
I am satisfied it is appropriate to make an order that Mr Healy pay $4,000 compensation to Mr and Mrs Gibbons. Their loss was a direct and foreseeable consequence of Mr Healy's breach.

Orders

Accordingly, I would make the declarations in the terms sought, grant a permanent injunction in the terms sought,[278] and order that Mr Healy pay compensation to Mr Woods and Mr and Mrs Gibbons as outlined above.
[278] Deleting the reference to s 232 in [2] of the Amended Notice of Motion filed 30 April 2021.
I will hear from the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AG
Research Associate to the Honourable Justice Archer
20 DECEMBER 2021