Commissioner for Fair Trading v Peter Todd Garay - [2009] NSWSC 1196

CITATION: Commissioner for Fair Trading v Peter Todd Garay & Ors [2009] NSWSC 1196

HEARING DATE(S): 27/04/09-01/05/09, 05/05/09, 04/11/09, 06/11/09

JUDGMENT DATE :
10 November 2009

JUDGMENT OF: Hidden J

DECISION: First defendant found guilty of charges 2-4, 6-8, 10-12 in first statement of charges. All other charges dismissed.

CATCHWORDS: CONTEMPT OF COURT - defendants restrained by orders of Grove J from contracting for or undertaking residential building work - whether first defendant in breach of those orders

LEGISLATION CITED: Home Building Act 1989
Fair Trading Act 1987
Home Building Regulation 1997
Home Building Regulation 2004
Criminal Procedure Act 1986
Civil Procedure Act 2005

CATEGORY: Principal judgment

CASES CITED: Australasian Meat Industry Employee's Union and Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Witham v Holloway (1995) 183 CLR 525

TEXTS CITED: Concise Oxford Dictionary - 3rd Edition
Concise Oxford Dictionary - 7th Edition

PARTIES: Commissioner for Fair Trading (plaintiff)
Peter Todd Garay (first defendant)
Melinda Garay (second defendant)
Premier Turf Supplies Pty Ltd (third defendant)
Hunter Landscaping Supplies Pty Limited (fourth defendant)

FILE NUMBER(S): SC 2003/12909

COUNSEL: G S Sarginson (plaintiff)
R D Marshall (first defendant)

SOLICITORS: D Catt (plaintiff)
Brett Wiggins & Associates (first defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Tuesday 10 November 2009

2003/12909 Commissioner for Fair Trading
v
Peter Todd Garay
JUDGMENT

The plaintiff, the Commissioner for Fair Trading, has brought proceedings against the defendant, Peter Todd Garay, for contempt of court. Mr Garay is alleged to have been in breach of certain consent orders made by Grove J against him and three other defendants on 24 November 2003. In those proceedings he was the first defendant. Those orders were as follows:

Home Building Act

(a) undertaking any residential building work;

(b) contracting with any other person or entity to undertake residential building work;

(d) representing, either expressly or impliedly, that they, or any of them, is or are the holder of a licence under the Act.

Fair Trading Act

(a) undertaking or doing any residential building work;

(b) undertaking or doing the design of any residential…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2009] NSWSC 1196
Decision Date: 10 November 2009

CaseChat Overview and Summary

The case involved the Commissioner for Fair Trading and Peter Todd Garay. The dispute revolved around whether Garay had violated court orders that prohibited him from engaging in residential building work. These orders had been imposed by Grove J to prevent Garay from continuing activities that were detrimental to the public interest. The case was heard in the Supreme Court of New South Wales.

The central legal issue the court needed to address was whether Garay, the first defendant, had contravened the specific orders made by Grove J. The orders had clearly prohibited Garay from undertaking or contracting for residential building work. The court had to determine if there was evidence that Garay had breached these orders and, if so, the nature and extent of the breach.

The court examined the evidence presented and found that Garay had indeed violated the orders. The evidence demonstrated that Garay had continued to engage in residential building work despite the explicit prohibition. The court held that this constituted contempt of court. The court found that Garay had knowingly and wilfully disregarded the orders, which had been made to protect the public from his previous misconduct. The court's decision was based on the clear breach of the orders and the seriousness of the contempt.

As a result of the findings, the court made orders to enforce the contempt and to ensure compliance with the original orders. The specific orders were not detailed in the summary, but it was noted that they were designed to prevent further breaches and to uphold the integrity of the court's directives.

Orders