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

No judgment structure available for this case.

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;

(c) advertising that they or any of them is willing, able or available to undertake residential building work; and

(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 building work; and

(c) contracting with any other person or entity to do residential building work, including on behalf of an individual, partnership or corporation that is a holder of a licence under the Act authorising its holder to contract to do that work.

2 The proceedings arise from Mr Garay’s dealings with the owners of four properties in the Hunter region. In addition, he was the subject of an undercover operation by investigators with the Office of Fair Trading, who represented themselves as the owners of yet another property. He is alleged to have been in breach of the orders in his dealings with all these people, which took place over a period between June 2007 and September 2008.

3 There is no issue that the subject of those dealings was residential building work, as that expression is (and was at the time the orders were made) defined in s 3 of the Home Building Act 1989. It means:

… any work involved in, or involved in co-ordinating or supervising any work involved in:

(a) the construction of a dwelling , or

(b) the making of alterations or additions to a dwelling , or

4 By cl 5 of the Home Building Regulation 1997, which was in force at the time that the orders were made, the term “dwelling” was defined to include:

…

(k) retaining walls,

(l) agricultural drainage designed or constructed to divert water away from the footings of a dwelling or a retaining wall,

…

Home Building Regulation

5 Two statements of charges have been filed. The first contains sixteen charges, being four charges each in respect of four properties. Charges 1-4 relate to a property at Wattle Ponds owned by Mr and Mrs Van Der Linden. Charges 5 - 8 relate to a property at Singleton owned by Mr and Mrs Uebergang. Charges 9-12 relate to the property of Mr and Mrs Challinor at Toronto. Charges 13-16 arise from the undercover operation, conducted at a property in Lochinvar. The second statement of charges contains four further charges relating to the property of Ms Malvena Rogers, also at Toronto.

6 Each of the charges alleges that the defendant was knowingly in breach of one or more of the orders. Putting to one side the undercover operation at Lochinvar, the same breaches are alleged in respect of the properties at Wattle Ponds, Singleton and Toronto. Of the four charges in relation to each of those properties, the first alleges a breach of order 1(c) prohibiting Mr Garay from advertising that he was willing, able or available to undertake residential building work; the second a breach of order 1(d) prohibiting him from representing, expressly or impliedly, that he was the holder of a licence under the Home Building Act; the third breaches of orders 1(b) and 2(c) prohibiting him from contracting to undertake residential building work; and the fourth breaches of orders 1(a) and 2(a) prohibiting him from undertaking any residential building work.

7 It is convenient to set out the charges relating to the Van Der Linden property at Wattle Ponds, the elements of which are reproduced in the charges relating to the properties of the Uebergangs, the Challinors and Ms Rogers. Those first four charges are as follows:

1. The First Defendant is guilty of contempt of Court in that the First Defendant did, between about 18 and 27 June 2007 inclusive, advertise to Sarah Kate Van Der Linden, in person and by telephone, that he, by himself and in association with “Our Town Landscaping” and Lindsay McGoldrick, was willing, able or available to undertake residential building work at residential premises at [the Wattle Ponds address], New South Wales, knowingly in breach of order 1(c) of the Orders.

Home Building Act

3. The First Defendant is guilty of contempt of Court in that the First Defendant did, between 18 and 27 June 2007 inclusive, by himself and in association with “Our Town Landscaping” and Lindsay McGoldrick, contract with Peter and Sarah Kate Van Der Linden to undertake residential building work at residential premises at [the Wattle Ponds address], New South Wales, knowingly in breach of:

a. order 1(b) of the Orders; and

b. order 2(c) of the Orders.

4. The First Defendant is guilty of contempt of Court in that the First Defendant did, between about 27 June and early July 2007, by himself and in association with “Our Town Landscaping” and Lindsay McGoldrick, undertake residential building work at residential premises at [the Wattle Ponds address], New South Wales, knowingly in breach of:

a. order 1(a) of the Orders; and

b. order 2(a) of the Orders.

8 As will be seen, an important part of the case is the evidence of Mr Garay’s professional relationship with Mr Lindsay McGoldrick, who is his father-in-law and who was the proprietor of the business “Our Town Landscaping.” Reference will also be made to a company called Pro Contractor Group Pty Ltd, of which the sole director was Mr Garay’s wife, Melinda Garay.

9 Put shortly, Mr Garay’s case is that at the relevant time he was working legitimately as a landscaper, laying turf, but in the course of so doing he became aware of residents needing work done which would have amounted to residential building work and he referred that work to licensed building contractors, for the most part Mr McGoldrick. None of his dealings the subject of these proceedings amounted to his personally undertaking or contracting for the performance of residential building work, or his representing that he was in a position to do so.

10 Another investigator with the Office of Fair Trading, Kevin Michaelis, gave evidence of a meeting he had with Mr McGoldrick and Mrs Garay in early 2005. Mr McGoldrick said that he had a builder’s licence and asked if he could have Mr Garay “do work” for him. Mr Michaelis said that he could not, pointing out that Mr Garay was unlicensed and that the orders of the Court prevented him from doing residential building work for five years. Mr McGoldrick asked what the position would be if home owners told Mr Garay that they wanted retaining walls. Mr Michaelis said that he could refer them to a landscaper or a builder, but he could not quote for the work or imply that he could contract for it or carry it out himself. He also said that he could supply materials, in particular, blocks for retaining walls and landscaping material.

11 Mr McGoldrick was the only witness in the defence case. His account of that meeting was not entirely consistent with that of Mr Michaelis, but in material respects it was to the same effect. He agreed in cross-examination that he had told Mr Michaelis that he, not Mr Garay, would carry out any residential building work, including the furnishing of “final quotations”, co-ordinating contractors to do the work and supervising the work. He added, however, that Mr Michaelis told him that Mr Garay could provide potential customers with a “rough estimate” of the cost of the work.

12 It is reasonable to infer that all this was passed on to Mr Garay. Indeed, so much is apparent from the terms of a letter from Mr and Mrs Garay to the Office of Fair Trading of 5 May 2008, to which I shall refer later.

13 It was also the evidence of Mr Michaelis, unchallenged, that since 2005 he had had several telephone conversations with Mr Garay in which his professional relationship with Mr McGoldrick was discussed. The effect of those conversations was that Mr Garay denied sub-contracting to Mr McGoldrick, saying that he only sold blocks to him. Mr Garay said that he was only laying turf, but if people asked him for retaining walls he would put them on to Mr McGoldrick. Mr McGoldrick would then contract with them. He denied being employed by Mr McGoldrick, or giving quotes for residential building work.

14 Mr Michaelis told Mr Garay that, as he understood it, the Court orders did not prevent his seeking residential building work for a licensed contractor. However, he was to make it clear to people that he was only doing the turf, and that he should not be “advising people about retaining walls, driveways, costs, etc” because to do so “may be deemed to be seeking or doing work.” He said to Mr Garay, “The only work that you can do is lay turf and sell landscaping supplies. You cannot contract or do residential building work.”

15 It is against this background that the charges, and the evidence giving rise to them, should be understood. To establish each charge, the Commissioner bears the burden of proving beyond reasonable doubt that Mr Garay wilfully disobeyed one or more of the orders in the manner alleged. Put another way, it must be established to the criminal standard that he was in breach of the relevant order or orders and knew that he was. These principles in relation to contempt proceedings are to be found in Australasian Meat Industry Employee’s Union and Ors v MudginberriStation Pty Ltd (1986) 161 CLR 98 in the joint judgment at 113, and Witham v Holloway (1995) 183 CLR 525. Of course, the charges are related and some of the evidence is common to some or all of them. Nevertheless, I have considered each of them separately. In assessing the evidence bearing on each of the five properties, and the inferences to be drawn from it, I have not had regard to the evidence specifically related to any of the other properties.

The advertising charges

16 That said, five of the charges can be disposed of without an analysis of the evidence. As observed above, the first charge in respect of each of the five properties alleges a breach of order 1(c), which prohibited Mr Garay from “advertising” that he was willing, able or available to undertake residential building work. The gravamen of each charge is that he “did…advertise” as much to the owner of the property concerned or, in the case of the undercover operation, to the officers involved. Counsel for the Commissioner, Mr Sarginson, relied on the first two meanings of the verb “advertise” in the 3rd edition of the Australian Concise Oxford Dictionary:

1. promote (goods or services) publicly to increase sales;

2. make generally known.

17 However, I think that there is force in the argument of Mr Marshall, counsel for the defendant, that the charges do not use the word “advertise” as it is defined or, indeed, as it is popularly understood. To advertise something is to disseminate information about it to the public at large or, at least, to an identified section of the public. It is not to make a representation to an individual or individuals in what is essentially a private context. It is a representation of that kind which is alleged in these charges. There is no evidence whatsoever that Mr Garay promoted in any public domain his availability to undertake residential building work.

18 It appears to me that it is in that accepted sense that the word “advertising” is used in order 1(c). It is the other paragraphs of order 1 which are directed to Mr Garay’s dealings with particular home owners. It follows that each of the charges alleging a breach of order 1(c) must be dismissed. In the first statement of charges these are charges 1 (Van Der Linden), 5 (Uebergang), 9 (Challinor) and 13 (undercover operation). In the second statement of charges (Rogers) it is charge 1.

19 I turn, then, to the remaining charges and the evidence bearing upon them. Mr Garay did not give evidence: a fact from which, of course, I draw no inference adverse to him. Much of the evidence in the Commissioner’s case stands uncontradicted. Generally speaking, there was no challenge to the honesty of the witnesses in the Commissioner’s case, although questions were raised about the accuracy of some of their evidence. For the most part, the reliability of the evidence is not in question; the principal issue is the inferences to be drawn from it.

20 Mr Garay’s answer to the charges is to be found in the evidence of Mr McGoldrick, to which I shall refer, together with a letter written by Mrs Garay and countersigned by Mr Garay which was faxed to the Office of Fair Trading on 5 May 2008. That letter was prepared in response to a phone conversation a few days earlier between Mr Garay and John Bruinenberg, the departmental investigator in charge of the case. In that conversation Mr Bruinenberg told Mr Garay that it was alleged that he had been acting in breach of the Court’s orders and referred, in particular, to the then recent undercover operation at Lochinvar.

21 The letter, on the letterhead of Pro Contractor Group Pty Ltd, asserted that for some time after the orders were made Mr Garay confined his work to the laying of turf and associated “general soft landscaping.” The company, Pro Contractor Group, was operating as a turf supplier, as well as a supplier of other landscaping materials, including retaining wall blocks. Mr McGoldrick obtained a builder’s licence, and it was agreed that if he contracted to do residential building work, including retaining walls and driveways, Pro Contractor Group, described as “our” company, would supply the materials for the work.

22 The letter went on to refer to the meeting between Mr McGoldrick, Mrs Garay and Mr Michaelis, and to Mr Garay's continuing contact with that investigator. It was also said that Mr and Mrs Garay sought legal advice about the extent to which Mr Garay could maintain a professional relationship with Mr McGoldrick without breaching the orders. Upon this advice, it was said, they decided to conduct their business “in very close association” with that of Mr McGoldrick. Mrs Garay wrote:

Peter would go out to look at jobs, if the customer needed any residential building work eg: retaining walls, he would let the customer know that his father-in-law was a licensed builder and would be able to do any construction work for them. …Never at any single time did Peter ever imply to any of our customers that he was the builder, nor did he ever imply that he was licensed himself to complete their work.

23 The letter acknowledged that some customers might mistakenly have believed that Mr Garay was the contractor, because he was organising the materials on the site and overseeing some of the work being done. However, it added that most of these jobs also needed turf, soil and site preparation, which Mr Garay was completing for them. Any intention of breaching the Court’s orders was emphatically denied.

24 Broadly speaking, that letter is consistent with the evidence of Mr McGoldrick and Mr Garay is entitled to rely upon it in his defence. At the same time, the Commissioner relies upon it and upon the evidence of Mr Michaelis in proof of the mental element in each of the charges, that is, that Mr Garay was knowingly in breach of the relevant orders.

25 The evidence before me was on affidavit, and most of the deponents also gave oral evidence. It is not in dispute that at all relevant times Mr Garay did not hold a licence under Pt 3 of the Home Building Act.

First statement of charges/charges 2-4: Van Der Linden

26 Mr and Mrs Van Der Linden moved into their new home at Wattle Ponds, in the Singleton area, in May 2007. The property needed landscaping work. On or about 18 June 2007, Mrs Van Der Linden was approached by Mr Garay. He introduced himself as “Peter from Our Town Landscaping,” and said that he had been in the area doing some jobs. He asked her whether she needed some turf. She said that they did and that they also needed a lot more work to be done. They discussed the work required which, put shortly, comprised the preparation of garden beds with retaining walls and a staircase running from the house to the garden area. Those retaining walls and steps amounted to residential building work, as defined.

27 Mrs Van Der Linden showed Mr Garay a drawing of what she had in mind. He said, “I can’t structurally guarantee for seven years if it is done like that. I suggest two big gardens with stairs running through the centre. I can complete the work in a week. It will cost about $22,000.” He then wrote on the back of her drawing the words, “Peter Lin No. 170426C, Our Town Landscaping”, followed by what appears to be a telephone number. The “Lin” number was the number of Mr McGoldrick’s builder’s licence. However, there was no reference to him in Mr Garay's conversation with Mrs Van Der Linden on that occasion. Mrs Van Der Linden said that she would need to speak to her husband about the matter.

28 It is this evidence which gives rise to the second charge, that Mr Garay represented to Mrs Van Der Linden, expressly or impliedly, that he was a licensed builder (order 1(d)).

29 A few days later Mr Garay returned to the property, where he met Mr Van Der Linden. There was further discussion about the work to be done and the price for it, and Mr and Mrs Van Der Linden agreed that it should proceed. Again, there was no reference to Mr McGoldrick. The work began on 27 June. Mr Garay arrived on that day with a landscaping and paving contractor, Jamie Burton, whom he introduced to Mrs Van Der Linden. Mr Burton and some workmen began construction of the bottom retaining wall.

30 According to Mrs Van Der Linden, she did not meet Mr McGoldrick until 2 July 2007. She did not know who he was. He introduced himself as “Lindsay” and said that he needed her to sign a contract. He handed her a contract in which the contractor was shown as Lindsay McGoldrick, recording his licence number, and the description of the work to be done was by reference to an accompanying quotation. That quotation was for $12,000 for the construction of the retaining walls and steps, and was issued under the name “Our Town Landscaping - Lindsay McGoldrick”, again setting out Mr McGoldrick’s licence number. He was unable to undertake work of a value greater than $12,000 because of a restriction on his builder’s licence, the nature of which is of no present relevance. He said that he would collect the contract the next day, and that night Mrs Van Der Linden had her husband sign it. In fact, she said, he never did return to collect it.

31 This evidence, together with the evidence of Mr Garay’s earlier discussion with Mr and Mrs Van Der Linden, is the basis of the third charge, that, by himself and in association with Our Town Landscaping and Lindsay McGoldrick, he contracted with Mr and Mrs Van Der Linden to undertake residential building work (orders 1(b) and 2(c)).

32 Mr McGoldrick’s account was that he went to the property on 27 June, the day that the work began, and it was then that he met Mrs Van Der Linden. They discussed the work and “firmed the price up”. He went back to the property on 2 July with the contract, and Mrs Van Der Linden said that her husband would have to read it when he got home. He returned to the property the following morning but no-one was home. Over the ensuing days he visited the site on a number of occasions to check on the progress of the work, but forgot to collect the contract. Mrs Van Der Linden denied having seen Mr McGoldrick on 27 June or having discussed the work with him before he gave her the contract on 2 July. She also said that she was at home on 3 July and that Mr McGoldrick did not come to the property that day.

33 Work proceeded to the point where two retaining walls were partially completed and the base of a third was laid. The stairs were completed. At one stage Mrs Van Der Linden rang Mr McGoldrick to alert him to a problem about the height of one of the walls. Mr McGoldrick said that she would have to “talk to Peter” about that, and she took the matter up with Mr Garay. Mr Garay had her pay the contractor, Mr Burton, and other sub-contractors and suppliers directly as the work progressed, and on occasions he rang her to request that she have a cheque in a specified amount ready for Mr Burton. Mr McGoldrick said in evidence that it was he who instructed her to pay sub-contractors directly, but that was not her evidence. He also said that he visited the site on a number of occasions to check the progress of the work, but the effect of her evidence was that she had little contact with him while the work was being done and that she mainly dealt with Mr Garay.

34 This course of events leads to the fourth charge, that Mr Garay, by himself and in association with Our Town Landscaping and Lindsay McGoldrick, undertook residential building work (orders 1(a) and 2(a)).

35 Mrs Van Der Linden’s evidence was that the work on the retaining walls and the laying of the turf and the garden beds ground to a halt before it was completed and that, despite her contacting Mr Garay on a number of occasions, it remained unfinished. Of course, for present purposes the standard of the work is not relevant. What is significant is that on 27 August 2007 Mr and Mrs Van Der Linden wrote a letter of complaint to Mr McGoldrick. In the letter they described Our Town Landscaping as “your company”, and noted that the “company’s” job was to erect the retaining walls and the stairs, as well as laying the garden beds, supplying plants and laying the turf.

36 The letter recorded that they had rung Mr McGoldrick many times to organise the completion of the work, that at on at least six occasions he or Mr Garay had given them dates on which the job would be finished, but that on each of those dates no-one turned up or contacted them. Mrs Van Der Linden rang Mr McGoldrick about a week later, and he said that he would “have Peter there to finish the job by the end of the week” and they should contact Peter and “work out a date with him”. However, they were still unable to get Mr Garay to come to the property.

37 Mr Garay’s case in response to these charges is that his role was purely entrepreneurial, and that he did no more than arrange for Mr McGoldrick to contract for and undertake the work as the licensed builder. In submissions on his behalf, Mr Marshall pointed out that the contract was in Mr McGoldrick’s name, and that it was to him that Mr and Mrs Van Der Linden wrote on 27 August 2007 to complain about the lack of progress of the work. He submitted that I would accept Mr McGoldrick’s evidence that he went to the property and discussed the work with Mrs Van Der Linden on 27 June, the day that work began, and that it was he who instructed her to pay sub-contractors directly.

38 To the extent that Mr McGoldrick’s evidence is in conflict with that of Mrs Van Der Linden, I accept her account. Clearly, Mr McGoldrick was not a disinterested witness and I regret to say that I did not always find him to be truthful. Of course, Mrs Van Der Linden’s honesty was not challenged but I am also satisfied that she was a careful and reliable witness. I accept that the first she saw of Mr McGoldrick was on 2 July and that it was Mr Garay who directed her to pay sub-contactors directly.

39 In the light of these findings and, indeed, the other unchallenged evidence of Mrs Van Der Linden, the proposition that Mr McGoldrick was in truth the building contractor does not sit easily with evidence he gave in cross-examination by Mr Sarginson, for the Commissioner. He agreed that normally a licensed builder would himself attend the site at the outset to assess the job and the likely cost of it. The builder would then provide a quotation and, if accepted, a contract before any work began. He would arrange for workers on the site and, where necessary, sub-contract specific tasks to tradesmen. He would identify a date, or at least an “approximate” date, when the work would start. He would normally be at the site on the first day and, indeed, Mr McGoldrick said that he himself attended the site on the first day for “95%” of his jobs.

40 As Mr Sarginson pointed out, apart from providing the quotation and the contract, Mr McGoldrick did none of those things for the Van Der Lindens. It was Mr Garay who first attended the site and discussed the work to be done. Everything he said suggested that it was he who would undertake the work. The same is true of his meeting with Mr Van Der Linden a few days later. On neither occasion was there any reference to Mr McGoldrick.

41 It was Mr Garay who attended on 27 June with the landscaping and paving contractor, when work began. It was not until four days later, on 2 July, that Mr McGoldrick first appeared at the property to provide the contract and the attached quotation. Asked in cross-examination why a letter of complaint about the work was addressed to Mr McGoldrick, Mrs Van Der Linden denied that it was because she knew that he was their builder. She explained in re-examination that it was because she and her husband had repeatedly rung Mr Garay, asked him to come to the property to finish the work, but he repeatedly failed to honour his undertaking to do so. For that reason they decided to write a letter “to the person who gave us the contract …”

42 I am satisfied that Mr Garay presented himself to Mr and Mrs Van Der Linden as the building contractor, and that it was primarily he who negotiated with them to undertake the work and who supervised the work which was done. In so far as Mr McGoldrick, as proprietor of Our Town Landscaping, provided the contract and quotation and may have attended the site from time to time thereafter, that limited involvement establishes no more than that Mr Garay was acting “in association with” him, as alleged in the third and fourth charges. The expression “in association with” is derived from the opening words of the two orders made by Grove J set out at the beginning of this judgment. Order 1 prohibited the relevant conduct on the part of the defendants “by themselves, their … associates or otherwise …”, and in order 2 the conduct proscribed was “by themselves … or otherwise … .” Those expressions “by their associates” and “or otherwise” are broad enough to encompass an allegation of Mr Garay acting in association with someone.

43 Accordingly, I am satisfied beyond reasonable doubt that on or about 18 June 2007 Mr Garay represented to Mrs Van Der Linden, expressly or impliedly, that he was a licensed builder (charge 2); that between 18 and 27 June 2007, by himself and in association with Our Town Landscaping and Mr McGoldrick, he contracted with Mr and Mrs Van Der Linden to undertake residential building work at their premises (charge 3); and that between about 27 June and early July 2007, by himself and in association with Our Town Landscaping and Mr McGoldrick, he undertook residential building work at those premises (charge 4).

44 In the light of his contact with Mr Michaelis and the letter of 5 May 2008 to the Office of Fair Trading, referred to above, I am also satisfied beyond reasonable doubt that Mr Garay was aware of his obligations under the orders of Grove J and knew that his dealings with the Van Der Lindens were in breach of them. As to each of those three charges, I am satisfied that he was knowingly in breach of the orders referred to in them.

45 Charges 2, 3 and 4 are made out.

Charges 6–8: Uebergang

46 These charges relate to Mr Garay’s dealings with Mr and Mrs Uebergang at their property in Singleton. The elements of charges 6, 7 and 8 are the same as those of charges 2, 3 and 4 respectively, relating to the Van Der Linden property. In charges 7 and 8 Mr Garay is alleged to have acted in association with Pro Contractor Group Pty Ltd and Lindsay McGoldrick.

47 At the relevant time the home was under construction, and Mr and Mrs Uebergang did not reside there. Mr Philip Uebergang’s evidence was that in July 2007, while he was at the property, he was approached by Mr Garay, who was working at the property next door. Mr Garay introduced himself as “Peter”, and offered to provide a quote for landscaping work. Mr Uebergang told him that he required a hardwood retaining wall, concrete paths around the house, a concrete patio slab at the back door and a concrete driveway. Mr Garay measured the relevant areas by pacing them out, and quoted a price of $15,000. Mr Uebergang took his phone number and said that he would call back after discussing the matter with his wife. Mr Garay added, “I guarantee all my work for 7 years.”

48 This conduct gives rise to the sixth charge, that in and around July 2007 Mr Garay represented to Mr Uebergang, expressly or impliedly, that he was a licensed builder.

49 Mr Uebergang discussed the matter with his wife that night, and she telephoned Mr Garay and managed to get the quote down to $13,000. The following day, Mr Uebergang phoned Mr Garay to accept that quote. A couple of weeks later, Mr Garay phoned Mr Uebergang to say that he had arranged an excavator and some workmen to start work on the retaining wall and that he would need $8,000 before the work began. It was arranged that this would be done by bank transfer and that, for that purpose, Mr Uebergang should contact Mrs Garay. Mr Uebergang did so, and Mrs Garay requested payments totalling $8,000 to be deposited to three accounts: one in the name of Pro Contractor Group, another in her own name and the third in the name of Mr McGoldrick. Mr Uebergang agreed, and this was done the following day.

50 This evidence is the basis of the seventh charge, that in and around July 2007 Mr Garay, by himself and in association with Pro Contractor Group Pty Ltd and Lindsay McGoldrick, contracted with Mr Uebergang to undertake residential building work at the Singleton premises.

51 Work on the retaining wall began on 24 July 2007. It is unnecessary to recount the course of the work thereafter. It is sufficient to say that between that date and the end of August 2007 the retaining wall, the driveway and the rear patio area were completed. At Mrs Garay’s direction, a further payment was made by deposit to the account of Pro Contractor Group. From time to time Mr Uebergang contacted Mr Garay about the progress of the work, including the need to deal with some problems relating to the retaining wall and to add a detail to the construction of the driveway, for which an additional payment was agreed.

52 This course of events is the basis of the eighth charge, that between 24 July 2007 and September 2007 Mr Garay, by himself and in association with Pro Contractor Group Pty Ltd and Lindsay McGoldrick, undertook residential building work at the premises.

53 As I have said, the Uebergangs were not in residence at the property. In cross-examination, Mr Uebergang agreed that he was not “around much” while the work was being done because he was either at work or travelling interstate. That said, he was never presented with a written contract and at no time did he meet, or hear of, Mr McGoldrick.

54 It was put to him in cross-examination that at the outset Mr Garay had discussed with him the need to use a builder with a licence. He said that Mr Garay had “brought the licence issue up” but, in answer to a further question, was not sure whether “licensing was mentioned …” He added that he was under the impression that Mr Garay was doing the work “and that he would give us a 7 year guarantee on it.” However, he denied that Mr Garay had mentioned his father-in-law or had spoken of the need to get someone with a licence so that he could take advantage of the guarantee.

55 In his evidence Mr McGoldrick acknowledged that he had never dealt directly with Mr Uebergang, but the effect of his evidence is that at all times he dealt with him through Mr Garay as intermediary. He attended the property and was shown the work to be done by Mr Garay. He told Mr Garay that the cost would be $11,500, and believed that that information had been passed on to Mr Uebergang and accepted by him. The sum of $13,000 quoted by Mr Garay, he said, was simply a rough estimate. This, of course, is not consistent with the evidence of Mr Uebergang.

56 Thereafter, according to Mr McGoldrick, work proceeded and from time to time Mr Garay communicated to him the owner’s requirements. He said that it was he himself who arranged for a concreter and excavator, and that he attended the site on numerous occasions to supervise the work or to undertake some of the work himself. That he never came into contact with the owner, he believed, was because he did not live at the address and “was varying his work hours”.

57 In cross-examination, he claimed that he went to the site on a number of occasions early in the morning to “try and catch” Mr Uebergang, without success. He acknowledged that he was aware that Mr Garay had Mr Uebergang’s phone number. Nevertheless, he never obtained that number and made no attempt to contact Mr Uebergang to discuss the work and the payment for it, or to arrange a meeting for that purpose.

58 This evidence of Mr McGoldrick is completely unacceptable, and I reject it. The proposition that a licensed builder would undertake work in the absence of a written quotation and contract, and having had no contact at all with the owner of the property, strains credulity. I am satisfied that it was Mr Garay who negotiated to undertake the work, representing himself as the builder, and who was primarily, if not solely, responsible for its co-ordination and supervision. Accordingly, I am satisfied beyond reasonable doubt that he was knowingly in breach of Grove J’s orders in the manner alleged in each of these three charges.

59 Charges 6, 7 and 8 are also made out.

Charges 10-12: Challinor

60 These charges relate to the property of Mr and Mrs Challinor at Toronto. Again, the elements of the offences charged are identical to those which I have found established in relation to the Van Der Lindens and the Uebergangs. The eleventh charge alleges conduct in association with Pro Contractor Group Pty Ltd and Lindsay McGoldrick, and the twelfth charge also alleges conduct in association with that company and Mr McGoldrick, together with “NSW Earthmoving”. I shall explain the relevance of that business name as I recount the evidence.

61 In early February 2008, the Challinors moved in to their new home on the property. Shortly before doing so, in late January, Mr Challinor inspected the property to determine additional work which would need to be done once the house was finished, such as a driveway, paths, fences and the like. On that occasion he was approached by Mr Garay, who introduced himself as “Peter” and handed him what was said to be his business card. It was a card for Pro Contractor Group Pty Ltd. Mr Garay’s name did not appear on it, but on it was written, “All construction and building work carried out by Lindsay McGoldrick”, together with Mr McGoldrick’s licence number. Mr Garay said, “If you need a driveway or anything else done, I can do it.” Mr Challinor said that once he had worked out what needed to be done he would call Mr Garay.

62 A couple of days after they moved into the home, Mr Challinor called Mr Garay to say that he had decided what was to be done and asked Mr Garay to come to the property. Mr Garay arrived in the late afternoon and Mr Challinor showed him the work he wanted done, being a concrete driveway, footpaths, a box drain for stormwater runoff, a patio area, retaining walls, a boundary fence and a concrete slab for a water tank. He also wanted some turfing which, of course, Mr Garay was permitted to do.

63 Mr Garay said that he could do the work for $22,000 plus GST. Mr Challinor discussed that estimate with his wife and drew up a site plan to give to Mr Garay. He phoned Mr Garay to arrange his attendance the next day. On that occasion he presented him with the site plan and said that he and his wife had decided to have a full concrete footpath down the western side of the house. Mr Garay said that that would increase the price and that he could do “the whole job for $25,000.” Mr Challinor said that if he would supply a written quote he would engage him to do the work. Mr Garay undertook to organise the quote, and repeated that undertaking on or about 10 February when Mr Challinor reminded him of it.

64 This evidence is the foundation of the tenth charge, that between about late January and 10 February 2008 Mr Garay represented to Mr Challinor, expressly or impliedly, that he was a licensed builder. It is also the source of the eleventh charge, that in the same approximate time frame Mr Garay, by himself and in association with Pro Contractor Group Pty Ltd and Lindsay McGoldrick, contracted with Mr and Mrs Challinor to undertake residential building work at the premises. Mr Challinor subsequently received a written quotation and contract from Mr McGoldrick, a matter to which I shall return.

65 It was Mr Challinor’s evidence that on 12 February Mr Garay called him and asked him to draw a cheque for $2,200 for the excavator, trading under the name NSW Earthmoving, and to give it to that man at the site. Mr Challinor did so. Work continued over the ensuing weeks, and from time to time Mr Challinor paid for materials and for tradesmen by cheques in accordance with Mr Garay’s directions. On occasions, he saw Mr Garay at the property apparently directing workers in their tasks.

66 On 29 February Mr Garay rang him to request a cheque for $5,000 to Pro Contractor Group so that he could pay his workers’ wages, together with a cheque for $1,000 to L & G McGoldrick. Later the same day Mr Challinor gave him those cheques. In his affidavit Mr Challinor deposed that he did not ask Mr Garay who L & G McGoldrick were, but found out later after talking to his wife that “a Lindsay McGoldrick was working at my home for Peter.”

67 Work continued, but Mr Challinor was dissatisfied with it in a number of respects. That is also a matter to which I shall return, although it will not be necessary to examine what Mr Challinor’s complaints were. Ultimately, he complained to the Office of Fair Trading and came into contact with Mr Bruinenberg. By this time work had ceased, and on 23 April he met with Mr Garay and Mr McGoldrick, and later with Mr Bruinenberg, at the property.

68 This evidence gives rise to the twelfth charge, that between about 12 February and 23 April 2008 Mr Garay, by himself and in association with Pro Contractor Group Pty Ltd, NSW Earthmoving and Lindsay McGoldrick, undertook residential building work at the premises.

69 The effect of Mr Challinor’s affidavit is that it was not until some time after work had begun that a quotation arrived at his home, together with a contract. This was said to be “a couple of days after the driveway was completed”, but it is not clear when that was. As events were recounted in the affidavit, Mr Challinor noted that the documents were dated 12 February 2008, each specifying an amount of $12,000 only and signed by Lindsay McGoldrick. Mr Challinor thought this strange, as he had never met Lindsay McGoldrick and he had contracted with Mr Garay for work of the value of $25,000. Accordingly, he did not sign the contract.

70 In February 2008 Mr McGoldrick was working at the property adjoining the Challinors’. It was his evidence that on 12 February he introduced himself to Mr Challinor as Mr Garay’s father-in-law. He said that he was the licensed builder who would be contracting to construct the driveway, front pathway, rear patio and “slab extension” for the water tank. Mr Challinor explained some details concerning the work he wanted, whereupon Mr McGoldrick told him that the total cost would be $12,000 and that he would drop off a quotation and contract the following day.

71 According to Mr McGoldrick, Mrs Challinor telephoned him later on 12 February to ask if he could supply the contract and quotation that day. He agreed to do so, and it was arranged that he would leave them inside the front security screen door if she was not at home when he called. There was no-one at the property when he arrived, and he found that the security door was locked. He left the documents in the electrical meter box, and later rang Mr Challinor to say he had done so. She called back to say that they were not there.

72 Mr Challinor, despite his affidavit evidence about the arrival of the contract and quotation at his home, agreed in cross-examination that it had occurred on 12 February in the manner described by Mr McGoldrick. Indeed, he also agreed that the documents were in fact retrieved from the electrical box that same day. I should note that Mrs Challinor did not give evidence.

73 The contract was on the same standard form as that used for the Van Der Lindens. It showed Lindsay McGoldrick as the contractor and attached a quotation, both documents being hand written by Mr McGoldrick. To confuse matters, the quotation showed as the contractor Lindsay McGoldrick as proprietor of Our Town Landscaping.

74 Mr McGoldrick’s account continued that on the following day, 13 February, he again saw Mr Challinor at the property. He recommended that the box drain be installed in a different position because of difficulties with excavation where it was to have been placed, and also suggested that a proposed pathway across the front of the house be excluded. Mr Challinor agreed to these alterations. Mr McGoldrick said that they would need to be reflected in a new contract and quotation, although that would not affect the price of the work.

75 According to Mr McGoldrick, his daughter delivered the amended documents to Mrs Challinor the following day. She said that she and her husband would want to read the documents before signing the contract. On several occasions thereafter he asked for a copy of the signed contract to be returned to him for his records but, in effect, Mr Challinor fobbed him off and he never did receive it.

76 There is in evidence a second contract in the same form as the original, but referring to a different quotation. A copy of that quotation, altered in accordance with the changes said to have been agreed upon, is also in evidence. Both documents were dated 12 February.

77 The two quotations were written in a quotation book from which the original could be removed, leaving a carbon copy in the book. On the page opposite the copy of the first quotation is a sketch by Mr McGoldrick which appears to show, among other things, the position of the box drain. Also in evidence is a page from a notebook with notes in Mr McGoldrick’s hand on both sides. On one side appear to be brief notes of work to be done, together with a small sketch showing the original position of the box drain. Mr McGoldrick said that he made those notes and drew the diagrams on both documents on 12 February, during his initial discussion with Mr Challlinor.

78 On the other side of the page from the notebook are further notes, apparently related to the changes agreed to on 13 February, together with another diagram. Those notes were made and that diagram was drawn, said Mr McGoldrick, on that day. On the copy of the second quotation there is a note by Mr McGoldrick, “Duplicate copy. Note changes to quotation 259871.” That was the number of the original quotation.

79 In cross-examination, Mr McGoldrick agreed that he knew that Mr Garay had spoken to Mr Challinor before 12 February, and that the two had had discussions about the building of a driveway, a pathway, a patio area and a slab extension at the water tank in the backyard. He agreed that he did not tell Mr Challinor on 12 February that he would need to take measurements for the job, consider the cost of materials and estimate how long the work might take. He agreed that he knew that Mr Garay had arranged for excavation work for the driveway to commence that day. He said that he did not know that Mr Garay had already given Mr Challinor an estimate of the cost of the work in excess of $20,000. He denied having approached Mr Challinor on the basis that an agreement to undertake the work had already been negotiated by Mr Garay.

80 Mr McGoldrick’s evidence was that he was present at the property when work was done, particularly work on the driveway and the installation of the box drain, assisting workers and giving them instructions. He agreed that he never asked Mr Challinor to pay him any money directly. The only matter relating to payment about which he spoke to Mr Challinor was to ask him to pay the concreters when they had finished their work. He had no recollection of a cheque for $1,000 to L & G McGoldrick, or a cheque for $5,000 to Pro Contractor Group Pty Ltd. He knew of that company, although he did not recall having seen a business card of the type which Mr Garay had given to Mr Challinor. He remembered Mr Garay saying that he was going to have some cards prepared, and acceding to Mr Garay’s request that his name and licence number appear on them.

81 Asked about the pathway on the western side of the house, Mr McGoldrick said that that was not the subject of his quotation and had nothing to do with him. It was put to him that he and Mr Garay had deliberately divided up the work between themselves. This he denied.

82 The effect of Mr Challinor’s evidence is that at all relevant times he dealt face to face only with Mr Garay, with the exception of an occasion when Mr McGoldrick phoned him to make a payment relating to the concreting. Otherwise, it was not until late in the piece, in pursuit of his complaints about the standard of the work, that he had contact with Mr McGoldrick. In cross-examination, he said that he had no recollection of conversations with Mr McGoldrick on 12 or 13 February. Equally, he said that he had no recollection of Mr Garay telling him that his father-in-law would be the builder doing the work. He saw Mr McGoldrick’s name on the business card which Mr Garay had given him, and said that he knew that he was associated with Pro Contractor Group. He added, however, that “that was as far as my knowledge of him went.”

83 In oral evidence, he said that over a period from mid February he saw Mr Garay at the property, apparently directing the work of various contractors. However, as I have recorded, it appears from his affidavit evidence that his wife had told him that Mr McGoldrick was working at the property. From some of his answers in cross-examination, it appears that he understood that Mr McGoldrick was working for Mr Garay as a sub-contractor. Asked about how he interpreted the initial quotation from Mr McGoldrick, he said:

“ … I was dealing with and only with Peter Garay through Pro Contractor Group and in my mind this contract from Our Town Landscaping essentially was not for me, and as I had been asking Peter for a contract because I was contracting with him for the whole job not for subcontracts for various parts.”

84 He acknowledged having received the second contract and quotation after Mr McGoldrick’s daughter had delivered it. Of that second quote he said:

“This quote was closer to what I wanted, however as I have stated all along, I was dealing with Peter and this job, this quote does not cover everything that I was asking to be done. This quote only relates to a small portion of the job.”

85 He also said that all changes to the work were discussed “through Peter”. I have referred to the site plan which he gave to Mr Garay early in February 2008. In cross-examination, he identified a copy of that plan on which there were handwritten notations of his own. These appear to relate to various aspects of the work which he required to be rectified. He agreed that those notations were made after discussion with both Mr Garay and Mr McGoldrick, but when this occurred is not clear. It would appear to be at a late stage of the proceedings, again when he was conveying his complaints about the standard of the work.

86 He denied that Mr McGoldrick had ever asked him to return a signed copy of the contract. Pressed in cross-examination about why he had allowed the work to continue without having signed a contract, he said that he did not feel that he could stop the work until he had been supplied with a proper contract, adding that he had been asking Mr Garay since their initial meeting to provide a contract to him. When it was put to him that he had a contract from a licensed builder, he replied, “But I did not have a contract from the person who I was engaging to undertake the work for me.” Later in his evidence, he added, “As far as I was concerned, Peter had contracted Mr McGoldrick to do some of the concreting work and I was essentially contracting with Peter to oversee and control the work on the site.”

87 Early in March 2008, he recorded his concern about deficiencies in the work by drawing up a short agreement which set out those deficiencies and stipulated that no further money would be paid until they had been resolved. He signed the document on behalf of himself and his wife, as owners of the property. Mr Garay also signed it “on behalf of Pro Contracting Group”. Those deficiencies are not relevant for present purposes. What is significant is the opening sentence of the document:

“This is to confirm that “Peter” from Pro Contractor Group, provided a verbal quote of $25,000 to complete the landscaping of [the Toronto address].”

88 Mr Marshall submitted that Mr Challinor was not a dispassionate witness, describing him as “defensive” and as “an advocate for his disgruntled cause”. That was not my impression of him, even though he was clearly dissatisfied with the work done on his property. Generally, like Mrs Van Der Linden, he presented as an honest, intelligent and careful witness. Nevertheless, the inconsistencies between his affidavit evidence and his oral testimony to which I have referred are significant, and call into question the reliability of his recollection.

89 Not only did Mr Challinor accept that Mr McGoldrick’s first quotation was delivered on 12 February, as he said. Mr McGoldrick’s evidence that he discussed aspects of the work to be done with Mr Challinor on that day and on the following day is supported by the notes and sketches which are in evidence, together with the second quotation. I think it likely that the two men did meet on those days, notwithstanding Mr Challinor’s lack of recollection of it. This has caused me to scrutinise his evidence with particular care.

90 There remains his evidence of his dealings with Mr Garay before 12 February, which I accept and which, in any event, was largely unchallenged. Mr Garay discussed with him the work he wanted done and provided an estimate of its cost. That estimate was revised after Mr Challinor said that he wanted a footpath on the western side of the house. Nothing that Mr Garay said suggested that these were merely rough estimates, and that Mr Challinor should expect a precise quotation from a licensed builder whom Mr Garay represented.

91 Mr Marshall relied upon the fact that Mr Garay gave Mr Challinor a card in the name of Pro Contractor Group which asserted that all construction and building work would be carried out by Lindsay McGoldrick, whose licence number was set out. That, however, falls well short of conveying to Mr Challinor that Mr Garay was doing no more than introducing him to Mr McGoldrick as the licensed contractor with whom he should deal. Moreover, I am satisfied that before 12 February Mr Challinor had engaged Mr Garay to carry out the work on the basis of the oral quote for $25,000. Mr Garay had arranged for excavation work to begin on 12 February. It is not suggested that Mr McGoldrick met Mr Challinor before that day and, if he were to be the licensed contractor for all the work on the property, it is inconceivable that he would have his first meeting with the owner and arrange for the supply of a quotation on the day that work began.

92 In all the circumstances, one can readily understand why Mr Challinor thought that Mr McGoldrick was a sub-contractor engaged by Mr Garay. The figure of $12,000 quoted by Mr McGoldrick was less than half the figure estimated by Mr Garay for the whole of the work for which Mr Challinor understood he had contracted. This is consistent with the fact that the pathway on the western side of the house and the fencing were not included in Mr McGoldrick’s quote. It is also consistent with Mr Challinor’s evidence, which I accept, that for the most part he dealt with Mr Garay and made payments at his direction. It is noteworthy that Mr Garay was prepared to sign the agreement of March 2008, which opened with the recital that he had provided a verbal quote of $25,000 to complete the work and which made no reference to Mr McGoldrick or Our Town Landscaping.

93 The evidence clearly admits of the inference, put to Mr McGoldrick in cross-examination, that he and Mr Garay had divided up the work between them. Certainly, Mr McGoldrick appears to have been an active participant in the work at the property. What arrangement there was between the two men is not clear, but it is also not material. What is clear is that Mr Garay represented himself as capable of undertaking the work, that he negotiated with Mr Challinor a global figure for completing it, and that he was involved to a significant extent in supervising its progress. I am satisfied beyond reasonable doubt that he was in breach of the orders in the manner alleged in these three charges, and knew that he was.

94 Charges 10, 11 and 12 are made out.

Charges 14-16: Undercover operation

95 These charges arise from an undercover operation in which Mr Garay had dealings with two investigators of the Office of Fair Trading, Mr Stephen Hopkins and Ms Sharon Lodding, in relation to a property at Lochinvar. The sixteenth charge is one of representing himself as a licensed builder, the elements of which are the same as the equivalent charge in relation to the three properties I have already dealt with. However, the fourteenth and fifteenth charges are peculiar to the undercover operation, and it is necessary to set them out in full.

96 Those charges are as follows:

14. The First Defendant is guilty of contempt of Court in that the First Defendant did, on 30 April 2008, attend the residential premises at [the Lochinvar address], New South Wales, for the purposes (sic) of doing the design of any residential building work for Sharon Lodding and Stephen John Hopkins, investigators of the Office of Fair Trading, knowingly in breach of order 2(b) of the Orders.

15. The First Defendant is guilty of contempt of Court in that the First Defendant did, between 30 April 2008 and 1 May 2008 inclusive, provide a quote to enter into a contract with Sharon Lodding and Stephen John Hopkins, investigators of the Office of Fair Trading, to do residential building work at [the Lochinvar address], New South Wales, knowingly in breach of:

a. order 1(b) of the Orders; and

b. order 2(c) of the Orders.

97 By April 2008 Mr Garay’s activities were under investigation by the Office of Fair Trading. On 28 April, Mr Bruinenberg obtained access to a property at Lochinvar for the purpose of the undercover operation. Mr Hopkins and Ms Lodding were to represent themselves as a married couple who wanted work done on the property. On 28 April, Ms Lodding phoned Mr Garay, introducing herself as Sharon Moffat. She said that she needed a garden makeover, turf, a driveway and a fence for the property. She said that the home belonged to her mother-in-law, who had dementia. It was arranged that they meet at the property two days later, on 30 April.

98 On that day, a Wednesday, Mr Garay met both Ms Lodding and Mr Hopkins at the property. Three other investigators, including Mr Bruinenberg, had the property under surveillance from vehicles parked nearby. Ms Lodding introduced Mr Hopkins as “my husband, Steve”. Mr Hopkins said that they needed some work done on the property because it was to be sold. What then occurred is recounted in their affidavits.

99 Mr Hopkins said that the fencing on the property would need to be replaced. Mr Garay asked whether they wanted to retain the silver posts in the existing colourbond fence, the three of them discussed the posts and relative prices, and Mr Hopkins told Mr Garay what his requirements would be. The three then walked to the rear of the property, where there was an old metal carport. Ms Lodding said that they wanted to get rid of it, and Mr Garay said, “Yes, I can remove it …” He asked whether they also wished a retaining wall under the carport to be removed, but Mr Hopkins said that they did not.

100 They then walked to the front of a two-door garage. Ms Lodding said they would need the driveway concreted between the street and the front of the garage and that it would need to be flared out between the street and the garage. Mr Garay said that that would be no problem, but added, “As it is structural the contractor will give you a contract, it has to be done with a licensed contractor and you will need to give the warranties with the sale to the new owner.” There was discussion about the layout of the driveway, including the paths for the back, and Mr Garay showed them what he intended to do. During that discussion he said, “I have 40 blokes working for me.” He also offered to show them some of his work at nearby Aberglasslyn.

101 Mr Garay asked them whether they wanted the front fence replaced, but they said that they had not thought about that. He said that he could put a low pool fence in, which would make the place look better. Mr Hopkins said that they would think about that but that he should include it in his quote. There was then discussion about returfing the front and back yards.

102 There was further discussion about the style of finish for the driveway, and Mr Garay removed a brochure from his car and gave it to Ms Lodding. The brochure was issued by “Concrete Technologies” and set out various options for resurfacing concrete areas. Mr Hopkins said that they would need a quote for the fence, driveway, returfing and garden beds, and asked for a rough idea of the cost. Mr Garay asked him what his budget was, to which he said $20,000 to $30,000. Mr Garay said that he would be able to do that, and added that he could guarantee that they would double what they spent on sale of the property. He then left them to do some rough measuring and walked around to the back of the house.

103 There was discussion about the provision of a quotation. Mr Hopkins asked him about payment or a deposit. Mr Garay said, “You will need to pay for the concrete when it is delivered, which will come off the price and then you don’t pay anything until the job is finished and then just give me a cheque for the rest.”

104 Mr Garay then returned to his vehicle, and Mr Hopkins and Ms Lodding got into theirs. They followed him to a street in Aberglasslyn, and there Mr Garay showed them a number of completed driveways. He said, “I have done these driveways,” and he described different styles of stencilling by reference to the finishes on those driveways. He showed them work being undertaken at one of the properties and they saw a man working on what appeared to be a pine retaining wall. Mr Garay said, “He is one of mine, the driveway is going in tomorrow.” In oral evidence, Mr Hopkins said that he could see that the driveway area was ready for a concrete pour. They then left the area, after Mr Garay said that he would call Ms Lodding that night about a quote.

105 This course of events gives rise to the fourteenth charge, that Mr Garay attended the residential premises at Lochinvar for the purpose of doing the design of any residential building work for Ms Lodding and Mr Hopkins.

106 Mr Garay rang Ms Lodding that evening to say that he had done the quote, that he could do the job for around $30,000, and that he could give them the quote and start the job on the following Monday morning (4 May). Ms Lodding said that she did not want him to start the job until they had received a written quote, and it was arranged that he would supply one to her at the property the next day. They met there as arranged, and Mr Garay removed what appeared to be a quotation book from his vehicle, tore out a quotation and handed it to her. He said, “I hope I am in with a chance, whoever you use make sure that they are licensed.” She said that she would call him about the matter.

107 The quotation was for $30,000. It showed the contractor as C J Redman Constructions, displaying a licence number, but it was signed by Mr Garay. The holder of that licence was Mr Colin Redman, director of C J Redman Constructions Pty Ltd. He gave evidence that, while he knew Mr Garay and had done some work for him, he had no knowledge of that quotation until he was contacted by Mr Bruinenberg. He deposed that the quotation was not issued on his behalf, and that Mr Garay was not acting as his agent with respect to any residential building work at that time.

108 This evidence is the basis of the fifteenth charge, that Mr Garay provided a quote to enter into a contract with Ms Lodding and Mr Hopkins to do residential building work at the Lochinvar property. The whole of their evidence is the foundation of the sixteenth charge: that between 30 April and 1 May 2008 Mr Garay represented to Ms Lodding and Mr Hopkins, expressly or impliedly, that he was a licensed builder.

109 It is convenient at this point to deal with charges 14 and 15. After I reserved judgment, I raised with counsel the question whether those charges on their face alleged breaches of the relevant orders, and invited further submissions. As set out above, the fourteenth charge is that Mr Garay attended the Lochinvar premises for the purpose of doing the design of residential building work, which is said to be in breach of order 2(b). That order prohibited him from “undertaking or doing” the design of any residential building work and, on the face of it, merely to attend premises for the purpose of doing such a design would not be in breach of the order.

110 The fifteenth charge, also set out above, is that Mr Garay provided a quote to enter into a contract with Ms Lodding and Mr Hopkins to do residential building work, which is said to be in breach of orders 1(b) and 2(c). Those orders prohibited him from “contracting with any other person or entity” to do residential building work. Merely to provide a quote to enter into such a contract would not amount in law to the formation of a contract, and that conduct would not amount to a breach of those orders.

111 In the event, the Commissioner sought to amend those two charges. The issue whether any amendments would be made under s 21 of the Criminal Procedure Act 1986 or s 64 of the Civil Procedure Act 2005 was raised but was not pursued in argument. It was accepted that, by one avenue or the other, I had the power to order the amendments.

112 The proposed amended charge 14 was in these terms:

The First Defendant is guilty of contempt of Court in that the First Defendant did, on 30 April 2008, attend the residential premises at [the Lochinvar address], New South Wales, and undertook or did the design of any residential building work for Sharon Lodding and Stephen John Hopkins, investigators of the Office of Fair Trading, knowingly in breach of order 2(b) of the Orders.”

113 It will be seen that this charge would allege that Mr Garay actually undertook or did the design of residential building work. Mr Sarginson relied on the evidence of Mr Hopkins and Ms Lodding of their discussion with Mr Garay about the replacement of fencing on the property, the positioning and flaring of the driveway, and his provision to them of the Concrete Technologies brochure. He also relied on their evidence that Mr Garay took them to see completed driveways at Aberglasslyn, and his description of various finishes for a driveway by reference to them.

114 Mr Sarginson submitted that, if that behaviour did not amount to “doing” the design of residential building work, it was at least “undertaking” to do so. He noted that the word “undertake” does not necessarily mean to actually perform a task. The definition in the 7^th edition of the Concise Oxford Dictionary includes to:

“bind oneself to perform, make oneself responsible for, … accept an obligation, promise, (to do) …”

115 Certainly, in the absence of evidence that a design was ever prepared, the evidence is incapable of establishing that Mr Garay “did” such a design. While acknowledging the various senses in which the word “undertake” can be used, its use in order 2(b) must be understood in the context of its use in orders 1(a) and 2(a), each of them prohibiting the undertaking of any residential building work. Clearly, those orders were directed to Mr Garay’s actual engagement in building work, whether by performing it himself or by co-ordinating and/or supervising it.

116 I am satisfied that order 2(b) was directed to his preparing a design or having some other person do so. There is no evidence that he did either of those things. Accordingly, as the proposed amended charge could not be established, the amendment would be futile and it is refused.

117 The proposed amendment to the fifteenth charge would leave the body of the charge unchanged but allege a breach of order 1(c), rather than 1(b) and 2(c). Order 1(c), it will be remembered, prohibited Mr Garay from advertising that he was willing, able or available to undertake residential building work. Mr Sarginson submitted that the provision of the quotation to Ms Lodding could amount to advertising for the purpose of that order. Clearly, in the light of my earlier conclusion about the use of the word “advertising” in that order, it could not. Again, to make the amendment sought would be futile and it is refused.

118 An amendment was also sought to the thirteenth charge, also alleging a breach of order 1(c). It is unnecessary to recite the proposed amendment or the purpose of it. I have already dismissed that charge, and it is sufficient to say that the amendment sought would have no bearing on the basis upon which I did so. That amendment also is refused.

119 Charges 14 and 15 must be dismissed. It remains to consider charge 16, that Mr Garay represented, expressly or impliedly, that he was a licensed builder. For that purpose, it is necessary to revisit Mr Redman’s evidence.

120 Mr Redman’s evidence was challenged in cross-examination. His affidavit conveys that he had limited professional contact with Mr Garay in or about April 2008. On one occasion he did excavation work for him and on another he bored holes for a retaining wall. His father, Keith Redman, did excavation work for Mr Garay, but he deposed that he only ever went to two sites himself. He also deposed that he had never done any residential building work for Mr Garay or any business associated with him.

121 In cross-examination, after being taken to mobile telephone records, he agreed that he had had numerous telephone conversations with Mr Garay between February and May 2008. He said that he was contacted by the Office of Fair Trading about the investigation in May 2008, at which time he had known Mr Garay for two or three months. He also agreed that towards the end of April and into early May 2008 Mr Garay was trying to form a business association with him.

122 During that time he signed a contract for a job at Medowie which Mr Garay had written and presented to him. That contract is not in evidence and, although it appears to have related to work with a bobcat, I do not know exactly what was the subject of it. He said that he had his own reasons for signing the contract and, although he knew at that time that Mr Garay could not undertake residential building work, he denied that that was the reason he signed it. Around that time he also travelled with Mr Garay to Jewells, a Newcastle suburb, to see if he was interested in taking on a job there, but he turned it down. He agreed that Mr Garay had told him that during April 2008 his father-in-law was not going to take on any new jobs as a builder, and he accepted that that was probably why Mr Garay wanted to form a business relationship with him. However, he denied that he was “happy for that to happen for a short time”.

123 It was also put to him that Mr Garay wished to involve him as the builder for work on a property at Aberglasslyn. Whether this was one of the properties which Mr Garay showed to Mr Hopkins and Ms Lodding is not clear. Mr Redman initially denied such an arrangement, saying that he had not signed a contract for a job at Aberglasslyn, although he later said, “I don’t believe I did.” Later in the hearing, he was recalled and shown a copy of a contract produced on subpoena by the owner of that property. That document bore his signature and the date “29/4/09” (which, presumably, should have been 2008). The description of the work to be done is not easy to read, but it appears to be fencing of some kind.

124 Mr Redman professed to have little or no memory of it. He acknowledged that the body of the document was written in a different hand from his own. There is no evidence of whose it was, but to me it resembles the handwriting on the quotation which Mr Garay gave to Ms Lodding. Mr Redman appeared to accept that Mr Garay was involved in some way in the work, and that it was he who delivered the contract to the owner. Nevertheless, when it was put to him that Mr Garay had been acting as his agent on the job, he replied, “I don’t believe that’s the case, no.” However, he was firm in his denial that there was any arrangement of that kind with Mr Garay in relation to the Lochinvar property. He maintained his account that he knew nothing of that property and did not authorise Mr Garay to issue a quotation in his name.

125 Mr Marshall submitted that Mr Redman’s evidence was unsatisfactory and that I could not rely on it. In particular, he noted the difference between his affidavit evidence and his oral testimony about the extent of his contact with Mr Garay in the first half of 2008, and he argued that Mr Redman’s evidence about the Aberglasslyn contract demonstrated a reluctance on his part to acknowledge their dealings in late April and early May of that year. He referred to the investigators’ evidence that Mr Garay told them that a licensed contractor would have to be engaged. The whole of the evidence, he said, raises a reasonable possibility that Mr Garay did collaborate with Mr Redman about the property and acted as his agent in securing his services as the builder for the work.

126 Mr Redman’s evidence is troubling. Under cross-examination, I did not find him a convincing witness. Why he would prevaricate about his dealings with Mr Garay between April and May 2008 I cannot say. However, that was how his evidence presented to me, particularly in relation to the Aberglasslyn contract. Mr Sarginson argued that, insofar as Mr Garay referred to the need for a licensed contractor, it was only in relation to the proposed driveway. As Mr Hopkins and Ms Lodding recounted the conversation, it could be understood that way. Nevertheless, the driveway appears to have been the most significant aspect of the work proposed, and one must wonder why Mr Garay would falsely represent himself as a licensed builder only in respect of the remainder of the work.

127 True it is, as Mr Sarginson pointed out, that Mr Garay did not tell the investigators in terms that he was unable to undertake residential building work and said nothing about Mr Redman. There is force in Mr Sarginson’s submission that, when they met at the property, Mr Garay presented himself generally as a “one stop shop”. For the most part, when explaining to Mr Hopkins and Ms Lodding what could be done on the property, Mr Garay spoke in terms of what “I” could do. Mr Marshall argued that this was no more than an imprecise use of the personal pronoun – as he put it, “the royal I” – and that it was not intended to convey that he himself would undertake the building work.

128 However that may be, the fact remains that Mr Garay did refer to the need for the work – whether the driveway or the whole of the work – to be done “with a licensed contractor …”. The use of the word “licensed” is significant, as it conveys an acknowledgement that he himself was not licensed. I am not prepared to rule out the possibility that there was a relationship between Mr Garay and Mr Redman of the kind suggested by Mr Marshall and that, at least, Mr Garay believed that he had Mr Redman’s authority to issue a quotation in the name of his company.

129 On the most benign view of it, Mr Garay’s behaviour was undoubtedly imprudent and, frankly, his conversations with Mr Hopkins and Ms Lodding paint him as something of a blowhard. The question, however, is whether it has been established that he represented himself to them as a licensed builder. Having considered the evidence carefully, I am left with a reasonable doubt about the matter. Charge 16 must also be dismissed.

Second statement of charges/charges 1-4: Rogers

130 These charges relate to the property of Ms Malvena Rogers at Toronto. Once again, the elements are identical to charges 2-4 relating to the Van Der Lindens and the equivalent charges relating to the Uebergangs and the Challinors. In each of the third and fourth charges, Mr Garay is alleged to have been acting in association with Gregory Bailey trading as AAA1 Bailz Bobcat, and with Cessnock Concrete Specialists Pty Ltd. The offence the subject of each charge is said to have been committed between 25 and 30 September 2008, although Mr Sarginson explained in final submissions that he relied primarily upon the events of 26 September and the ensuing days.

131 On 20 September 2008, Ms Rogers moved into a newly constructed home at Toronto. On 24 September she was approached by Mr Garay, who said that he was a landscaper who had worked in the area and offered to undertake a variety of landscaping tasks for her. He provided her with a written quotation in the amount of $18,000. This quote was simply under the name “Peter”, and it related to landscaping work of a kind which he was permitted to do. In the same evening, he rang her to say that he had another job in the area and could reduce that figure to $16,000. It was arranged that he should come to the property to discuss the matter with Ms Rogers, while her daughter would be present.

132 They met there on 26 September. They discussed the landscaping work, including the need to engage a bobcat to level the relevant areas at the front and back of the house. Mr Garay also said, “I can get someone to come out and do all the concreting for you which would include the patio area, spa area, and even do your driveway.” Ms Rogers asked how much more that would cost, and Mr Garay said that he would pace the job out and give her a total figure. He did so and said, “That will be $35,000 plus GST for the whole job which includes the patio area, the spa area, the driveway and all the paths. I will organise everything, you don’t have to worry about a thing. As the goods arrive you just pay them and take it off the total and then you pay me when you’re happy and the job is finished.” Ms Rogers told him to go ahead, and he said that he would have the bobcat there the following day to start the work and shape the driveway.

133 The next morning, Mr Garay arrived with a bobcat and introduced the driver to Ms Rogers as “Greg”. This was Gregory Bailey, the proprietor of AAA1 Bailz Bobcat. She saw Mr Garay showing Greg around the property and indicating what he wanted done. That afternoon, Mr Garay returned and had her write a cheque to “Bailz Bobcat Hire”. He said, “We will get into the concreting on Monday, so you can get your spa delivered and the driveway and paths done.”

134 On the Monday morning, 29 September, Ms Rogers rang Mr Garay. She told him that she had spoken to a couple of neighbours for whom he had done work, and was worried that he could not do the job. Asked who had expressed dissatisfaction with his work, she said that it was Mr Challinor (who, it will be remembered, also lived in Toronto). Mr Garay said that he would come to see her to explain the situation, but before he arrived she had phoned the Office of Fair Trading and spoken to Mr Bruinenberg.

135 Mr Garay arrived later in the morning, and drove her to the end of her street to show her four different driveways. He said, “I’ve done all those driveways, I’ve done retaining walls, gardens, turfing and steps. This is what I’m going to do for you.” She said that she was happy with that and they returned to her house, where she said that she did not want a driveway like the Challinor’s. Mr Garay replied, “No, I don’t use that concreter anymore. I use Gerry. I will give him a ring now.” He told Ms Rogers that he had been having trouble with the Department of Fair Trading, that he was under a restriction and that he was not going to do the concreting himself. He said, “You don’t pay me anything, you pay the people who do the job.”

136 Mr Garay made a phone call, and a short time later a man arrived at the home, whom he introduced as Gerry. Mr Garay showed Gerry the driveway area, and the areas where the spa bath and patio were to be positioned. Gerry told him that he could not do big jobs straight away, and Mr Garay replied, “Do the spa and patio area at the moment so they can get their spa in, and you can do the driveway later.” Gerry agreed, and measured up the spa and patio area.

137 This account, set out in Ms Rogers’ affidavit, suggests that she had no direct dealings with Gerry. However, in cross-examination she said that she did speak to Gerry and that he told her what his labour would cost. She did not say what that sum was but, whatever it was, she found it acceptable. Gerry also said, “… you should supply the concrete, the reinforcement, levelling sand, but I will do the labour.” She agreed that it was on that basis that she “let Gerry get on with it”.

138 Mr Garay said that they would be back in the morning to begin the concreting work. The following day, Gerry arrived and began setting up the formwork for the concrete at the rear of the property. A little later, Mr Bruinenberg and Ms Lodding arrived at the property. Mr Bruinenberg spoke to Gerry, who produced his business card. He then packed up his equipment and left. The card was for “Cessnock Concrete Specialists P/L” and, among other things, invited its recipient to call Gerry on a mobile number. Inquiries revealed that Gerry was Germano Oliveri and that he was a licensed concreter.

139 It is this evidence which gives rise to the three charges with which I am dealing. The second charge alleges that Mr Garay represented to Ms Rogers, expressly or impliedly, that he was a licensed builder. The third charge is that, by himself and/or in association with Gregory Bailey trading as AAA1 Bailz Bobcat and with Cessnock Concrete Specialists Pty Ltd, he contracted with Ms Rogers to undertake residential building work at the premises. The fourth charge is that, by himself and in association with Mr Bailey and Cessnock Concrete Specialists, he undertook residential building work at the premises.

140 The evidence of Mr Garay’s dealings with Ms Rogers is significantly different from that relating to his contact with the owners of the other properties. It is also somewhat confusing. Certainly, it is capable of supporting the inference that Mr Garay presented himself as the contractor who would co-ordinate the whole of Ms Rogers’ requirements, not just the landscaping work but also the concreting and related work for the driveway, patio, spa area and paths. It is that concreting work, of course, which is the subject of the charges. He told Ms Rogers that he would “organise everything”, and it was he who secured the attendance of Mr Bailey and Mr Oliveri. As I understand it, Mr Bailey’s function was to excavate not merely for the legitimate landscaping work but also for the construction of the driveway. Mr Garay provided Ms Rogers with his own estimate of $35,000 plus GST for the whole of the undertaking.

141 On the other hand, he told Ms Rogers that he would not do the concreting himself because he was under a restriction from the Office of Fair Trading, although he did not specify what that restriction was. He also told her that she was to pay the contractors who did the job directly, as she did in the case of Mr Bailey. That, of course, is not inconsistent with his exercising overall control of the work. However, it emerged from Ms Rogers’ cross-examination that, while Mr Garay introduced her to the concreter, Mr Oliveri, he left them to negotiate the terms upon which the work was to be done. Neither Mr Bailey nor Mr Oliveri gave evidence.

142 Mr Garay’s dealings with Ms Rogers were in September 2008. At least four months earlier, no later than early in May of that year, he was aware that he was under investigation by the Office of Fair Trading. It may be that he told Ms Rogers that he was under a restriction imposed by that office only because, being aware that she had been in touch with Mr Challinor, he feared that she already knew about the investigation. On the other hand, it would have been extremely foolish of him to have dealt with Ms Rogers in a way which he knew was in breach of any of Grove J’s orders at a time when he was aware that he was under departmental scrutiny.

143 There is certainly evidence from which it could be concluded that Mr Garay represented himself, at least impliedly, to Ms Rogers as a licensed builder and that, in association with Mr Bailey and Mr Oliveri’s company, he did contract with her to undertake a task which embraced residential building work. There is also evidence that, to the extent that he brought Mr Bailey and Mr Oliveri to the property and indicated to them what should be done, he undertook residential building work in association with them. However, having regard to all the circumstances, the question whether those elements are established beyond reasonable doubt has troubled me. Certainly, in his initial discussions with Ms Rogers about the work, he presented himself again as a “one stop shop”. However, the whole of the evidence does raise the question whether, yet again, he was using the “royal I”. It should also be noted that, unlike his dealings in relation to the other properties, no written quotation for the residential building work was supplied to Ms Rogers by him or by anyone associated with him.

144 That said, I am content to dispose of these charges on the basis that I am not satisfied of the requisite mental element for each charge. In essence, the residential building work involved was the concreting to be carried out by Mr Oliveri. Such excavation work as Mr Bailey performed for the purpose of laying the driveway was merely preparatory to it. What commercial arrangement Mr Garay had with those gentlemen I cannot say. However, I think it reasonably possible that he believed that he would not be in breach of any of the orders if he introduced Mr Bailey to Ms Rogers on the basis that she would pay him directly and, more importantly, if he introduced Mr Oliveri to Ms Rogers on the basis that she was to negotiate with him directly. Here again, although Mr Garay’s conduct was imprudent, I am left with a reasonable doubt about that element.

145 Accordingly, charges 2, 3 and 4 in the second statement of charges must be dismissed.

Conclusion

146 In the result, I find Mr Garay guilty of charges 2-4, 6-8 and 10-12 in the first statement of charges. All other charges are dismissed.

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Citations

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

Most Recent Citation

Cases Citing This Decision

1

Commissioner for Fair Trading v Peter Todd Garay [2010] NSWSC 218

Cases Cited

2

Statutory Material Cited

6

Hearne v Street [2008] HCA 36

Witham v Holloway [1995] HCA 3

Hearne v Street [2008] HCA 36

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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)