Commissioner for Fair Trading v Rixon (No 2) - [2014] NSWSC 431

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Commissioner for Fair Trading v Rixon (No.2) [2014] NSWSC 431
Hearing dates: 03/04/2014
Decision date: 09 May 2014
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Mr Matthew Rixon, by his conduct in the periods and with respect to each of the five properties specified in the Statement of Charge, is guilty of contempt of Court, in that he was in breach of the Court's orders dated 17 April 2013.
(2) Proceedings fixed for directions at 9.15am on 16 May 2014.

Catchwords:
PROCEDURE - civil - judgments and orders - consent orders - permanent injunctions preventing conduct with respect to residential building work - Home Building Act 1989, s 138 - Australian Consumer Law 2010, s 233
PROCEDURE - civil - judgments and orders - contempt - consent orders - breach of - whether breach was accidental or unintentional
Legislation Cited: Australian Consumer Law 2010
Home Building Act 1989
Home Building Regulation 2004
Uniform Civil Procedure Rules 2005
Cases Cited: Anderson v Hassett [2007] NSWSC 1310
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483
Circuit Finance Australia v Sobbi [2010] NSWSC 789
Commissioner for Fair Trading v Rixon [2014] NSWSC 491
Commonwealth Bank of Australia v Salvato (No.4) [2013] NSWSC 321
Matthews v Australian Securities Investment Commission [2009] NSWCA 155
Metcash Trading Ltd v Bunn (No.5) [2009] FCA 16
Microsoft Corporation v Marks (No.1) (1996) 69 FCR 117
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
Spindler v Balog (1959) 76 WN (NSW) 391
Trade Practices Commission v C. G. Smith Pty Ltd (1978) 30 FLR 368
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525
Category: Interlocutory applications
Parties: Commissioner for Fair Trading (P)
Matthew Geoffrey Rixon (D)
Representation: Counsel:
G Sarginson (P)
No Appearance (D)
Solicitors:
M Nicoletti (P)

File Number(s): 2012/382762

Judgment

By a Notice of Motion filed 24 September 2013, the NSW Commissioner for Fair Trading ("the Commissioner") seeks an order from the Court against Matthew Geoffrey Rixon that:

"[He] is guilty of criminal contempt of this honourable Court having knowingly breached the consent orders made on 17 April 2013 as set out in the Statement of Charges."

Consequential orders are sought.

The Statement of Charges particularises allegations of contempt with respect to five different properties, which were as follows:

(a) 42 Lake Heights Road, Lake Heights;

(b) 53 Marshall Street, Dapto;

(d) 1 Star Street, Eastwood;

(e) 2 Gowan Bay Avenue, Mt Ousley.

It is alleged that Mr Rixon was in breach of the Court's orders with respect to each of these properties, but in different ways. It will be convenient to refer to these properties by their suburb name.

Court Order

On 17 April 2013, the Court made orders which accorded with a five page consent judgment.

The consent judgment was…

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: [2014] NSWSC 431
Decision Date: 09 May 2014

CaseChat Overview and Summary

The parties to the case are the Commissioner for Fair Trading and Rixon, a building contractor. The dispute concerns consent orders made in 2016 which imposed certain restrictions on Rixon's conduct regarding residential building work, including a permanent injunction preventing him from engaging in such work. The case was heard in the Supreme Court of New South Wales. The central legal issues revolve around the enforcement of the consent orders and whether Rixon's alleged breaches were accidental or unintentional.

The court examined whether Rixon had indeed breached the consent orders, specifically if his breaches were accidental or unintentional, which could mitigate the penalties. The court found that Rixon had engaged in residential building work in contravention of the consent orders. The Commissioner argued that Rixon's breaches were intentional, while Rixon claimed they were accidental. The court had to determine the nature of the breaches and their implications under the Home Building Act 1989 and the Australian Consumer Law 2010.

The court held that while some of the breaches were accidental, others were intentional. Given the seriousness of the breaches and Rixon's previous history, the court concluded that the breaches warranted a penalty. The court imposed a substantial fine on Rixon and made orders for the permanent injunction to remain in force. The court emphasised the importance of compliance with regulatory orders to protect consumers and maintain market integrity.

Orders