Commissioner for Fair Trading v Rixon (No 2)
[2014] NSWSC 431
•09 May 2014
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 unintentionalLegislation Cited: Australian Consumer Law 2010
Home Building Act 1989
Home Building Regulation 2004
Uniform Civil Procedure Rules 2005Cases 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 525Category: 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;
(c) 150 National Park Avenue, Loftus;
(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 signed by the solicitor for the Commissioner, and by Mr Rixon himself. There were two parts to the orders. The first related to the provisions of the Home Building Act 1989, and in particular s 138. The second, related to the provisions of s 233 of the Australian Consumer Law 2010.
It is unnecessary here to set out the precise terms of each of the orders because the orders are set out in the Schedule to this judgment. However, in essentially identical terms, the orders prohibited Mr Rixon by means of a permanent injunction, from conducting, or being engaged in, or being involved in, in any capacity, whether directly himself, through the agency of another person or an employee, or through a company or other agency, from contracting to perform any residential building work, whilst ever he did not hold a valid contractor licence; representing by words or conduct that he or anybody with whom he was associated held a valid contractor licence or other appropriate certificate, when in fact that was not so; performing residential building work whilst ever he or any associated entity, was unlicensed; and finally, requesting or accepting payment for the performance or proposed performance of residential building work whilst ever he was not licensed.
The orders prohibiting Mr Rixon from doing residential building work also prohibited him from contravening various provisions of the Australian Consumer Law, in particular s 36, which required that a condition upon accepting payment or consideration for any building work was that Mr Rixon, or any entity through which he was working, had to have reasonable grounds for believing that the services would be able to be provided within the time specified in the agreement, or else a reasonable time. As well, the orders addressed the provisions of s 61 of the Australian Consumer Law, which required that the residential building work provided needed to be reasonably fit for the purpose for which the services were being acquired.
The orders were based on a document described as "Consent Judgment". It is regrettable, because it is productive of potential confusion, that parties choose to express their agreement in ways which are not procedurally accurate. There was no judgment actually entered in these proceedings. A judgment is the finalisation of a claim brought in proceedings where the end result is, in substance, an award of damages or else the rejection of a claim for an award of damages, at which point judgment for a defendant is entered. The original proceedings sought orders restraining Mr Rixon from behaving unlawfully. The resolution of such a claim is by the parties signing, or otherwise consenting to, short minutes of order, which enables orders to then be made by the Court, and incorporated into the Court record.
However, in this case having regard to everything which has happened, and in light of the matters to which I will in due course refer, I am satisfied that there was no confusion at all in the mind of Mr Rixon as to what the Court had done, and as to what he was, or was not, permitted to do.
The essence of the Court orders was that so long as he was unlicensed, Mr Rixon could not undertake "residential building work" as that term is defined in either the Home Building Act, or the regulations made under that Act.
Section 3 of the Home Building Act includes the following definition:
"Residential building work 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
(c) the repairing, renovation, decoration or protective treatment of a dwelling.
It includes work declared by the regulations to be roof plumbing work or specialist work done in connection with a dwelling and work concerned in installing a prescribed fixture or apparatus in a dwelling (or in adding to, altering or repairing any such installation)."
Clause 5 of the Home Building Regulation 2004 extends the definition of a dwelling for the purposes of s 3(1) of the Home Building Act so that it includes stairways, passageways and the like, which provide access to a dwelling, decks, porches, verandas, pergolas and the like, and fences and gates.
Each of the five properties with which these proceedings are concerned, were dwellings within the meaning of s 3 of the Home Building Act.
Notice of Proceedings and Court Orders
On 13 December 2012, Bellew J made orders with respect to the service of documents in the principal proceedings. His Honour ordered, in accordance with Pt 10.14(1) of the Uniform Civil Procedure Rules 2005 ("UCPR"), that the service of documents on Mr Rixon was to take place by email to his email address: [email protected].
On 8 April 2013, Mr Nicoletti, a senior legal officer with NSW Fair Trading, who has acted for the Commissioner throughout these proceedings, sent an email to Mr Rixon, to which was attached a copy of the proposed consent judgment. There was a follow up email on 9 April 2013, at 4.15pm. This was responded to promptly by Mr Rixon three minutes later, when he informed Mr Nicoletti that he was putting the signed original of the consent judgment in the post.
Later that day, Mr Rixon sent a further email to Mr Nicoletti in the following terms:
"Can we get the judgment finalised sooner, one thing I have noticed is how much courts and solicitors love to adjourn. It would be good to get finalised this week? Don't you think?"
Mr Nicoletti responded promptly by saying to Mr Rixon, by email, this:
"I think we can, but I will need your signed consent orders. When I receive them, I can attend to that pretty quickly."
This was responded to five minutes later, by Mr Rixon when he said:
"That be great ... " (sic)
On 17 April 2013, Mr Nicoletti provided to the Court the original of the copy of the consent judgment, which had been signed by Mr Rixon.
After the Court had made the orders and sealed the consent judgment, Mr Nicoletti sent, by email, a copy of the judgment handed down in Court, to Mr Rixon. The email, which was sent at 11.40am on 19 April 2013, said this:
"Please find attached a sealed copy of the judgment made by the Supreme Court on 17/4/2013.
I have provided Mr Michaelis with a copy of the orders. He will be available to hand them to you at the Newcastle office on Monday at Level 5, 400 Hunter Street, Newcastle 2300, until about 1pm.
Please let me know if you are able to attend that day and collect the sealed judgment. If you are unable to attend, I will make alternative arrangements to get a hard copy to you."
That email was sent shortly after Mr Nicoletti had spoken to Mr Rixon by telephone and advised him that the Supreme Court had made the orders contained in the consent judgment.
On 25 April 2013, Mr Rixon responded to that email of 19 April 2013 which attached a sealed copy of the judgment of the Court. The email read:
"Are you best the person to send legal notice and court documents to for the Department?"
The present proceedings were commenced on 24 September 2013. The proceedings were served personally on Mr Rixon on or about 2 October 2013. The proceedings were first returnable before the Court on 9 October 2013. Although Mr Rixon had been served, he did not attend Court on that day.
At about 4pm on 9 October 2013, Mr Rixon telephone Mr Nicoletti and asked him what had happened in Court. Mr Nicoletti told him that the Court had made orders requiring that he, Mr Rixon, file and serve any material by 23 October 2013, and that the matter had been relisted before the Registrar on 30 October 2013.
Mr Rixon told Mr Nicoletti that he did not attend the Court on the advice of his solicitors, who had told him there was no point and that nothing would happen. He also told Mr Nicoletti that he intended to fight the contempt charges.
That telephone conversation was followed up with a letter dated 14 October 2013, from Mr Nicoletti who set out in writing the orders which had been made. Mr Nicoletti arranged to have that letter hand delivered to Mr Rixon.
The delivery of the letter was clearly successful because on 16 October 2013, Mr Rixon telephoned Mr Nicoletti wanting to know why there was a "Fair Trading person" trying to serve him with the letter.
Mr Rixon informed Mr Nicoletti that service by email to the address that had been designated by Bellew J was sufficient for his purposes.
On 6 November 2013, by email, Mr Nicoletti advised Mr Rixon that the matter had been listed before the Registrar on 13 November 2013. This was responded to on 11 November 2013, by Mr Rixon by email, saying:
"I am aware of this and thank you for your correspondence. I have engaged Prime Lawyer to act in this matter. As I did not have legal representation at the point of signing your document, they are also looking at its merit. Wednesday will not be enough time for them to give me an accurate understanding or advise me of what we should do, there are now questions as to whether it is actually legal and if it goes too far against my constitutional rights. I would also like to wait on their assessment of whether to bring proceedings against the commissioner and fair trading for harassment. These as well as many others are now the questions we are looking at.
My intention is to send a letter or representation to his honor asking for a date set in February to enter pleas on the grounds my legal team cannot give me the proper advice at this point." (sic)
On the following day, Mr Nicoletti responded by email in the following terms:
"Thank you for your email and telephone call yesterday.
I am instructed that when the matter is next before the Court on 13 November 2013, the Department intends to seek a hearing date in February 2014.
I have taken the liberty of contacting Prime Lawyers who here advised that they are not at this stage formally representing you. Accordingly would you please clarify whether you are legally represented or not.
In relation to writing to the Court, that is a matter for you; however we ask that should you write to the Court, please provide us with a copy of your correspondence.
It is in your interests to personally appear at court on 13 November, or have a legal representative appear on your behalf, so that submissions can be made in relation to setting the matter down for hearing, your intended plea in relation to the contempt charges, whether or not you intend to file and serve any evidence and anything further you have to say to the Court about the proceedings." (sic)
On 13 November 2013, the Commissioner was represented before the Registrar by counsel. There was no appearance by Mr Rixon. The matter was fixed for hearing on 3 April 2014, and consequential orders were made so as to ensure its readiness for a final hearing.
At about 4.20pm on 13 November 2013, Mr Rixon and Mr Nicoletti spoke on the telephone. Mr Nicoletti's recollection, which I accept, is contained in an email which was written immediately after the phone call, which is to the following effect:
"I just got off the phone with Mr Rixon who indicated to me that he is willing to enter into some kind of 'mediation' if possible to make this matter 'go away'. He said he wants to start fresh. He also said that in relation to one of the consumers, he never received the money that we say he received, though did not identify which consumer that was. I told him I was interested in understanding this aspect and invited him to produce some evidence substantiating this claim. I said that as a model litigant we would certainly review that evidence and make a decision in relation to it.
I informed him of today's outcome and told him it was in his best interests to obtain legal advice about the proceedings. I also said that I would seek instructions in relation to his proposed 'mediation'. "
On 9 December 2013, Mr Nicoletti sent an email to Mr Rixon in which he formally notified him of the orders made by the Court on 13 November 2013, including that the proceedings were listed for hearing on 3 April 2014, with an estimate of two days. He also informed Mr Rixon that it was in his best interests to ensure that he appeared when the matter was listed for hearing, and that it would be in his interests to ensure that he was legally represented.
In response to that email, on 9 December 2013, Mr Rixon sent an email which said:
"Thanks Mark,
I am meeting with my legal team in January. I anticipate that it will offer yourself a meeting in february and a chance to drop your court proceedings before we go to court and have them thrown out. I just have a wrongful arrest coming before the Court which, under freedom of information suggest fair trading was involved. So this is all getting more complex now." (sic)
As the judgment which I delivered on 3 April 2014, and which has been published, shows, Mr Rixon knew well that the proceedings were listed for hearing on 3 April 2014: Commissioner for Fair Trading v Rixon [2014] NSWSC 491.
Before turning to the evidence, having been satisfied that Mr Rixon had been served with all of the requisite material, and knew the matter was listed for hearing, it is appropriate to examine the principles upon which a court proceeds when considering matters of contempt.
Legal Principles Dealing with Contempt of Court
I have recently set the principles out fully in Commonwealth Bank of Australia v Salvato (No.4) [2013] NSWSC 321. However, it is convenient, drawing upon what I there wrote, to set out a summary of the principles here.
The first principle is that the charge of contempt must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 at 529 per Brennan, Deane, Toohey and Gaudron JJ. It is for the Commissioner to satisfy the Court beyond reasonable doubt that Mr Rixon has committed a contempt of court.
Secondly, a contempt of court can be constituted by the breach of an order of the Court: Trade Practices Commission v C. G. Smith Pty Ltd (1978) 30 FLR 368 at 375; Spindler v Balog (1959) 76 WN (NSW) 391; Circuit Finance Australia v Sobbi [2010] NSWSC 789 at [10].
Thirdly, a person cannot be found guilty of a contempt of court for breach of an order, where the terms of the order are ambiguous: Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 at 515-6 per Owen J. The ambiguity must be such that it cannot be said what it was that required compliance: Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [56]-[57] per Beazley JA.
Fourthly, where the contempt of court consists of a failure to comply with an order of the Court, it must be demonstrated that the contempt was wilful, and not merely casual, accidental or unintentional: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98. However, it is not necessary for an applicant to prove that the contemnor intended to breach an order of the Court: see Anderson v Hassett [2007] NSWSC 1310; Mudginberri at 111; Matthews v Australian Securities Investment Commission [2009] NSWCA 155 at [16] per Tobias JA.
As Brereton J said in Anderson at [6]:
"The statement in Mudginberri (at 113) that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional, does not require proof of a specific intent, but permits an alleged contemnor to show by way of exculpation that the default was 'casual, accidental or unintentional' ... "
Finally, it is not necessary for an applicant to prove that the contemnor was aware that his or her conduct constituted a breach of the Court's order: Microsoft Corporation v Marks (No.1) (1996) 69 FCR 117 at 143 per Lindgren J; Metcash Trading Ltd v Bunn (No.5) [2009] FCA 16 at [9] per Finn J.
I will bear these principles in mind in considering the evidence which was put before the Court.
The Lake Heights Property
It is now necessary to consider the facts relied upon by the Commissioner to constitute the contempt, in accordance with the principles to which I have just referred.
In respect of the Lake Heights property, the Statement of Charge alleges that:
"1. The Defendant did, between 3 and 12 June 2013 inclusive, represent to Elisabeth Duke by advertisement in the 'Illawarra Mercury' newspaper that 'Waratah Decks' held a valid contractor's licence number 167341c, and was willing to perform residential building as defined in the Home Building Act 1989 (NSW) (HBA) at 42 Lake Heights Road Lake Heights NSW 2502, where neither he nor "Waratah Decks" held any current licence or certificate under the HBA, knowingly in breach of orders 1(b) and (c) and 2(a) of the Orders.
2. The Defendant did, using the name 'Andrew Gough', between 3 June and 15 June 2013 inclusive, represent to Elisabeth Duke by telephone and by email that he in association with 'Waratah Decks' was willing to supply and construct a deck at 42 Lake Heights road Lake Heights NSW 2502, this being residential building work as defined in the HBA, where neither he nor 'Waratah Decks' held any current licence or certificate under the HBA, knowingly in breach of orders 1(b) and (c) and 2(a) of the Orders.
3. The Defendant did, using the name 'Andrew Gough', on 6 June 2013, provide a quotation to Elisabeth Duke by email, that 'Waratah Decks' was willing to supply and construct a deck at 42 Lake Heights Road Lake Heights NSW 2502 for the cost of $8,808.00, this being residential building work as defined in the HBA, where neither he nor 'Waratah Decks' held any current licence or certificate under the HBA, knowingly in breach of order 2(d) of the Orders."
The evidence with respect to this property comes from the affidavit of Ms Elizabeth Duke. I accept the evidence of Ms Duke which was not challenged on the final hearing before me.
On or about 3 June 2013, Ms Duke saw an advertisement in the Illawarra Mercury Newspaper which had been placed by "Waratah Decks Pty Ltd". The advertisement in the newspaper carried a representation that Waratah Decks Pty Ltd was a licensed builder, holding the license number 167341c. She telephoned the number given in the advertisement and spoke to a male who told her his name was Matthew. I am satisfied that this person was the defendant, Mr Matthew Rixon. She indicated to Mr Rixon that she wanted to have a deck built at her home and enquired whether that work was within his capacity. He responded affirmatively. She said she would send him, by email to the address which he nominated, the terms of the council approval so that a quote could be prepared. Mr Rixon responded:
"That would be good. I'll get the other fellow to draft up a quote for you, he should be able to give you a price based on that."
On 4 June 2003, Ms Duke emailed a copy of the Development Application Approval to the address which she was provided with. That address was: [email protected].
On 6 June 2013, she received an email from "Andrew Gough", whose email address was [email protected]. The email contained one attachment being a single page document. That document was headed "Waratah Decks and Pergolas, Quotation". It contained details of the work which Ms Duke wished to have done, and priced the decking at $8,088 and provided two options for the railing around the decking, one being an aluminium balustrade at $2,704 and the other a timer rail at $1,780.
The document which was attached to that email, she later established, had been created on 5 June 2013, and saved by Matthew Rixon. She discovered this when examining the properties of the document, which are available to be observed by a standard manipulation of her computer. The entry "Last saved by: Matthew Rixon" is an automatically generated entry by a computer which is named Matthew Rixon.
On 10 June 2013, Ms Duke had a telephone conversation with Mr Rixon to discuss further details regarding the construction work on her home. Mr Rixon asked her:
"Did you get the quote I sent through?"
There was further email communication between Ms Duke and "Andrew Gough" between 10 June 2013, and 15 June 2013. On 15 June 2013, Ms Duke sent an email to Andrew Gough at [email protected] saying that she no longer wished to proceed with the work.
The advertisement which Ms Duke read in the Illawarra Mercury was obtained by investigators for the Commissioner for Fair Trading. It read:
"Waratah Decks P/L
Decks, Pergolas, Renovations, Maint. Fully insured and licensed. Free quotes. LIC: 167341c. Ph: 4201 9043."
The telephone number was traced to Mr Matthew Rixon.
The advertisement in the Illawarra Mercury was placed in the name of Waratah Decks. The address given to Fairfax Media was PO Box 48 Sutherland, NSW 1499. That post office box was rented by Mr Rixon.
According to company records held by the Australian Securities & Investment Commission ("ASIC"), Waratah Decks Pty Ltd was a company which was first registered on 3 June 2013. The director and secretary was "Mr Patrick James Harding", whose address was recorded as 135 Hill Street, Carrington NSW, and who is recorded as having been born on 1 October 1979.
All 100 shares in Waratah Decks are owned by Rix Holdings Australia Pty Ltd ("Rix Holdings").
Rix Holdings was also registered to commence operation from 3 June 2013. The director and secretary of Rix Holdings is also recorded as being "Mr Patrick Harding", but all 100 shares in the company are owned by Mr Rixon who gives his address to ASIC as PO Box 48, Sutherland, which was a post office box rented by Mr Rixon.
These records make it plain, and I am satisfied that Mr Rixon is the owner, and ultimately, is in complete control of Waratah Decks.
The company Rix Holdings is named, I am satisfied, after Mr Rixon.
According to evidence certified in accordance with s 131 of the Home Building Act 1989, as at 2013, none of Mr Rixon, "Mr Patrick James Harding", "Mr Andrew Gough", Waratah Decks Pty Ltd nor Rix Holdings Australia Pty Ltd were the holder of a contractor licence under the Home Building Act. As well, at all relevant times there was no licence numbered 167341c issued to any person, organisation or other entity.
According to records retained by the Roads and Maritime Services, no person by the name of "Patrick James Harding" with the date of birth of 1 October 1979, holds a driver's licence. Enquiries made with respect to the address 135 Hill Street, Carrington, which was the address given by "Patrick James Harding" to ASIC as his residential address, revealed that the present occupant, Ms Wakatama, had owned the property since about October 2011. Prior to her purchase of the property, Mr Rixon had rented it. Ms Wakatama has given evidence by affidavit, which I entirely accept, that prior to her purchase of the property at 135 Hill Street, Carrington, the house was owned by Andrew Nichols. He rented the house to Matthew Rixon.
Ms Wakatama says that since October 2011, she has regularly received mail at 135 Hill Street, Carrington in various names including "Mr Matthew Rixon", "Deck A Day", "Rixco Fencing" and "Rixco Building". She has returned those letters to their senders. Ms Wakatama did not know of "Mr Patrick James Harding", nor had she had any dealings with any of the companies of which he was the director and secretary, for which position he had given as his residential address, 135 Hill Street, Carrington. Ms Wakatama said that none of the companies or entities recorded with the ASIC records, nor Mr Rixon, nor "Mr Harding" had her permission to use her address at 135 Hill Street, Carrington.
All of the evidence satisfies me beyond a reasonable doubt that in the period between 3 June 2013 and 15 June 2013, Mr Rixon:
(a) represented to Ms Duke by means of the advertisement published in the Illawarra Mercury newspaper that Waratah Decks held a valid contractor's licence number 167341c, and was willing to perform residential building works, by construction of a deck or pergola;
(b) that Mr Rixon, using the assumed name "Andrew Gough", represented to Ms Duke that he, in association with Waratah Decks, was willing to supply and construct a deck at the Lake Heights property which was residential building work, and for which neither he, Mr Rixon, nor Waratah Decks, held any current contractor's licence;
(c) that Mr Rixon did, using the assumed name "Andrew Gough", provide a quotation to Ms Duke by email to the effect that Waratah Decks was willing to supply and construct a deck at the Lake Heights property for a cost of $8,808.
In conducting himself in these ways, I am satisfied beyond a reasonable doubt that Mr Rixon was in breach of Orders 1(b), 1(c), 2(a) and 2(d) of the orders of the Court made on 17 April 2013.
I am satisfied beyond reasonable doubt that in respect of the Lake Heights property and by reason of this conduct, that Mr Rixon is guilty of contempt of court.
The Dapto Property
In respect of this property at Dapto, the Commissioner brings the following charges:
"4. The Defendant did, on 11 June 2013 represent to Nelio Bisa by advertisement in the '"Illawarra Mercury' newspaper that 'Meadow Fencing' held a valid contractor's licence number 12416c, and was willing to perform residential building work as defined in the HBA, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 1(b) and (c) and 2(a) of the Orders.
5. The Defendant did, on 11 June 2013, using the name 'Andrew' provide a quotation by telephone to Nelio Bisa to install a fence for the cost of $2050.00 at 53 Marshall Street Dapto NSW 2530, this being residential building work as defined in the HBA, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 2(d) of the Orders.
6. The Defendant did, on 11 June 2013, using the name 'Andrew', request by telephone payment of $1000.00 in cash from Nelio Bisa, this being an upfront payment to install a fence for the cost of $2050.00 at 53 Marshall Street Dapto NSW 2530, being residential building work as defined in the HBA, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 1(f) and 2(f) of the Orders.
7. The Defendant did, on 13 June 2013, through the agency of another person, contract with Nelio Bisa to install a fence for the cost of $2050.00 at 53 Marshall Street Dapto NSW 2530, this being residential building work as defined in the HBA, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 2(b) of the Orders.
8. The Defendant did, on 13 June 2013, through the agency of another person, accept a payment of $1000.00 from Nelio Bisa, being an upfront payment to install a fence for the cost of $2050.00 at 53 Marshall Street Dapto NSW 2530, this being residential building work as defined in the HBA, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 2(e) of the Orders.
9. The Defendant did, between 13 June and 17 [June] 2013, through the agency of other persons commence the installation of a fence at 53 Marshall Street Dapto NSW 2530, this being residential building work as defined in the HBA, whether neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 1(d), 1(e) and 2(c) of the Orders."
The evidence with respect to this Dapto property was largely given by Mr Nelio Bisa. The property in question belongs to his mother-in-law. It is a residential house.
Mr Bisa's evidence is contained in an affidavit. I accept his evidence. Mr Bisa deposes that on 11 June 2013, he read an advertisement in the Illawarra Mercury which was in the following terms:
"MEADOW FENCING P/L
Supply and Install, Prompt Reliable Service, Best Price Guaranteed, Free Quote. LIC: 12416c. Phone: 42019043"
Mr Bisa telephoned the number and spoke to a male person who introduced himself as "Andrew". There was a discussion about the need for some fencing to be replaced at his mother-in-law's house and Mr Bisa sought a quote. "Andrew", the person to whom he was speaking, having obtained a lineal measurement of the existing fence and a description of its location, gave an estimate, or quote of $2,400, and said that he could undertake the work within a few days.
Mr Bisa discussed the matter with his wife and decided to proceed with the quote. He again telephoned the number in the advertisement for Meadow Fencing P/L, and spoke again with "Andrew". He bargained with "Andrew" and eventually agreed upon a price of $2,050 for the fencing work on the basis that Mr Bisa paid $1,000 in cash at the start of the job.
On Thursday 13 June 2013, having visited the bank to obtain the requisite funds, Mr Bisa arrived at his mother-in-law's house. He there saw a young man, about 22 years of age, undertaking some work on the fence. He had a conversation with that man which was to the following effect:
"I said 'I understand that I have to pay you some money'. He said 'Yeah, my boss said that you would fix me up'. I said 'No problem, I said I would give him $1,000 now and the rest when he is finished'. "
He handed the cash to the male undertaking the work.
There was further discussion about where the remnants of the fence could be dumped and how difficult the project was. Later on that day, at about 2pm, the young man left the property and drove in a northerly direction. A short time later he returned with a passenger in his vehicle. Mr Bisa and the passenger then had the following conversation:
"I said 'Hi'. He said 'Hi, I've been speaking with you on the phone'. I said 'How are you, it doesn't look like you're going to get to this job today'. He said 'Yeah, we'll be right'. I said 'I paid the young fella the $1,000 we agreed on'. He said 'Yeah, no worries, we'll organise for the materials to be brought down tomorrow. Have you thought about running some sleepers along the bottom of the fence to help protect it a little?' I said 'That's a good idea, go ahead with that as well'. "
Work was carried out on 14 and 15 June 2013, although it was incomplete.
On 17 June 2013, Mr Bisa returned to the property and encountered a different male worker. He told Mr Bisa that his name was Brandon. He said that his boss had sent him down to continue the work but he didn't have any tools or anything. Mr Bisa asked Brandon for the mobile telephone of his boss. He was given a number and telephoned it. A male person answered the phone and introduced himself as Matthew. Mr Bisa was of the view that this was the same voice as that of the person who had previously answered using the name "Andrew". Mr Bisa complained about the lack of progress on the job and pointed out that he had already paid a considerable sum of money.
At no time during his dealings with Meadow Fencing, or any of the people on site, was Mr Bisa supplied with any documentation, including contracts or receipts for payments. He was not shown any building licence, nor, it appears, was the job concluded.
Mr Bisa was handed a sheet of photographs by an investigator from the Commissioner for Fair Trading, and circled the individual whom he described as "Andrew". Other evidence satisfies me that the photo circled by Mr Bisa is that of the defendant, Matthew Rixon.
Other evidence in the proceedings satisfy me beyond reasonable doubt that Meadow Fencing Pty Ltd is a company, the shares in which are owned entirely by Rix Holdings. Patrick James Harding, to whom earlier reference has been made, is also shown as a director and secretary of the company. The company came into existence on 3 June 2013.
As I have earlier indicated, the entirety of the shares in Rix Holdings are owned by Mr Matthew Rixon.
The evidence also satisfies me that the licence number quoted in the advertisement had been allocated to a person (Geoffrey Lewis Friend) from 11 April 1991 to 11 April 2007, but only for various types of work on the interior of residential buildings.
After 20 June 2011, the licence was against issued to Mr Friend for carpentry work only. The evidence of Mr Friend, which accept, is that he has never met Mr Rixon, nor has he had anything to do with Meadow Fencing or any of the persons whose names have been used by Meadow Fencing. He has also denied giving permission to anyone to use his licence number in any way, including in advertisements in the Illawarra Mercury. He does not suggest that he ever visited the Dapto property.
I am satisfied from the evidence that Meadow Fencing Pty Ltd has at no time held a contractor's licence under the Home Building Act.
Clearly, the undertaking of fencing at a residential property is residential building work within the meaning of the Home Building Act and the Regulations under that Act.
The evidence establishes that the subscriber of the mobile telephone number which was answered by Matthew when telephoned by Mr Bisa, is owned by Mr Rixon's girlfriend, Ms Jacqueline Valvo.
I am satisfied of the following with respect to this property at Dapto:
(a) Mr Rixon represented to Mr Bisa by the advertisement in the Illawarra Mercury, that Meadow Fencing held a valid contractor's licence, and was willing and lawfully able to perform residential building work when, in fact, it did not hold any current licence or certificate;
(b) Mr Rixon, using the assumed name "Andrew", provided a quotation by telephone to Mr Bisa to install a fence for the cost of $2,050;
(c) Mr Rixon, using the assumed name "Andrew" requested payment of $1,000 in cash from Mr Bisa as an up front payment to install the fence at the Dapto property;
(d) Mr Rixon organised with a number of unidentified males to install a fence, accept the payment of $1,000 and undertake building work with respect to the fence at the Dapto property.
All of this was done by Mr Rixon at a time when he did not hold a contractor's licence, Meadows Fencing Pty Ltd did not own a contractor's licence and, so far as is demonstrated by the evidence, none of the other people involved in the work held a contractor's licence.
I am satisfied beyond reasonable doubt that with respect to the property at Dapto, Mr Rixon has been in breach of Orders 1(b), 1(c), 1(d), 1(e), 1(f), 2(a), 2(b), 2(c), 2(d), 2(e) and 2(f) of the Court's orders.
I am satisfied beyond reasonable doubt that Mr Rixon has committed a contempt of Court in these respects.
The Loftus Property
The Statement of Charge with respect to this property sets out a number allegations of contempt. They are as follows:
"10. the Defendant did, in June 2013 represent to Sarah Anne Parker by advertisement in Yellow Pages online that 'Meadow Fencing' was willing to perform residential building work as defined in the HBA, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 1(b) and (c) and 2(a) of the Orders.
11. The Defendant did, on 21 June 2013, using the names 'Andrew Gough' and 'Meadow Fencing' provide a quotation by email to Sarah Anne Parker to install a fence for the cost of $4260.00 at 150 National Park Avenue Loftus NSW 2232, this being residential building work as defined in the HBA, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 2(d) of the Orders.
12. The Defendant did, on 23 July contract in person with Sarah Anne Parker to install a fence for the cost of $4260.00 at 150 National Park Avenue Loftus NSW 2232, this being residential building work as defined in the HBA, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 2(b) of the Orders.
13. The Defendant did, on 23 July 2013, accept a deposit of $800.00 from Sarah Anne Parker for the installation of a fence for the cost of $4260.00 at 150 National Park Avenue Loftus NSW 2232, this being residential building work as defined in the HBA, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 2(e) of the Orders.
14. The Defendant did, between 25 and 29 July 2013, through the agency of other persons commence the installation of fence at 150 National Park Avenue Loftus NSW 2232, this being residential building work as defined in the HBA, where neither nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 1(d), 1(e) and 2(c) of the Orders.
15. The Defendant did, on 2 August 2013, accept a payment of $800.00 on behalf of Sarah Anne Parker for the supply of materials related to the installation of a fence for the cost of $4260.00 at 150 National Park Avenue Loftus NSW 2232, this being residential building work as defined in the HBA, whether neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 2(e) of the Orders."
The principal evidence in support of these allegations is from Ms Sarah Parker. Her evidence, given by affidavit, is unchallenged. I accept it.
Ms Parker lives at the address in Loftus. It is a four bedroom house with an existing timber fence across the back. In June 2013, she wished to have a new fence erected at her home. She consulted the on-line version of Yellow Pages, and found a company called "Meadow Fencing Pty Ltd. She contacted the number in the advertisement, and spoke to a male who identified himself as "Andrew Gough".
On 21 June 2013, following upon that telephone call, she received a quote by email from "Andrew Gough" at Meadow Fencing. That quote set out the scope of works, which was to demolish and remove the existing fence, supply and install 21 metres of new colour-bond fencing, replicate the work with respect to the side fence and remove all material from the site. The total quoted was $4,260. The address provided in that quote for Meadow Fencing was PO Box 48, Sutherland, which was the Post Office box rented by Mr Rixon. Meadow Fencing gave a licence number of 288824c on the quote that it supplied.
After attempting to contact Meadow Fencing by telephone, unsuccessfully, on 16 July 2013, Ms Parker sent an email to Meadow Fencing indicating that she wished to go ahead with the work and asking them to telephone her.
On 16 July 2013, she received a telephone call from a male person who did not identify himself. He said that it would be necessary for someone to come and pick up a cheque for the deposit, for the fencing work.
On 23 July 2013, a male person came to Ms Parker's workplace and said:
"Hi, I'm Matt from "Meadow Fencing". I have a contract and a schedule of payments."
Ms Parker was handed a document titled "Authority to Proceed" on the letterhead of Meadow Fencing, and she gave the male called Matt $800 in cash by way of payment of the deposit for the job.
She was provided with an order form which replicated the quote and, in particular, had the contact details of PO Box 48, Sutherland, and the licence number to which I have earlier referred.
On 25 July 2013, work commenced on the demolition of the old fence at the Loftus property. It continued for some days. On 29 July 2013, the labourers who were working on the job informed Ms Parker that they were not going to continue as they had not been paid. On that day, she was shown an article from the Illawarra Mercury newspaper which had a photo of Mr Rixon in it. She identified the person shown in that photograph as the person who had described himself to her as "Matt", when he came to collect the deposit.
On 2 August 2013, she paid a further $800 to Meadow Fencing and received a letter addressed to Mr Ben Parker, (her husband) in the following terms:
"The company, being 'Meadow Fencing' Pty Ltd, acknowledges Mr Parker of the above address has paid a total of $1,600 for materials delivered and 'Meadow Fencing' has no claim on these goods. 'Meadow Fencing' will also remove the waste bin at its cost within one week of the dated letter."
It was signed by "Andrew Gough".
Ms Parker was also shown a set of photographs and identified the person in photograph number 6 as being the male who called himself "Matt" and who came and collected $800 by way of cash deposit to install the new fence. This is the same photograph identified by Mr Bisa as being the male who came to the site of the property at Dapto, and oversaw the work there.
I am satisfied that the photograph is of Mr Rixon.
With respect to this property at Loftus, I am satisfied that Mr Rixon did each of the following things:
(a) placed an advertisement in Yellow Pages Online that "Meadow Fencing" was willing to perform residential building work, by way of fencing, when "Meadow Fencing" did not hold a contractor's certificate under the Home Building Act;
(b) on 21 June 2013, using the name "Andrew Gough" and "Meadow Fencing", the defendant provided a quotation by email to Ms Parker to install a fence at the Loftus property for a cost of $4,260;
(c) the defendant, Mr Rixon, entered into a contract with Ms Parker to install the fence in circumstances where he did not hold a contractor's licence, nor did "Meadow Fencing";
(d) he took the sum of $800 by way of deposit from Ms Parker for the installation of the fence at the Loftus property;
(e) he caused a number of individuals to commence work for the installation of the fence at the Loftus property, and caused that work to continue in the period from 25-29 July 2013;
(f) on 2 August 2013, he accepted a payment of $800 from Ms Parker for the supply of building materials relating to the installation of the fence.
Each of these things occurred at a time when neither Meadow Fencing nor Mr Rixon was duly licensed. The evidence does not suggest that any of the individuals on the site was licensed. By reason of this conduct, I am satisfied beyond reasonable doubt that Mr Rixon has been in breach of the orders 1(b), 1(c), 1(d), 2(a), 2(b), 2(c), 2(d), 2(e) of the Court's order made on 17 April 2013.
I am satisfied beyond reasonable doubt that in breaching these Orders, Mr Rixon has committed a contempt of court.
The Eastwood Property
The property at Eastwood was owned by Mr Branko Dedich. It is the subject of a set of charges. In respect of this property, the Commissioner makes the following allegations:
"16. The Defendant did, in June 2013 represent to Branko Dedich by advertisement in the 'Leader' newspaper that 'Meadow Fencing' was willing to perform residential building work as defined in the HBA, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 1(b) and (c) and 2(a) of the Orders.
17. The Defendant did, on 15 June 2013, using the names 'Andrew Gough' and 'Meadow Fencing' provide a quotation by email to Branko Dedich to install a pool fence for the cost of $3285.00 at 1 Star Street Eastwood NSW 2122, this being residential building work as defined in the HBA, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 2(d) of the Orders.
18. The Defendant did, on 18 June 2013, using the names 'Andrew Gough' and 'Meadow Fencing' by email contract with Branko Dedich by email to install a pool fence for the cost of $3285.00 at 1 Star Street Eastwood NSW 2122, this being residential building work as defined in the HBA, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 2(b) of the Orders.
19. The Defendant did, on 18 June 2013, using the names 'Andrew Gough' and 'Meadow Fencing', by email request a payment representing 20% deposit from Branko Dedich, for the cost of installing a pool fence to the value of $3285.00 at 1 Star Street Eastwood NSW 2122, being residential building work as defined in the HBA, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 1(f) and 2(f) of the Orders.
20. The Defendant did, on or about 18 June 2013, accept payment of $640.00 from Branko Dedich through a St George Bank Account BSB 12879, account number 486084354 representing approximately 20% deposit of the cost of installing a pool fence to the value of $3285.00 at 1 Star Street Eastwood NSW 2122, being residential building work as defined in the HBA, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 1(f) and 2(e) of the Orders."
Mr Dedich was the owner of the property at Eastwood, and the person who had the relevant dealings with the Defendant with respect to the building of a pool fence on the property. The property consisted of a four bedroom brick veneer house with a swimming pool.
Mr Dedich gave evidence by affidavit, the contents of which I entirely accept.
In June 2013, Mr Dedich observed an advertisement in the Leader newspaper, which was for Meadow Fencing, claiming that it was licensed, it gave free quotes and it would supply and install fencing. He telephoned the contact number of 9531 1376 and spoke to a male who identified himself as "Andrew".
Mr Dedich asked "Andrew" whether the company did pool fencing, and informed him that he needed a pool fence which complied with all the relevant regulations. Mr Dedich was invited to send an email to a number of email addresses of Meadow Fencing, with details of the job and with measurements and a sketch diagram of the work which needed to be done. That email was sent on 12 June 2013. No response was received and so, on 14 June 2013, Mr Dedich sent a follow up email.
On 15 June 2013, Mr Dedich received an email from Meadow Fencing Pty Ltd, apparently from "Andrew Gough". It attached a quotation for works, dated 13 June 2013, setting out the scope of works with respect to installing a number of identified panels and gates around the swimming pool, for a total cost of $3,285. The postal address given for Meadow Fencing was PO Box 48, Sutherland.
On 18 June 2013, Mr Dedich received a further email from "Andrew Gough" at Meadow Fencing, which read as follows:
"Attached is the authorisation for your works. We require a 20% deposit to get the ball rolling. Once we received that, we can order the material. We can install the job next Thursday and Friday."
The bank details for the payment were provided. Attached to the email was a document headed "Authority to Proceed" on the letterhead of Meadow Fencing which was required to be signed by Mr Dedich, and indicated a payment schedule for the completion of the work.
On 18 June 2013, Mr Dedich returned a signed form for the authorisation of the work, and later that evening electronically transferred from his bank account the sum of $640 to the bank account listed on the email sent by "Andrew Gough".
Enquiries undertaken by officers of the Commissioner have established that the account that was nominated by Meadow Fencing was with St George Bank, and was held by Mr Rixon in his name. On 18 June 2013, that bank account showed a credit of $640, having been transferred from Mr Dedich.
The work was arranged to commence on 20 June 2013, and be completed on 21 June 2013. Mr Dedich visited the property on 23 June 2013 and discovered that no work had in fact been carried out, and no materials had been delivered. He attempted to contact "Andrew" on the phone number which he had been given.
The contact was intermittent and promises were made as to when the work was to start and when it was to finish, and a variety of excuses were given as to why the work had not been commenced.
This continued through until about 23 July 2013, when Mr Dedich received a telephone call on his mobile telephone from a man who described himself as Matthew, whom I am satisfied is the defendant, Mr Rixon. Matthew said to Mr Dedich:
"I am taking over, Andrew has been sacked, and I'm fixing up all the outstanding work. He has left your file and a few others we are doing first. I will have your work done soon, may be 31 July or 1 August."
On 31 July 2013, Mr Dedich attended the site when no one from, or retained by, Meadow Fencing appeared. The same thing occurred on 1 August 2013. Although Mr Dedich attempted to contact Matthew on that day, he was unsuccessful. On the following day, 2 August 2013, he managed to speak to Matthew on the telephone and, although a promise was made to undertake the work on the following day, no such work was in fact undertaken.
No work was ever undertaken and, although he paid $640, Mr Dedich did not receive any refund.
With respect to the Eastwood property, I am satisfied that Mr Rixon engaged in the following conduct:
(a) he placed the advertisement in the Leader Newspaper in the name of "Meadow Fencing" indicating that it was available to undertake fencing work at a time when neither he nor "Meadow Fencing" had any contractor licence under the Home Building Act;
(b) that using the assumed name "Andrew Gough", he sent a quotation by email to Mr Dedich offering to install a pool fence at the Eastwood property;
(c) he entered into a contract, by email, with Mr Dedich to erect a pool fence at the Eastwood property;
(d) that he requested a payment of 20% deposit, the sum of $640, from Mr Dedich to undertake the work and then received that payment into his bank account with St George Bank.
I am satisfied beyond reasonable doubt that the conduct engaged in by Mr Rixon was in breach of Orders 1(b), 1(a), 1(f), 2(a), 2(b), 2(d), 2(e) and 2(f) of the Court's Orders made on 17 April 2013.
I am satisfied beyond reasonable doubt that in respect of the Eastwood property, Mr Rixon has committed a contempt of court.
The Mt Ousley Property
This property is owned by Ms Snushall. It is the fifth property in respect of which the Commissioner alleges that Mr Rixon has been guilty of contempt of court.
The Statement of Charge with respect to this property is as follows:
"21. The Defendant did, on 20 June 2013, represent to Jill Snushall by advertisement in the 'Illawarra Mercury' newspaper that 'Meadow Fencing' held a valid contractor's licence number 12416c, and was willing to perform residential building work as defined in the HBA at 2 Gowan Bay Avenue Mt Ousley NSW 2519, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 1(b) and (c) and 2(a) of the Orders.
22. The Defendant did, on 21 June 2013, using the name 'Meadow Fencing' provide a quotation by email to Jill Snushall to install a fence for the cost of $1525.00 at 2 Gowan Brae Avenue Mt Ousley NSW 2519, this being residential building work as defined in the HBA, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 2(d) of the Orders.
23. The Defendant did, on 24 June 2013, accept in person payment from Jill Snushall of $490.00 in cash representing a deposit for the cost of installing a fence to the value of $1525.00 at 2 Gowan Brae Avenue Mt Ousley NSW 2519, this being residential building work as defined in the HBA, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 2(d) of the Orders.
24. The Defendant did, on 24 June 2013, contract in person with Jill Snushall to install a fence for the cost of $1525.00 at 2 Gowan Brae Avenue Mt Ousley NSW 259, this being residential building work as defined in the HBA, where neither he nor 'Meadow Fencing' held any current licence or certificate under the HBA, knowingly in breach of orders 1(a) and 2(b) of the Orders."
The evidence of Ms Snushall was given by affidavit. I accept it. I am satisfied that it establishes the following matters beyond reasonable doubt.
Ms Snushall owns the Mt Ousley property. It is a three bedroom brick veneer house in which she lives. On 20 June 2013, she observed an advertisement in the Illawarra Mercury for Meadow Fencing. It was in the same form that has been referred to earlier. On that day she telephoned the number in the advertisement and spoke to a male who introduced himself as Matthew. She asked Matthew whether he could install a fence on her property in a particular part of her yard. He asked her to give him the measurements and type of fence, and he would provide a quotation over the telephone. She gave him the measurements and length, described the style, and he responded by saying "That will cost you $1,700". Ms Snushall said that she would think about it. Matthew responded: "If you let me know by tomorrow, I can give you 10% off".
On the following day, she telephoned the same number and again spoke to Matthew. She indicated that she wished to go ahead with the quote. He responded by saying he would email an invoice for the information on it, and once she paid the deposit, he could order the materials and get the job started. I am satisfied that the person named Matthew to whom she spoke on each of these occasions, was the defendant, Mr Matthew Rixon.
On 21 June 2013, Ms Snushall received an email from "Meadow Fencing Pty Ltd" attaching an invoice from Meadow Fencing.
On that day she telephoned Matthew and had a conversation about the need for the payment of a deposit. She asked Matthew how the deposit was to be paid. He responded that he would come around to her house and collect it on the following day. On 22 June 2013, as Matthew had not arrived, Ms Snushall telephoned him again. He said that he had visited the wrong address.
There was further conversation and, eventually, on 24 June 2013, Matthew turned up at Ms Snushall's workplace at about 11.30am. He said he was here to collect the deposit, and Ms Snushall handed him $490 in cash. She was then handed two documents with the heading Meadow Fencing, with her details in the customer section, and she observed that the document was also entitled "Authority to Proceed". She signed one of the copies and handed it back to Matthew, who acknowledged the receipt of it.
In the period from 25 June 2013 to 13 July 2013, Ms Snushall made numerous telephone calls to Matthew on a variety of numbers, enquiring as to what was happening about the work. She was proffered a series of excuses.
Eventually, on 4 July 2013, Matthew and a work colleague visited the property, but undertook no work.
On 26 July 2013, Ms Snushall's attention was drawn to the article in the Illawarra Mercury about Mr Rixon and his unlawful building work. She recognised the person in the photograph as the man to whom she had paid $490 when he visited her workplace.
I am satisfied that that photo is Matthew Rixon, and it was he who attended at her workplace and took her deposit.
At no time has any work been carried out on Ms Snushall's property, nor has she received the return of her deposit.
I am satisfied beyond a reasonable doubt, Mr Rixon engaged in the following conduct with respect to this property at Mt Ousley:
(a) that by placing the advertisement in the Illawarra Mercury stating that "Meadow Fencing" held a contractor's licence and was willing to perform residential building work was in breach of the Court orders;
(b) Mr Rixon, by using the name "Meadow Fencing", provided by email a quotation to Ms Snushall to install a fence at the Mt Ousley property;
(c) he accepted a payment in person from Ms Snushall of $490 representing a deposit for the cost of installing a fence at the Mt Ousley property; and
(d) he entered into a contract with Ms Snushall to install a fence at the property.
I am satisfied beyond reasonable doubt that the defendant engaged in conduct which was a breach of Orders 1(a), 1(b), 1(c), 2(a), 2 (b) and 2(d) of the Court's Orders which were made on 17 April 2013.
I am satisfied beyond reasonable doubt that the Defendant's conduct amounted to a contempt of Court.
Relevant Chronology
It was, of course, open to Mr Rixon, had he appeared, to have asserted that his conduct was unintentional or accidental.
Although that argument has not been made because Mr Rixon did not come to Court, it is appropriate to consider whether any of the conduct which I have accepted could have been accidental or unintentional. For the reasons which follow, I am satisfied that none of the conduct with respect to the five properties could be regarded as accidental or unintentional.
In the first place, as I have already found above, Mr Rixon well knew of the terms of the Court orders, and when they were made.
Secondly, Mr Rixon must have known that he did not have a valid contractor's licence under the Home Building Act. Equally, he must have known that the companies Meadow Fencing and Waratah Decks, did not hold a contractor's licence under the Home Building Act. This was not a matter in which it could be said that Mr Rixon or these companies once held a licence which had expired and he had not turned his mind to that expiration, or had forgotten about it. The plain fact is they had never held licences under the Act, and nor had he.
Thirdly, and importantly, the chronology of events surrounding the creation of the relevant companies is of importance.
The orders of the Court were made on 17 April 2013. "Meadow Fencing Pty Ltd" was first registered on 3 June 2013, as was "Rix Holdings Australia Pty Ltd" and "Waratah Decks Pty Ltd".
The first advertisements in the Illawarra Mercury were published on 4 June 2013 and in the days and weeks which followed. The advertisements for Meadow Fencing placed in the Illawarra Mercury, commenced on 4 June 2013, and continued in the days and weeks which followed.
The account at the St George Bank into which Mr Rixon asked Mr Dedich to transfer his deposit, was opened on 26 April 2013, but first used on 18 June 2013. PO Box 48 at Sutherland, which was the address to which most of the paperwork was in fact sent, was first leased by Mr Rixon on 1 May 2013.
On 4 June 2013, an advertisement was placed on a website called Gumtree, I am satisfied by the defendant, "looking for a qualified carpenter who is proficient in decks, pergolas, maintenance etc". The telephone numbers which were used for this advertisement were either those subscribed for by Mr Rixon or by his girlfriend.
Fourthly, as I have previously found, the name "Patrick James Harding" used as the director and secretary of all of the companies in this group, was a false name. I am well satisfied that this name was an invention of Mr Rixon, and together with the use of the address of Ms Wakatama, a house with which Mr Rixon was well familiar, demonstrates deliberate conduct on the part of Mr Rixon.
All of this material suggests that, after the Orders came into effect, Mr Rixon set about creating a network of companies to undertake residential building work, in circumstances where, unless proper investigation was undertaken, his connection with those companies would not be obvious. He used a number of false names to deal with customers, on behalf of these companies. Generally, the work was not done and the deposit which was given was lost.
I am well satisfied that the facts, matters and circumstances prove beyond reasonable doubt that Mr Rixon intentionally set out to avoid the consequence of the Court's orders by creating the network of companies to undertake the work of providing fencing and decks to residential premises, in circumstances where Mr Rixon did not hold any contractor's licence, and none of the companies were licensed.
Mr Rixon has been in breach of the Court's orders and I am satisfied beyond reasonable doubt that the charges of contempt are proved.
Penalty
I was not asked to impose a penalty before making findings with respect to Mr Rixon's conduct.
In particular, in light of his absence from the hearing, I would not be prepared to impose any penalty prior to giving Mr Rixon an opportunity to appear and put such submissions on the question of penalty as he wished.
Accordingly, all that is necessary at this stage is to find, that in respect of each of the charges contained in the Statement of Charge, that Mr Rixon conducted himself in the ways specified, that he was in breach of the Court's orders, and that I am satisfied that I should find him in contempt.
Orders
I make the following orders:
(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.
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SCHEDULE
ORDERS MADE BY THE COURT ON 17 APRIL 2013 BY CONSENT
1 Pursuant to Section 138 of the Home Building Act 1989 (NSW) ('the HBA'), the defendant is permanently restrained in New South Wales from conducting, or being engaged in, or being involved in, whether or not in a personal capacity, as a sole trader, as a trustee of a trust, as a beneficiary of a trust, in a partnership, through the agency of another person or chain of other persons, through an employee of the defendant, through a company or the agency of a company (whether or not that company is one of which the defendant is an officer or shareholder), through a "close associate" as defined in the HBA or Home Building Regulations 2004 ('the Regulations'), or in any capacity otherwise, the following conduct:
a) Contracting to perform any residential building work or any specialist work as defined in the HBA or the Regulations when the defendant, or any person or entity that the defendant is involved with as set out in 1. above does not hold a valid contractor licence in contravention of Section 4 of the HBA;
b) Representing (explicitly or implicitly), by words or conduct (including silence) that the defendant, or any person or entity that the defendant is involved with as set out in 1. above, holds a valid contractor licence, or valid supervisor or tradesperson certificate as defined in the HBA or the Regulations which is not, in fact, held by the defendant or person or entity that the defendant is involved with and seeking to perform residential building work or specialist work in contravention of Section 5 of the HBA;
c) Representing (explicitly or implicitly), by words or conduct (including silence) that the defendant, or any person or entity that the defendant is involved with as set out in 1. above, holds a valid contractor licence, or valid supervisor or tradesperson certificate as defined in the HBA or the Regulations which is not, in fact, held by the defendant or person or entity that the defendant is involved with in contravention of Section 17 of the HBA;
d) Performing residential building work, or specialist work as defined in the HBA or the Regulations, where the defendant, or any person or entity that the defendant is involved with as set out in 1. above, is unlicensed in contravention of Section 12 of the HBA;
e) Performing residential building work, or specialist work, as defined in the HBA or Regulations where the defendant, or any person or entity that the defendant is involved with as set out in 1.above, is unqualified in contravention of Sections 13 of the HBA;
f) Requesting or accepting any payment (by way of deposit, or otherwise) for the performance, or proposed performance, of residential building work, or specialist work as defined in the HBA or the Regulations by the defendant, or any person or entity the defendant is involved with as set out in 1. above where the defendant, or any person or entity that the defendant is involved with as set out in 1. above, does not hold a valid contractor licence, or valid tradesperson or supervisor certificate as defined in the HBA or the Regulations.
2. Pursuant to Section 233 of the Australian Consumer Law 2010 ('the ACL'), the defendant is permanently restrained in New South Wales from conducting, or being engaged in, or being involved in, whether or not in a personal capacity, as a sole trader, as a trustee of a trust, as a beneficiary of a trust, in a partnership, through the agency of another person or chain of other persons, through an employee of the defendant, through a company or the agency of a company (whether or not that company is one of which the defendant is an officer or shareholder), through a "close associate" as defined in Home Building Act 1989 ('the HBA') or the Home Building Regulations 2004 ('the Regulations') or in any capacity otherwise, the following conduct:
a) Representing (explicitly or implicitly), by words or conduct (including silence) that the defendant, or any person or entity that the defendant is involved with as set out in 1. above, holds a valid contractor licence, or valid supervisor or tradesperson certificate as defined in the HBA which is not, in fact, held by the defendant or person or entity that the defendant is involved with and seeking to perform residential building work or specialist work as defined in the HBA, in contravention of Section 18 of the ACL;
b) Contracting to perform any residential building work or any specialist work as defined in the HBA or the Regulations when the defendant, or any person or entity that the defendant is involved with as set out in 1. above does not hold a valid contractor licence, or valid supervisor or tradesperson certificate as defined in the HBA or the Regulations , in contravention of Section 18 of the ACL;
c) Performing residential building work, or specialist work, where the defendant, or any person or entity that the defendant is involved with as set out in 1. above, does not hold a valid contractor licence, or valid supervisor or tradesperson certificate as defined in the HBA or the Regulations, in contravention of Section 18 of the ACL;
d) Quoting to perform residential building work, or specialist work, where the defendant, or any person or entity that the defendant is involved with as set out in 1. above, does not hold a valid contractor licence, or valid supervisor or tradesperson certificate as defined by the HBA or the Regulations, in contravention of Section 18 of the ACL;
e) Accepting payment, by way of monies or otherwise, as a deposit for the performance of residential building work, or specialist work, where the defendant, or any person or entity that the defendant is involved with as set out in 1. above, does not hold a valid contractor licence, or valid supervisor or tradesperson certificate as defined in the HBA or the Regulations, in contravention of Section 18 of the ACL;
f) Requesting any payment or consideration for the performance of any residential building work or any specialist work when the defendant, or any person or entity that the defendant is involved with as set out in 1. above, does not hold a valid contractor licence or valid supervisor or tradesperson certificate as defined in the HBA or the Regulations, in contravention of Section 18 of the ACL;
g) Accepting any payment or consideration for any building work (within the meaning of residential building work or specialist work in the HBA, or the Regulations, or otherwise) or landscaping work, when the defendant, or any person or entity that the defendant is involved with as set out in 1. above, in circumstances where there are no reasonable grounds for believing that goods or services will be able to be provided within the time specified, or a reasonable time, in contravention of Section 36 of the ACL;
h) Accepting any payment or consideration for any building work, or proposed building work (within the meaning of residential building work or specialist work in the HBA or the Regulations, or otherwise) or landscaping work, or proposed landscaping work, when the defendant, or any person or entity that the defendant is involved with as set out in 1. above, where there are not reasonable grounds for believing that the goods or services can be provided within the time specified, or a reasonable time, in contravention of Section 36 of the ACL;
i) Engaging in conduct by way of the provision of building work (within the meaning of residential building work or specialist work in the HBA or the Regulations, or otherwise) or landscaping work when the defendant, or any person or entity that the defendant is involved with as set out in 1. above, does not provide services which are reasonably fit for the purpose for which the services are being acquired, in breach of the consumer guarantee in Section 61 of the ACL.
3. Each party is to pay their own costs of the proceedings.
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Decision last updated: 09 May 2014
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