Gray v Botz Contracting Pty Ltd trading as Port Stephens Shade Sails

[2025] NSWCATCD 36

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Gray v Botz Contracting Pty Ltd trading as Port Stephens Shade Sails [2025] NSWCATCD 36

Hearing dates:

24 February 2025

Date of orders:

2 June 2025

Decision date:

02 June 2025

Jurisdiction:

Consumer and Commercial Division

Before:

K Mortensen, Senior Member

Decision:

1 The respondent is to pay the applicant $29,680.00 on or before 17 June 2025.

Catchwords:

CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill — Guarantee as to due care and skill — Guarantee as to reasonable time for supply

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Competition and Consumer Act 2010 (Cth)

Fair Trading Act 1987 (NSW)

Cases Cited:

Briginshaw v Briginshaw [1938] HCA 34

TLK Transport Pty Ltd v Thornthwaite Pty Ltd t/as Yass Valley Mobile Mechanic [2014] NSWCATCD 147

Texts Cited:

Miller’s Australian Competition and Consumer Law Annotated, 2020

Category:

Principal judgment

Parties:

Applicant: The applicant

Respondent: Botz Contracting Pty Ltd trading as Port Stephens Shade Sails

File Number(s):

2024/00420759

Publication restriction:

Nil

REASONS FOR DECISION

BACKGROUND

1. In April 2024, the applicant accepted a quotation from the respondent to install a shade sail at the applicant’s commercial premises.

2. Over six months, progress was slow and the project remained incomplete. Towards the end of that period a second builder inspected the works, raising concerns about structural defects, including cracked bricks and improper fixings. Further complaints made by the applicant included missing powder coating on steel posts, risk of corrosion due to uncapped posts, and improper installation of the shade sail. Bracing installed by the respondent which anchored within the commercial premises’ carpark was considered a safety hazard by the applicant.

3. In October 2024, the applicant terminated the contract and blocked the respondent’s access to site.

4. By way of application made to the Tribunal 12 November 2024 and later amended, the applicant seeks $36,512.00 in compensation for refund of amounts paid to the respondent for the works, rectification costs, clean up costs and the costs of these proceedings.

JURISDICTION

5. Part 6A of the Fair Trading Act 1987 (‘FTA’) seeks to provide remedies for, and the straightforward resolution of, disputes concerning the supply of goods and services to consumers. Section 79I, within that Part, empowers consumers (as defined in Part 6A) to apply to the Tribunal for determination of a “consumer claim”. Section 79J gives the Tribunal jurisdiction to hear and determine a consumer claim that is the subject of an application under the Division, subject to the limitations specified in that Part.

6. I am satisfied on the evidence that:

1. The applicant is a “consumer” and the respondent is a “supplier” for the purposes of Part 6A;

2. The applicants’ claim seeks one or more of the remedies specified in s 79E (namely, an order for the payment of a specified sum of money) in respect of a claim that arises from the supply of services by the respondent to the applicant. Consequently, their claim is a “consumer claim” for the purposes of Part 6A: s 79E FTA.

3. The claim has a sufficient connection with New South Wales, because the services were supplied to the applicants in New South Wales: s 79K.

4. The claim has been lodged within the limitation period of 3 years after the cause of action giving rise to the claim first accrued: s 79L.

7. Consequently, I find that the Tribunal has jurisdiction to hear and determine the applicant’s claim. I am also satisfied that the relief sought by the applicants is within the Tribunal’s power under ss 79N-79V of the FTA.

EVIDENCE

8. In reaching the conclusions in this matter, the Tribunal has had regard to the following:

1. The material filed by the applicant on 28 November 2024 marked Exhibit A1;

2. The material filed by the applicant on 4 December 2024 marked as Exhibit A2;

3. The oral evidence and submissions of the parties at the hearing on 24 February 2025.

9. The specific documentary and oral evidence are described below in respect of relevant findings.

THE APPLICABLE LAW

10. The Australian Consumer Law is found in schedule 2 of the Competition and Consumer Act 2010 (Cth). Section 28 of the FTA applies the text of the Australian Consumer Law, as it exists from time to time, as a law of New South Wales. Where the Australian Consumer Law is referred to below, it is referred to as a law of New South Wales as applied by the FTA.

11. Part 3-2 of the ACL imposes a series of compulsory guarantees on all supplies of goods and services to consumers. Relevant to the instant application are the guarantees of sections 56, 60 and 52 ACL.

12. Section 267 of the ACL sets out the actions for remedies that can be taken against suppliers of services where there has been a breach of one of the consumer guarantees of the ACL.

Goods as Described

13. Section 56 ACL imposes a guarantee that goods will be as described. It provides;

56   Guarantee relating to the supply of goods by description

(1)  If:

(a)  a person supplies, in trade or commerce, goods by description to a consumer; and

(b)  the supply does not occur by way of sale by auction;

there is a guarantee that the goods correspond with the description.

Due Care and Skill

14. Section 60 ACL imposes a guarantee that services will be rendered with due care and skill. It provides;

60   Guarantee as to due care and skill

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

Supply Within a Reasonable Time

15. Section 62 ACL imposes a guarantee as to the time of completion. It provides;

62   Guarantee as to reasonable time for supply

If:

(a)  a person (the supplier ) supplies, in trade or commerce, services to a consumer; and

(b)  the time within which the services are to be supplied:

(i)  is not fixed by the contract for the supply of the services; or

(ii)  is not to be determined in a manner agreed to by the consumer and supplier;

there is a guarantee that the services will be supplied within a reasonable time.

SUBMISSIONS OF THE APPLICANT

16. The following oral submissions were made by the applicant during the hearing.

17. The applicant described her business as a boarding kennel for dogs and cats and stated that the shade sail was intended to provide shelter for clients and their animals during inclement weather.

18. An initial deposit of $9,000.00 was paid. No further payments were made in relation to the works.

19. Tendered at page 42 of the applicant’s bundle is a quotation for the cost of completing the respondent’s works at their present stage to completion to that of the respondent to the standard of a competent tradesman.

20. According to the applicant, a period of approximately six months had elapsed since April without completion of the project. Due to the ongoing delays, she arranged for another builder to inspect and assess the respondent’s work. That builder advised her that the work was not suitable to support the intended shade sail and would not bear the necessary loads. He also pointed out some issues that were in his view, various defects with the respondent’s work.

21. The applicant referred the Tribunal to a series of photographs tendered in evidence to illustrate specific issues identified. Among those were:

1. cracked bricks at the top of a wall (page 22 of the applicant’s bundle), which she stated were not present prior to the works. She believed these cracks compromised the structural integrity of the wall;

2. a fixing inserted through the top of a brick (page 24 of the applicant’s bundle), which she asserted was contrary to standard building practice;

3. crack filled with filler (page 23 of the applicant’s bundle), which she interpreted as an attempt to conceal damage;

4. installed steel posts which were not were not powder coated black, contrary to the finish specified for those posts by the original quotation (pages 31, 32, 30, 28, 43, and 49 of the applicant’s bundle);

5. metal steel circular hollow sections lacking caps (pages 29, 30, 28 of the applicant’s bundle), allowing water ingress which is conducive to corrosion; and

6. fixings screwed into roofing sheeting rather than into roof trusses (page 8 of the applicant’s bundle), resulting in water pooling and a failure of the structure to serve its intended purpose.

22. The applicant further stated that the respondent had initially installed the shade sail but removed it shortly thereafter due to high winds before adding additional structural support, which she interpreted as an indication that the original installation had been inadequate.

23. The applicant also expressed concern regarding a cable that the respondent extended to an anchor installed into the car park area as part of the additional bracing. She explained that the area was traversed by clients walking their dogs on leashes and that she regarded the cable to be a safety hazard.

24. Her evidence was that the cable was the “last straw” and, considering also the inordinate time taken by the respondent to attend to the works, she consequently decided, in or around mid October, that the respondent should not be permitted to continue with the works and terminated the contract.

25. She acknowledged that, following that decision she blocked the director of the respondent on Facebook, Messenger, and by telephone for several days.

SUBMISSIONS OF THE RESPONDENT

26. The following oral submissions were made by the director of the respondent on behalf of the respondent during the hearing.

27. The opening submission was that the respondent could not be held liable for the work done as the agreement for the works was not between the applicant and the respondent company but rather was between the applicant and himself personally.

28. In support of that submission, the respondent stated that the original quotation from Port Stephens Shade Sales was never formally accepted by the applicant, and that the company had never issued any invoice or contract. It was submitted that the applicant had paid the $9,000.00 deposit for the work into the personal bank account of the respondent’s director, rather than that of the respondent.

29. The respondent repeatedly made submissions to the effect that the work was incomplete and therefore could not said to be defective or faulty.

30. The respondent acknowledged that the posts currently installed are not powder coated in accordance with the original quotation, but qualified that acceptance by stating that there was a subsequent agreement with the applicant that the posts were not to be powder coated because the applicant was unsure of the colour.

31. The respondent also made inconsistent submissions at different times during the hearing. The first was that it was the intention to paint the posts with a two pack polyurethane paint and the second asserted that the installed posts were to be disassembled, taken off site to a powder coating factory, powder coated, and then returned to site and reassembled.

32. The respondent accepted that there was cracking to the brick on top of the gable into which he had fixed an anchor for the shade sail but said that it was limited to ‘one brick that’s come loose’. He attributed the cracking to installing the sail in windy conditions, causing the sail to flap uncontrollably and create movement on the steelwork.

33. Whilst the respondent acknowledged that he had directly bolted into brickwork, he stated that bolts, such as that shown entering a brick on page 24 of the applicant’s bundle, were merely a “location pins”. The respondent also claimed that the location was suitable for direct fixing as there was double skin brickwork with engaged piers on the inside skin.

34. The respondent stated that it was the intention to install a large bracket, 350mm wide and nearly a meter long, inside the building behind the brickwork, bolted into the bricks and tied down to the concrete floorslab, with a tongue extending up to return the uplift forces of the shade sail to the groundslab.

35. When asked by the Tribunal, the respondent confirmed no engineering details had been prepared and that there had been no load calculation for the impact of the shade sail load on the brickwork or slab.

36. When questioned about the cable anchored within the carpark complained of by the applicant, the respondent identified that cable as a ‘back stay’ required for structural support of the main post of the shade sail. Then respondent dismissed the applicant’s safety concerns relating to the cable by stating that “…no one will run into the cable. People are not that silly”. The respondent questioned later in the hearing as to how the cable, in terms of safety risk, was any different to a fence or gate.

37. Giving reasons for the slow delivery of the works, the respondent ultimately attributed the overall delay and incompletion to personal issues faced by himself as director of the respondent. He stated that work stopped because the applicant blocked him on social media and blocked his phone number, leaving no way for the respondent to contact the applicant to arrange access to finish the job.

38. The respondent challenged the quotation for repairs submitted by the applicant. He specifically argued that the cost included for a crane and rigger was unnecessary, as the posts could be lifted and stood by one man. However, when challenged by the Tribunal on that assertion, the respondent admitted that the posts were relatively large diameter circular hollow section posts that could be up to 4.8m long.

39. Notably, there was no documentary evidence tendered to support any of the respondent’s claims about agreements outside the quote or the personal issues said to have caused the delay, despite the respondent referring on several occasions throughout the hearing to the existence of messenger conversations relating to those issues.

FINDINGS

Who were the parties to the contract?

40. The respondent’s submission that the applicant contracted with the director of the respondent personally is inconsistent with the objective conduct and representations made at the time of contract formation. The offer to undertake the works originated from the respondent company, as evidenced by the quotation issued under the respondent’s name which is now in evidence.

41. There is nothing in evidence other than the oral evidence of the director of the respondent to support a finding that the contract was with a party other than respondent. The mere payment into a personal account, without more, does not override the express representation of the company as the contracting party by its quotation, especially where such a payment may have occurred for convenience or at the respondent’s request.

42. I therefore find that the parties to the contract were the applicant and respondent.

Did the Respondent Breach the Consumer Guarantees of s 56 ACL?

43. I find that the respondent has breached the guarantees of s 56 ACL that the goods supplied will be as described.

44. The quotation of the respondent described the steelwork of the structure for the sale as being powder coated black. There is nothing in evidence other than the oral evidence of the director of the respondent to support a finding that there was an agreement to vary the works to anything other than described. The respondent’s submission asserting that variation was strongly contested by the applicant at hearing.

45. Frankly, I find the respondent’s submission that there was an intention to build the shade sail structures in their entirety before dismantling them, transporting them off site for powder coating and then returning them for reassembly to be absurd. It also directly conflicts with a submission made at a different stage of the hearing that he intended to paint the installation in situ once completed.

Did the Respondent Breach the Consumer Guarantees of s 60 ACL?

46. I also find that the respondent has breached the guarantees of s 60 ACL that the services will be rendered with due care and skill.

47. A shade sail of the size described in evidence will doubtlessly impart a significant windload to any structure to which it is fixed. The admission by the respondent that the shade sail was to be built without any engineering calculation or design is most concerning, and indicative of a lack of skilful judgment. Over and above that, the bracing of the shade sail by cable affixed to an anchor within an area frequently traversed by the applicant’s customers whilst walking with leashed dogs presents a safety risk which is clearly indicative of a lack of due care.

Did the Respondent Breach the Consumer Guarantees of s 60 ACL?

48. I also find that the respondent has breached the guarantees of s 62 ACL that services will be supplied within a reasonable time.

49. The time for completion of the works does not appear to have been fixed by the contract between the parties.

50. In respect of the guarantees of s 62 ACL, The Explanatory Memorandum, Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth), states:

The time period that is reasonable will vary significantly depending on the nature of the services to be provided. The reasonable time to build a house will obviously be much longer than what is reasonable for providing a tree-lopping service. Accordingly, it is not possible to set out in the ACL what is reasonable and the courts and tribunals will need to consider all the circumstances that apply to a particular case to determine the time period that is reasonable.

51. In TLK Transport Pty Ltd v Thornthwaite Pty Ltd t/as Yass Valley Mobile Mechanic [2014] NSWCATCD 147 (‘TLK Transport’) the time taken to effect the first repairs (approximately two months) far exceeded the original estimate (two weeks). The Tribunal found that there was a failure to comply with the guarantee in s 62 of the ACL, at [164];

‘…the respondent delayed to commence work on the truck for a week after receiving the parts, and then took a further seven business days to address the problems. Given the amount of time which had already been lost, and the applicant’s pressing need to recover the vehicle – a fact known to the respondent – it seems unreasonable for the respondent to have delayed to commence work for this amount of time. This is particularly so as the respondent knew the date on which the parts would arrive by, and so could have scheduled the truck repairs to occur accordingly.’

52. I accept the applicant’s oral evidence that the respondent estimated a four week timeframe for completion of the works. Similarly to the situation in TLK Transport in which the Tribunal found that the two months taken to do the works under contract was far in excess of the two weeks estimated, I find that the almost six months taken in this case was far in excess of the four weeks estimated.

REMEDY

53. Section 267 of the ACL sets out the actions for remedies that can be taken against suppliers of services where there has been a breach of one of the consumer guarantees of the ACL. Relevantly, that section provides;

Action against suppliers of services

(1) A consumer may take action under this section if:

(a) a person (the supplier) supplies, in trade or commerce, services to the consumer; and

(b) a guarantee that applies to the supply under Subdivision B of Division 1 of Part 3-2 is not complied with; and ...

(2) If the failure to comply with the guarantee can be remedied and is not a major failure:

(a) the consumer may require the supplier to remedy the failure within a reasonable time; or

(b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time--the consumer may:

(i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or

(ii) terminate the contract for the supply of the services.

(3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:

(a) terminate the contract for the supply of the services; or

(b) by action against the supplier, recover compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services.

(4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

(5) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).

54. Section 268 of the ACL provides guidance as to whether the failure to comply with the service guarantee is a major failure.

268   When a failure to comply with a guarantee is a major failure

A failure to comply with a guarantee referred to in section 267(1)(b) that applies to a supply of services is a major failure if:

(a)  the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b)  the services are substantially unfit for a purpose for which services of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(c)  both of the following apply:

(i)  the services, and any product resulting from the services, are unfit for a particular purpose for which the services were acquired by the consumer that was made known to the supplier of the services;

(ii)  the services, and any of those products, cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(d)  both of the following apply:

(i)  the services, and any product resulting from the services, are not of such a nature, or quality, state or condition, that they might reasonably be expected to achieve a result desired by the consumer that was made known to the supplier;

(ii)  the services, and any of those products, cannot, easily and within a reasonable time, be remedied to achieve such a result; or

(e)  the supply of the services creates an unsafe situation.

55. I am satisfied that a reasonable consumer, aware of the extent and nature of the deficiencies I have found in the actions of the respondent, would not have acquired those services from the respondent. The failure to comply is therefore a major failure and the provisions of section 267(3) and (4) ACL apply.

56. Having regard for section 267(3) ACL I am satisfied that the applicant was entitled to terminate her contract with the respondent at the time that she took the necessary steps to terminate it.

57. The compensation sought by the applicant is;

1. the refund of money paid to the respondent in the amount of $9,000.00;

2. the cost to restore the property to the condition in which it was in prior to the commencement of the respondent’s works in the amount of $20,680.00;

3. loss of earnings and costs of these proceedings in the amount of $3,268.00; and

4. cleanup expenses in the amount of $3,564.00.

58. Under 267(4) of the ACL, a consumer is entitled to compensation for any “reasonably foreseeable loss or damage” suffered as a result of the failure to comply with the consumer guarantees. The respondent’s breaches of the ACL have left the respondent with a half finished, poorly built and unwanted structure which is neither of the finish or quality bargained for and which has been mechanically fixed to an existing building without seeking any advice from a structural engineer, in circumstances where it is likely to impart substantial wind loads to those fixings.

59. In those circumstances, the foreseeable loss to the respondent of the applicant’s breaches of the consumer guarantees of the ACL will include the cost of removing that structure and restoring the property to its original state. The losses will also include the deposit paid for works that did not benefit the applicant in any way.

60. The applicant has claimed $3,268.00 said to be compensation for costs of the proceedings and related loss of earnings. Both of those claims fall within the rubric of “costs” governed by the provisions of section 60 of the Civil and Administrative Tribunal Act 2013 which is in the following terms.

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following—

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

(4) If costs are to be awarded by the Tribunal, the Tribunal may—

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

(5) In this section—

costs includes—

(a) the costs of, or incidental to, proceedings in the Tribunal, and

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

61. I do not regard the circumstances of these proceedings as constituting “special circumstances.” Both the cost of filing the initiating application and the loss of income relating to preparation and appearance before the Tribunal are an ordinary and usual requirement in order to support a claim for compensation for breach of the ACL. It follows that that there is nothing “special” about the circumstances giving rise to those costs which would support an award of costs by the Tribunal and accordingly, that component of the applicant’s claim must fail.

62. Lastly, the applicant has claimed cleanup expenses in the amount of $3,564.00. The burden of proof rests with the applicant, who must establish their case to the civil standard, which is the balance of probabilities: Briginshaw v Briginshaw [1938] HCA 34. That requires the Tribunal to be satisfied that the asserted fact is “more probable than not” before a favourable finding can be made, and the finding must be grounded in evidence that satisfies the Tribunal of its reality. In circumstances where there is no evidence before the Tribunal capable of supporting this component of the applicant’s claim, the claim must also fail.

63. Orders shall therefore be made that the respondent is to pay the applicant the sum of $29,680.00, being the sum of;

1. compensatory damages in the amount of $20,680.00 awarded pursuant to section 267(4) ACL for the cost of the removal of the respondent’s works and restoration of the applicant’s premises to their precontractual condition; and

2. a refund in the amount of $9,000.00 awarded pursuant to section 267(4) ACL, equal to the deposit paid by the applicant to the respondent for works that were ultimately of no value to the applicant.

ORDERS

64. I therefore order the respondent to pay the applicant $29,680.00 on or before 17 June 2025.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 01 August 2025