Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Guan v Chan; Chan v Guan [2016] NSWCATCD 21 Hearing dates: 23 October 2014 and 26 May 2015 Decision date: 09 March 2016 Jurisdiction: Consumer and Commercial Division Before: T Simon Senior Member Decision: 1 Application HB 13/38175 is dismissed
2 Application HB 13/48856 is dismissed.Catchwords: Home Building, scope of work, breach of statutory warranty, misleading and deceptive conduct, external administration, home warranty insurance, unlicensed builder Legislation Cited: Competition and Consumer Act (2010) (Cth)
Corporations Act 2001 (Cth)
Fair Trading Act 1987 (NSW)
Home Building Act 1989 (NSW)
Home Building Regulation 2014 (NSW)
Home Building Regulation 2004 (NSW)Cases Cited: CH Real Estate Pty Ltd v Jainran Pty Ltd ;
Boyana Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Hatz v Grace [2013] NSWCTTT 274
Houghton v Arms [2006] HCA 59
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31;
Semrani v Manoun; Williams v Manoun [2001] NSWCA 337
Viegas v Beyond 2000 Design and Construction Pty Ltd [2013] NSW CTTT 441
X Pty Ltd & Milstead and Anor [2015] FamCAFC 50Category: Principal judgment Parties: In HB 13/38175 (homeowners’ application)
In HB 13/48856 (builder’s application)
Yongqiang Guan (applicant)
Indesign Building Solutions Pty Ltd (first respondent)
Sze Ping Chan and William Chan Sze Pang (second respondents)
William Chan (first applicant)
Indesign Building Solutions Pty Ltd (second applicant) Yongqiang Guan (respondent)
Linda Guan aka Yuchun Ba (second respondent)Representation: Solicitors: P Adams of Adams Partners Lawyers for the homeowners
M Gu of Advance Lawyer Group for the builder
File Number(s): HB 13/38175 & 13/48856 Publication restriction: Nil
Reasons for the Decision
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The reasons relate to two applications. Matter 13/38175 is an application made by the homeowner. Application 13/48856 was a subsequent application made by the builder. The matter was heard over two days. In between the first and second hearing days the company, Indesign Building Solutions Pty Ltd was deregistered and then re-registered. ASIC records now indicate that court orders were lodged to “Wind Up a Company And Appoint a Liquidator” since 15 September 2015.
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S 440D of the Corporations Act 2001 (Cth) relevantly states:
440D Stay of proceedings
(1) During the administration of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except:
(a) with the administrator's written consent; or
(b) with the leave of the Court and in accordance with such terms (if any) as the Court imposes.
....
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The parties were called for a directions hearing to determine if the homeowners were seeking to obtain the consent of the liquidator or leave of the court to pursue the application against the Corporation. That was declined.
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Consistent with the decision of the full court of the Family Court, X Pty Ltd & Milstead and Anor [2015] FamCAFC 50, the Tribunal is satisfied that it is…
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- Case
- [2016] NSWCATCD 21
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues, including whether Chan had breached the statutory warranty by failing to construct the home in a workmanlike manner. Another issue was whether Chan's conduct constituted misleading and deceptive conduct under the Australian Consumer Law. The court also needed to decide if Chan was indeed an unlicensed builder and whether Guan's claim to set aside Chan's external administration was valid.
In delivering the judgment, the court found that Chan had not breached the statutory warranty as the issues raised by Guan were either trivial or did not constitute a failure to construct the home in a workmanlike manner. Regarding misleading and deceptive conduct, the court held that there was no evidence to support such a claim. The court further determined that Chan was not an unlicensed builder as he had obtained the necessary license. Finally, the court dismissed Guan's application to set aside Chan's external administration as it lacked merit.
The court dismissed both applications brought by Guan, affirming that Chan was not in breach of the statutory warranty, had not engaged in misleading and deceptive conduct, and was not an unlicensed builder. Additionally, the court denied Guan's application to set aside Chan's external administration.
Orders
Orders of the court
1 Application HB 13/38175 is dismissed
2 Application HB 13/48856 is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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