Huo v Super Sheperd Pty Ltd

[2025] NSWDC 345

District Court

New South Wales

Medium Neutral Citation:

Huo v Super Sheperd Pty Ltd & Ors [2025] NSWDC 345

Hearing dates:

25 August 2025

Date of orders:

25 August 2025

Decision date:

29 August 2025

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

See para [57]

Catchwords:

CONSUMER LAW – misleading or deceptive conduct – whether statements made – whether misleading or deceptive - assessment of damages for breach of s 18 of the Australian Consumer Law

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 100

Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 4, 8 and 236.

Cases Cited:

Aon Risk Services Australia Limited v Australian National University (2009) CLR 175

Australian Securities and Investments Commission v Narain [2008] FCAFC 120

Blatch v Archer (1774) 98 ER 969

Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304

D’Cruz v Coutinho [2025] NSWSC 150

Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1

Google Inc v Australian Competition and Consumer Commission [2013] HCA 1; 249 CLR 435

Hanave Pty Ltd v LFOT Pty Ltd (1999) 43 IPR 545

Huo v Super Shepherd Pty Ltd [2025] NSWDC 286

SA (a pseudonym) v Hatfield [2025] NSWDC 56

Stav Investments Pty Ltd v Taylor [2022] NSWSC 208

Category:

Principal judgment

Parties:

Jingmin Huo (Plaintiff)

Super Shepherd Pty Ltd (First Defendant)
Chun Ting Lee (Second Defendant)
Tony Truong (Third Defendant)
Tony Truong Pty Ltd ATF the Tony Truong Family Trust (ACN 158 240 129) (Fourth Defendant)

Representation:

Counsel:
Plaintiff: Mr A Rizk
Defendant:
Second Defendant: Mr C T Lee (self-represented)

Solicitors:
Plaintiff: Kammoun Sukari Lawyers

File Number(s):

2024/00368523

Publication restriction:

Nil

Ex-Tempore Judgment

1. HER HONOUR: The plaintiff, by Statement of Claim as amended on 9 April 2025, brings proceedings for damages arising out of the circumstances in which she entered into contractual relations with the defendants individually, in circumstances where she was the owner of residential premises which she sought to renovate.

2. The plaintiff has already obtained a default judgment against the first defendant, Super Shepherd Pty Ltd (hereafter "Super Shepherd"), on 6 August 2025: Huo v Super Shepherd Pty Ltd [2025] NSWDC 286. The proceedings commenced this morning against the three remaining defendants.

3. Shortly before the hearing commenced, the third and fourth defendants entered into a settlement with the plaintiff. The sole remaining defendant is the second defendant.

4. The second defendant made an application for adjournment of the hearing, which I refused. My reasons for doing so are set out at the end of this judgment.

5. The circumstances leading to the bringing of these proceedings are as follows. Super Shepherd is an unlicensed and uninsured builder. It entered into a contract on 27 May 2021 to perform building works at the plaintiff's property for a fixed contract price inclusive of GST. That contract was varied on 17 June 2022, and the fixed contract price was changed to $683,493.13 inclusive of GST.

6. Between May 2021 and June 2022, Super Shepherd and the second defendant, a former director and secretary of Super Shepherd, made representations to the plaintiff the details of which are set out in full below. They were to the effect that Super Shepherd was licensed and that the building works undertaken under the contract and revised contract would be insured with HBCF insurance. The plaintiff paid Super Shepherd a total of $443,493.43 between 24 January 2022 and 19 September 2022 under the contract as varied. The plaintiff relied upon the licence and insurance representations at all relevant times in the contract and in particular when she paid Super Shepherd the sums totalling $443,493.43.

7. Regrettably, the building works were never completed by the builder. The job was abandoned after it was discovered by the plaintiff that the builder was uninsured and unlicensed. The plaintiff had to engage an alternative builder to complete the works, at significant cost, and as well as commence these proceedings to recover overpaid or unjustifiable claims.

8. I first note, as this is relevant to the circumstances of the refusal of the adjournment to the second defendant, that those proceedings were initially commenced in NCAT but transferred to this Court by reason of the claims exceeding the jurisdiction of that tribunal. Nevertheless, the case had reached the stage of a hearing date in NCAT and I note in particular exhibit XX which set out Mr Lee's counsel's outline of submissions in relation to the vacating of the hearing date by reason of his saying that he was not served. That is relevant because at that time Mr Lee was legally represented. His solicitor and barrister were successful in obtaining a vacation of a hearing date in NCAT following which the proceedings were transferred.

9. The claim, as set out in the amended statement of claim, needs to be set out with some care.

10. Paragraph 1 sets out that the plaintiff is the owner of the property and paragraph 5 sets out the date on which the plaintiff and builder entered into the agreement to perform work at the property. Paragraph 6 sets out how that agreement was varied to include additional terms in relation to practical completion and terms revising the contract. Paragraphs 16 to 17 set out the payments. Paragraph 20 sets out the representations and paragraph 22 sets out how following those representations, which were made to the plaintiff in the presence of her mother and a neighbour, entered into the contract.

11. Paragraph 20 of the Amended statement of Claim sets out the particular statements asserted to be misleading and deceptive. Some of these were oral statements made directly by Mr Lee and others were contained in the building contract or consisted of other representations in writing made by Mr Lee. These are summarised in the statement of claim as follows:

"20. Between about May 2021 and June 2022, Lee, for and on behalf of the builder and in his own personal capacity made representation to the owners ("the licence and insurance representations"):

(a) The Builder was a licensed builder.

(b) The building works under the building contract and revised building contract would be insured by HBCF insurance."

12. The Amended Statement of Claim then sets out how the licence and insurance representations were made in trade or commerce within the meaning of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law or "ACL"). These representations were in part future representations in that the licence was a continuing feature. These representations were misleading or deceptive, or likely to mislead or deceive because they were false.

13. First of all, at no relevant time was the builder a licensed builder. The builder had had a licence, but it was cancelled on 12 April 2018 and at no time after that was the builder ever licensed. Prior to the builder's licence being cancelled according to paragraph 25 of the statement of claim, it had a condition "only for contracts not requiring HBCF". At no time were the building works insured with HBCF insurance.

14. On 9 December 2022 the builder provided to the plaintiff an HBCF insurance policy dated 9 December 2022 which recorded the builder as being Yifeng Group Pty Ltd, and a contract price of $100,000. Not only was that of the wrong amount, but Yifeng Group had nothing to do with these transactions at any time on the evidence before me.

15. The statement of claim goes on to assert that the second defendant, Mr Lee, did not have reasonable grounds for making the licence and insurance representations and engaged in misleading or deceptive conduct in doing so. Alternatively, if he did not make those representations in his personal capacity, he was involved in a contravention of ss 4 and 18 of the ACL for the purposes of s 236 in that he was involved in the contravening conduct by reason of having made the representations. In fact, Mr Lee, in his affidavit material and indeed in his submissions, has not suggested at any time that he did not make those representations. He has never denied them and that is a significant factor in this case.

16. Whoever the builder may have been, and I note that Mr Lee attempted to put before me some material suggesting it was someone other than Super Shepherd, if he made representations about the builder, even if the builder were a complete fictitious entity, he would still be making the representations in his personal capacity.

17. That brings me to a consideration of the defence filed in these proceedings. The defence does traverse some of the claims but in particular in paragraph 1 he admits paragraph 3(a) of the statement of claim, and there is no traversal at all of the claims that he made the statements attributed to him. There is extensive documentary evidence of the statements made to which I now turn.

18. The plaintiff relies on the following affidavits:

1. the affidavit of Crystal Huo affirmed on 26 April 2024;

2. the affidavit of Hui Zhi Long affirmed 29 April 2024;

3. the affidavit of Qiuming He affirmed 29 April 2024;

4. the affidavit of Crystal Huo affirmed 7 March 2025;

5. the affidavit of Crystal Huo affirmed 5 August 2025.

19. In addition, I note there are reports from experts to which I need refer only briefly. None of the deponents was required for cross examination. Although the second defendant stated from the bar table that he wished to cross examine these witnesses, he had given no notification in circumstances where he should have done so.

20. The evidence relied on by the second defendant consists of his own affidavit together with the document he sought to have tendered which has been marked for identification, which is the so-called "Contract Addendum for 243 Bulwara Road, Ultimo, New South Wales, 2007" Courts often have a difficult situation where a party to proceedings suddenly produces a document which has never been seen before by the other side, and is not contained in the court book as a result, which is not merely uncertain as to provenance, but unsigned.

21. Whether the document in question is an unaudited statement of financial affairs of a corporation as often occurs in the case of security for costs applications, or insolvency proceedings, or for the purpose of determining what the contractual documents between the parties are, the fact remains that courts exercise a degree of resistance to the production of documents which are asserted to form a vital part of the contractual background when they are suddenly produced at the last minute.

22. I take into account that these proceedings actually reached a hearing stage in NCAT without this document being produced by anybody, in circumstances where, however briefly, the second defendant had legal representation but more importantly was aware of the ambit of the case put before NCAT by the plaintiff.

23. The plaintiff's lay evidence has been helpfully summarised for me by Mr Rizk in his written submissions, and I will refer to it only briefly. I have also had the advantage of reading Judge Cole's judgment, and I propose to adopt what her Honour has set out therein.

24. In brief, the plaintiff decided to carry out some renovations and she was talking to her neighbour about this when he suggested that she use Mr Albert Lee, the second defendant, who is known to him because he knew Mr Lee's brother. He understood Mr Lee had been involved in some distinguished building projects and he referred in particular to a development known as the Quanjude Restaurant, which I assume, from the way in which this is described, was an important building, the contract for which would be regarded as being desirable. The plaintiff was certainly impressed by this. She arranged a meeting and it was in the course of the subsequent meetings and contractual documentations that the representations were made. The plaintiff and her mother have both set out in their affidavits that during the meetings they had with Mr Lee he made statements such as:

1. "We are a licensed builder."

2. "All of our work is insured with HBCD Insurance."

25. The construction contract sent by Mr Lee on 21 May 2021 referred to a business name used by Super Shepherd of "Ping Pong Group Developments" as the builder and gave Mr Lee's details as the contact person. At page 264 of the court book, the second defendant sets out his role in all of this in the most emphatic terms, all of them in the plural. I note in particular:

"If you are willing to accept our proposal, kindly sign the attached "acceptance of fee proposal" form and email it back to us. Please note that we will require this document to be returned to our office prior to commencement of work. Upon your acceptance of this proposal by signing the attached, we will be able to commence the above work within five working days. Please note that this fee proposal shall remain valid for 30 days from the date of this offer. PPGD reserves the right to revise quotation after the nominated number of days.

We are available to meet and discuss this proposal further. Thank you for your consideration. Should you require any clarification please do not hesitate to contact the undersigned at any time on direct number [Mr Lee's mobile number] or [Mr Lee's email address]

Yours sincerely

PPGD

[Signature]

Alfred Lee

Development Manager

Nominated Architect - Alfred Lee

On behalf of Super Shepherd Pty Ltd and PPGD

Builder Licence LIC: 312951C."

26. That number is of course the number that had expired in 2018 and the company in fact not only was unlicensed, but, by virtue of it being unlicensed, could never effect any kind of valid insurance for the kind of work to be entered into by the plaintiff.

27. Of all of this the plaintiff was blissfully unaware. She thought she had found a builder who could carry out the work on her renovations and she believed that the company Super Shepherd was licensed and that the works would be covered by HBCF insurance. (see her affidavit at CB 65). She sets out that had she been aware that Super Shepherd was not licensed and the works not insured, she would not have engaged it (CB 65).

28. The plaintiff diligently attended to payments from 24 January 2022 onwards. On 8 June 2022 a construction certificate was issued (CB 319 to 320). It was at this stage that Mr Lee told the plaintiff that the builder could not complete the price for the initial contract price and it would have to be revised. It was substantially revised and the plaintiff was then issued with four invoices totalling $397,467.13, all of which she paid.

29. The plaintiff has categorically stated in her affidavit that had she known that this company was not a licensed contractor and the work was uninsured she would not have paid any of this money, but would instead have terminated the whole of the contractual relationship. It was not until some issues were raised by the local council that in or around November 22 the plaintiff came to learn that the works were not insured by HBCF insurance. No further works were then carried out by Super Shepherd and no further payments were made by the plaintiff. Nevertheless Mr Lee issued another progress claim on behalf of the builder which the plaintiff did not pay (CB 614-617). It was at about this stage that the plaintiff made the dismaying discovery that the builder was not licensed (CB 76). This meant that the plaintiff had to have the work completed by another company.

30. On 29 February 2024 the plaintiff entered into a contract with Felixland Pty Limited to perform the balance of the works that Super Shepherd had not completed, which cost $770,000 (see CB 695 and 718). The plaintiff had to pay other items as well. The company had damaged the adjoining property and she had to pay sums of $2,915 to Partridge Structural Pty Ltd and $1,980 to Pico Masonry. In addition, she had to rent property at another premises, while this work was going on. Between 1 August 2022 and 3 February 2025 she paid $105,512.86 towards rent and remained paying rent at $900 per week up until 27 May 2025 (CB 697 and 791 to 809).

31. It is not necessary for me to deal with the expert evidence as the correctness of the sums claimed has not been challenged.

32. I have set out above the very limited basis upon which the second defendant's affidavit sets out his position. He was not required for cross examination. His evidence in fact supports the plaintiff's claim by reason of his failure to traverse making these representations.

33. This brings me to a consideration of whether the elements of the claim for misleading or deceptive conduct have been made out. The plaintiff's claim pursuant to s 18 of the ACL is a straightforward claim falling within the well settled provisions of this cause of action. In his submissions, Mr Rizk has referred me to Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 concerning the two-step analysis. The first is whether the facts establish the conduct pleaded and the second is whether, as a question of fact, the conduct is false, misleading or deceptive, or likely to mislead or deceive. Regard should be had to the context and I take into account also the often expressed concern about the need for contemporaneous documentation to be looked at with particular care as it is often more reliable than the spoken word.

34. In the present case, I can be comfortable that the representations were made because not only have the three witnesses set out in their affidavits what was said, but it is consistent with all of the documentation. It is plain from the building contract itself that representations are made that Super Shepherd was a licensed builder able to carry out the works in circumstances where the work in question was not licensed and the company could not lawfully carry them out.

35. Mr Lee's sole ground for challenge appears to be whether he was an agent or employee of the builder at the time that the representations were made. I have set out above the many sources in both the contractual documentation and correspondence where his representation of himself as the representative of Super Shepherd appears in the context of his use throughout of the word "we". The ordinary reasonable person reading the contractual documents would consider that this is a representation that Mr Lee makes not only on behalf of the company but effectively on his own behalf. Why else would he use the word "we" so often?

36. The fact that there is more than one person making the representation as a result is not a difficulty for the Court. As Ward CJ in Eq as her Honour the President of the Court of Appeal was then, said in Stav Investments Pty Ltd v Taylor [2022] NSWSC 208 at [528], "If a group of persons engage in conduct that is misleading or deceptive, they may be principally liable for that conduct, even if they were acting as agent for a company." I also note the judgment of Australian Securities and Investments Commission v Narain[2008] FCAFC 120 at [94] to [97] which is as follows:

" First, the High Court has followed the House of Lords in holding that in the world of tort law the status of a person as an employee or director of a company does not divest him or her of personal liability for wrongful acts committed in that capacity; the same applies under s 52 of the Trade Practices Act and other statutory analogues: Houghton v Arms at [40]; Standard Chartered Bank at [20], [39]–[40].

This view had already been recognised by the High Court in Hamilton v Whitehead (1988) 166 CLR 121 at 128. Mason CJ, Wilson and Toohey JJ observed that it is a logical consequence of Salomon’s Case that one person may function in dual capacities. See also Houghton v Arms at [46].

Second, the question in each case is whether all of the elements of the contravention are made out against the individual or whether he or she merely acted as a corporate organ, binding the company but not the person individually: Cleary v Australian Co-Operative Foods Ltd (Nos 2 & 3) (1999) 32 ACSR 701 at [54], [56] and [57]; Pico Holdings Inc v Voss [2004] VSC 263 at [157]; Genocanna Nominees Pty Ltd v Thirsty Point Pty Ltd [2006] FCA 1268 at [297]–[305].

Third, as the authorities referred to in the previous paragraph make clear, it is a question of fact in each case whether all the elements of the contravention are made out: see also Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 6) (2007) 63 ACSR 1 at [1056]-[1057]."

37. Mr Rizk submits and I accept that this decision is a good example of the circumstances in which an employee may be personally liable for misleading or deceptive conduct. In ASIC v Narain, Mr Narain was held to have personally engaged in misleading or deceptive conduct because he drafted and approved the content of the ASX announcement which he authorised for publication that was held to be misleading.

38. As to the question of whether Mr Lee is himself considered to be the maker of a representation, I note also the observations of the High Court in Google Inc v Australian Competition and Consumer Commission [2013] HCA 1; 249 CLR 435 at [9] to [15] which are as follows:

“Fourth, s 52 is not confined to conduct which is intended to mislead or deceive. A corporation could contravene s 52 even though it acted reasonably and honestly[11]. However, as Mason ACJ, Wilson, Deane and Dawson JJ observed in Yorke v Lucas[12]:

"That does not ... mean that a corporation which purports to do no more than pass on information supplied by another must nevertheless be engaging in misleading or deceptive conduct if the information turns out to be false. If the circumstances are such as to make it apparent that the corporation is not the source of the information and that it expressly or impliedly disclaims any belief in its truth or falsity, merely passing it on for what it is worth, we very much doubt that the corporation can properly be said to be itself engaging in conduct that is misleading or deceptive."

In the courts below, there was some discussion of an early case, Universal Telecasters (Qld) Ltd v Guthrie[13]. Guthrie concerned the corporate proprietor of a television station which had been convicted on a charge under s 53(e) of the Act in connection with the broadcast of an advertisement, sourced from one of its customers, which contained a misleading statement concerning the price of certain motor vehicles. A majority of the Full Court of the Federal Court (Bowen CJ and Franki J; Nimmo J dissenting) found that the corporation had successfully established a defence under s 85(3) of the Act, and quashed the conviction. However, all members of the Full Court found that, by broadcasting the advertisement, the corporation had itself made the misleading statement – although, given the result, the opinions of Bowen CJ and Franki J on this issue were obiter dicta. On the question of whether an intermediary broadcasting a statement on behalf of another can be said to "make" the statement for the purposes of s 53(e), Bowen CJ said[14]:

"where there are express words of adoption or exclusion, this may, perhaps, be a proper line to draw. If so, then logically it would seem difficult to distinguish the case where, by necessary implication the statement was made for or on behalf of another. These will be matters for decision when an appropriate case arises ...

The fact that a statement is clearly an advertisement for a particular advertiser would not seem to constitute a sufficient basis in the circumstances to justify a holding that the statement was not made by the television station.

... Even if it be proper to distinguish statements, on the basis they are expressly or by necessary implication statements of the advertiser and not of the television station, the statement in this case is not seen to be such a statement."

In Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd[15], the Full Court of the Federal Court (Bowen CJ, Lockhart and Fitzgerald JJ) considered Guthrie in the context of an alleged contravention of s 52 of the Act arising from the publication of several newspaper articles. The members of the Full Court recognised that a newspaper's publication of material encompasses both the making of representations and the passing on of the representations of others[16]. Their Honours found that the publication of an inaccurate statement of another conveys an essentially different meaning from that conveyed by the original statement (unless the original statement is adopted by the publisher), and that mere publication of the statement will not necessarily amount to adoption by the publisher[17]. This approach presaged the formulation of the principle established by this Court in Yorke v Lucas[18]. It also implicitly qualified the Full Court's apparent support in Guthrie for the proposition that the mere fact that a broadcaster is obviously not the source of a misleading advertisement may not be sufficient for the broadcaster to avoid a contravention of s 52. In any event, the Full Court in Global Sportsman noted that Bowen CJ had made it clear in Guthrie that it was necessary to refer to all the facts of a particular case, including the content of an advertisement, before deciding whether an intermediary broadcaster had made any misleading statements contained in the advertisement of another[19].

In a subsequent case, Gardam v George Wills & Co Ltd[20], which concerned a defendant who supplied goods with an anonymous label containing product information, French J said[21]:

"The innocent carriage of a false representation from one person to another in circumstances where the carrier is and is seen to be a mere conduit, does not involve him in making that representation ... When, however, a representation is conveyed in circumstances in which the carrier would be regarded by the relevant section of the public as adopting it, then he makes that representation. It will be a question of fact in each case".

Gleeson CJ, Hayne and Heydon JJ further explained the correct approach to intermediaries in Butcher[22]. Butcher concerned an alleged contravention of s 52 by a real estate agent who had incorporated an inaccurate survey diagram supplied by the vendor of a property into an advertising brochure, and provided that brochure to potential purchasers of the property. Gleeson CJ, Hayne and Heydon JJ found that the agent had not contravened s 52 because he had done no more than communicate the vendor's representation to purchasers without adopting or endorsing it[23]. Their Honours adopted the principles stated by Mason ACJ, Wilson, Deane and Dawson JJ in Yorke v Lucas[24], and said[25]:

"In applying those principles, it is important that the agent's conduct be viewed as a whole. It is not right to characterise the problem as one of analysing the effect of its 'conduct' divorced from 'disclaimers' about that 'conduct' and divorced from other circumstances which might qualify its character."

Their Honours went on to say that the conclusion in Butcher flowed from the nature of the parties, the character of the transaction and the content of the brochure[26].

It has been established in relation to intermediaries or agents that the question whether a corporation which publishes, communicates or passes on the misleading representation of another has itself engaged in misleading or deceptive conduct will depend on whether it would appear to ordinary and reasonable members of the relevant class that the corporation has adopted or endorsed that representation[27]. It has also been established that, if that question arises, it will be a question of fact to be decided by reference to all the circumstances of a particular case[28].” [citation omitted]

39. I am satisfied on the evidence before me that Mr Lee made the representations in a context where he was the only person the plaintiff dealt with on behalf of the builder, with whom she had discussions in the Mandarin language, where he was the face of the company and where he was the person whose email and phone number were provided to her. He was not merely providing information such as passing on a booklet. He was making positive representations and telling her that if she had any inquiries she should ring him on his mobile phone number, or contact him at the email address he gave. There is no suggestion in any of this evidence that he is a mere conduit for information as an employee of any particular corporation, and I interpolate that the belated claim made by Mr Lee that Super Shepherd was not the builder but some other company was would make no difference to his liability for this reason.

40. There is other conduct which would be of a compelling nature in terms of being focused on contemporaneous and historical documentation. This includes the fact that Mr Lee had been involved in the builder's operations for the period from 2013 onwards, that he was the primary representative of the builder in its dealings with the plaintiff, and that he had not adduced any evidence to suggest that he was unaware of the fact that the builder was unlicensed and that the work would accordingly be uninsured.

41. Mr Rizk draws my attention to Blatch v Archer (1774) 98 ER 969. He also draws my attention to the recent decision of Hammerschlag CJ in Eq in D’Cruz v Coutinho [2025] NSWSC 150 at [98] where his Honour said that the Court would find it inconceivable that a person in Mr Lee's position would not have known that the company was not licensed at the time of making the representations, which meant inevitably that it could not obtain HBCF insurance. He also would have known thereafter that Super Shepherd had not obtained a licence and had not thereby obtained insurance.

42. The remaining issue in relation to the claim is the question of reliance. There is no challenge to the pleading of reliance in the pleadings or affidavit and Mr Rizk tells me he does not understand this question to be in dispute. No direct evidence is required and it is very often an inference drawn as opposed to being proved by direct evidence, as Kiefel J noted in Hanave Pty Ltd v LFOT Pty Ltd (1999) 43 IPR 545 at [555] to [556].

43. The impugned conduct has to make a contribution to the decision taken by the plaintiff to act in the particular matter which I am satisfied is the case here. The representations went to the very heart of the contract and could not be viewed as being trivial or unimportant. The decision to pay so much money to a builder in circumstances where that builder needed to be licensed to do the work and obtain insurance would be central to the contract. Liability I am satisfied is made out and this brings me to the question of damages.

44. As to damages generally, I note the Court should determine how much worse off the plaintiff is as a result of entering into the transaction which the representation induced her to enter than she would have been had the transaction not taken place: Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1 at [12]. I note the careful way in which this topic has been addressed by Judge Cole in her judgment and I propose to adopt the same approach here and award the plaintiff the sum of $779,798.29 plus pre judgment interest which I will leave it to the plaintiff to calculate.

45. That calculation is based on the assumption that had the misleading or deceptive conduct not occurred, the plaintiff would have engaged an alternative builder to carry out the work, and had that occurred the plaintiff would have paid approximately $558,503 for the completion of the work, having regard to the expert evidence. That compares to the much larger sum of $1,213,493.43 that she did in fact have to pay to Super Shepherd and Felixland for the completion of the works. The loss is thus 654,990.43 plus the cost of rectification of the damage to the property next door which was a further $4,895. I also take into account that the works would have been completed by 1 August 2022 and the plaintiff would not have had to pay rent past that date which adds up to a sum of $119,912.86.

46. By way of concluding remarks I propose to order that the second defendant to pay the same sum claimed which is $779,798.29 (judgment, paragraph 24).

47. Interest is to be calculated pursuant to s 100 of Civil Procedure Act 2005 (NSW) to the same date as that set out in Judge Cole's judgment which is $164,472.96 which makes a total of $944,271.25.

Application for an adjournment

48. Returning to the issue of the application for an adjournment of today's hearing, the second defendant at 12.41pm on Friday, 22 August filed a notice of motion on which he wrote the words "urgent" seeking orders as follows:

"1. An order pursuant to s 66(1) of the Civil Procedure Act 2005 (NSW) that the hearing commencing on 25 August 2025 with a three day estimate be vacated.

2. These proceedings be listed for directions on [blank space].

3. That costs of the motion be reserved.

4. Such further or other order as the court thinks fit."

49. In support, Mr Lee provided an affidavit in which he set out that he had made attempts to obtain legal representation from "around mid-July 2025" although the subsequent inquiries appear to have been made on dates between 6 August and 20 August 2025.

50. Unsurprisingly all of the legal firms that he approached seeking assistance said they were unable to assist. There is a particularly helpful letter from Samuel Barry setting out that given the proximity of the hearing, his firm would not be in a position to adequately prepare for or appear at the hearing, and added, "Perhaps if our office was approached last week, we would most likely have been able to." Mr Barry then went on to give some very helpful advice to the second defendant referring to the High Court decision in Aon Risk Services Australia Limited v Australian National University (2009) CLR 175 at 98, and to a recent decision in this Court of SA (a pseudonym) v Hatfield [2025] NSWDC 56 at para [24].

51. Essentially the second defendant left everything to the last minute. He provides no explanation beyond saying that I was unaware of legal issues for the delay. He tells me that he is an architect from which I assume that he has a tertiary education as a skilled professional, and it is clear to me that he speaks English with the utmost confidence, and is a well educated and articulate member of the business community in general and architecture in particular.

52. I also take into account that while the second defendant said he did not have the money to retain a lawyer, he did in fact have a lawyer, albeit briefly, in the NCAT proceedings, and that lawyer was able to obtain an adjournment of the hearing on 12 August 2024 on the basis that the second defendant had not been served with documentation. Although Mr Lee says that these lawyers only appeared briefly and did not give him any advice about the merits of the case, he was nevertheless able to conduct this litigation thereafter by himself without any difficulties, which included appearing in court, drafting affidavits and the like.

53. He put to me that it was a requirement for procedural fairness that he should be entitled to have legal representation, and that it would be an unfair prejudice to him for him not to be able to adjourn these proceedings. He displayed little sympathy for the plaintiff who had come to court ready, willing and able to conduct the case today and indeed it would appear that while he has had some promises of funds from friends, he does not actually have those funds in his position, and he did not make any offer to in any way compensate the plaintiff for the very belated application he put before the Court.

54. The principles set out in Aon Insurance are of particular relevance to cases such as this where one hearing date has already been lost by reason of an application on the first day of the hearing for an adjournment. Justice must not only be done but be seen to be done, and there must be careful consideration of the overarching principle set out in s 56 of the Civil Procedure Act.

55. The plaintiff also referred to his health, although in general terms, in that he suffers from anxiety and he said that this was a relevant factor to his case. It must be said that the medical certificate he provided was in the most general terms and his condition was not actually even outlined. All I was told was that his doctor had seen him for a condition which required prescription of a drug called temazepam, and another drug which I assume is also for the purpose of anxiety, but there is no reason why this anxiety would have stopped him from consulting a lawyer and paying that lawyer when he was first served with this statement of claim in or about August 2024 when he learned of the proceedings.

56. He has had a year to find someone and to put before the Court the documentary evidence he relies upon. I note however having seen the documentary evidence in question and heard his complaints about his own terrible drafting of the affidavit and defence and the like, that there is nothing in the documentation that he has produced to date to suggest to me that there would be some form of injustice. Essentially what he seeks to argue is that some other company and not Super Shepherd was the builder, but given the way in which the representations were made on his own behalf, such a claim, even if it had been successfully made in these proceedings, would have failed for the reasons set out earlier in my judgment.

57. The orders I will make are:

1. Judgment for the plaintiff for the sum of $944,271.25;

2. The second defendant is to pay the plaintiff's costs including the costs of the application to adjourn the hearing.

3. Exhibit retained until further order.

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Decision last updated: 29 August 2025