Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Larsen v Tastec Pty Ltd [2023] NSWCA 39 Hearing dates: 22-23 June 2022 Date of orders: 9 March 2023 Decision date: 09 March 2023 Before: Ward P at [1]
Mitchelmore JA at [2]
Kirk JA at [167]Decision: (1) Appeal allowed.
(2) Set aside Order 1 of the orders of the District Court on 17 December 2021, and Order 4 of the orders of the District Court on 4 March 2022.
(3) In lieu thereof, order that:
(a) The Plaintiffs’ claim for damages for breach of contract against the First Defendant is dismissed.
(b) The Plaintiffs’ claim against the First and Second Defendants for relief under the Australian Consumer Law (ACL) be remitted to the District Court, to a judge other than the primary judge, for determination of:
(i) what relief (if any) should be granted pursuant to s 236 and/or s 237 of the ACL, and
(ii) the costs of the proceedings.
(4) The respondents are to pay the appellants’ costs of the appeal.
Catchwords: CONSUMER LAW – misleading or deceptive conduct – where appellants engaged first respondent for the supply and assembly of a pre-fabricated house – where representations made by respondents regarding the cladding material to be used under the contract – where appellants, in reliance on the representations, agreed to a contractual variation regarding cladding material – whether cladding representations were misleading or deceptive – whether appellants suffered loss or damage as a result of agreeing to contractual variation in reliance on cladding representations
CONTRACTS – breach of contract – breach of express terms – defective performance – whether respondents breached express terms of contract related to supply and installation of doors and windows
CONTRACTS – parties – where dispute as to whether appellants entered into contract in their personal capacity or as trustees of their superannuation fund – whether appellants’ claim, which was brought in their capacity as trustees of their superannuation fund, could be maintained
Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 18, 29, 236, 237
Design and Building Practitioners Act 2020 (NSW)
Home Building Act 1989 (NSW)
Trade Practices Act 1974 (Cth), s 52, 82, 87
Cases Cited: Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25
Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12
Harvard Nominees Pty Ltd v Tiller (2020) 282 FCR 530; [2020] FCAFC 229
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; [2002] HCA 41
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; [1998] HCA 69
Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388; [2004] HCA 3
Robinson…
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- AGLC
- Larsen v Tastec Pty Ltd [2023] NSWCA 39
- Case
- [2023] NSWCA 39
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the representations made by the respondents regarding the cladding material constituted misleading or deceptive conduct under the Australian Consumer Law, and if so, whether the appellants suffered loss or damage as a consequence of relying on those representations to vary the contract. Additionally, the court had to consider whether the respondents breached express terms of the contract concerning the supply and installation of doors and windows. The court also had to resolve the dispute regarding the capacity in which the appellants entered into the contract and the validity of their claim as trustees.
The Court of Appeal allowed the appeal, setting aside the orders of the District Court. The court dismissed the appellants' claim for damages for breach of contract against the first respondent. However, the claims against both respondents for relief under the Australian Consumer Law were remitted to the District Court for determination of what relief, if any, should be granted and the costs of those proceedings. The respondents were ordered to pay the appellants' costs of the appeal.
Orders
Orders of the court
(1) Appeal allowed.
(2) Set aside Order 1 of the orders of the District Court on 17 December 2021, and Order 4 of the orders of the District Court on 4 March 2022.
(3) In lieu thereof, order that:
(a) The Plaintiffs’ claim for damages for breach of contract against the First Defendant is dismissed.
(b) The Plaintiffs’ claim against the First and Second Defendants for relief under the Australian Consumer Law (ACL) be remitted to the District Court, to a judge other than the primary judge, for determination of:
(i) what relief (if any) should be granted pursuant to s 236 and/or s 237 of the ACL, and
(ii) the costs of the proceedings.
(4) The respondents are to pay the appellants’ costs of the appeal.
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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