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Machayekhy v Bayeh

Machayekhy v Bayeh

Case [2024] NSWCATCD 17 31 January 2024

Contract Formation

Misleading and Deceptive Conduct

Costs

Building & Construction Law

Consumer Law

Type to search within this case.

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Machayekhy v Bayeh [2024] NSWCATCD 17
Hearing dates: 18 January 2024
Date of orders: 31 January 2024
Decision date: 31 January 2024
Jurisdiction: Consumer and Commercial Division
Before: Graham Ellis SC, Senior Member
Decision:
1 The first respondent, Sarkis Bayeh, is to pay the first applicant, Adrian Machayekhy, $71,143 immediately.
2 The application is otherwise dismissed.
3 The first respondent is to pay the costs of the second, third and fourth respondents and costs of the applicants, on the ordinary basis, as agreed or assessed.
4 If any party wishes to contend that a different costs order should be made, order 3 ceases to have effect and the following orders apply:
(a) Any application for a different costs order is to be filed and served, supported by submissions (not exceeding five pages in length) and evidence within 14 days of the date of these orders.
(b) Any submissions (not exceeding five pages in length) and evidence in response are to be file and served with the following 14 days.
(c) Any submissions in reply (not exceeding two pages in length) and evidence in reply are to be filed and served within the following 7 days.
(d) Any such submissions should indicate whether it is agreed that the Tribunal should dispense with a hearing.

Catchwords:
BUILDING AND CONSTRUCTION – Contract with non-owner – whether Home Building Act applies
CONTRACTS – Identification of parties – whether subsequent conduct can be considered
CONSUMER LAW – Misleading and deceptive conduct alleged
COSTS – Sanderson order – consideration of the conduct of the parties

Legislation Cited:
Australian Consumer Law
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Competition and Consumer Act 2010 (Cth)
Competition and Consumer Regulations 2010 (Cth)
Fair Trading Act 1987 (NSW)
Home Building Act 1989 (NSW)

Cases Cited:
Ashby v Slipper [2014] FCAFC 15
Bellgrove v Eldridge [1954] HCA 36
Bonita v Shen [2016] NSWCATAP 159
BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40; 180 CLR 266
Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61
Brooks v Gannon Constructions Pty Limited [2017] NSWCATCD 12
Browne v Dunn (1893) 6 R 67, HL
Bullock v London General Omnibus Co [1907] 1 KB 264
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54
Galdona v Peacock [2017] NSWCATAP 64
Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117
Gerrard v Slamar [2004] WASC 253
Haines v Bendall [1991] HCA 15
Lackersteen v Jones (No 2) (1988) 93 FLR 442
Latoudis v Casey [1990] HCA 59
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
News v Cotes [2019] NSWCATAP 186
Oshlak v Richmond River Council [1998] HCA 11
Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167
Sanderson v Blyth Theatre Co [1903] 2 KB 53
Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179
Thompson v Chapman [2016] NSWCATAP 6
Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd [2004] HCA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Machayekhy v Bayeh

Details

AGLC: Machayekhy v Bayeh [2024] NSWCATCD 17
Case: [2024] NSWCATCD 17
Decision Date: 31 January 2024

CaseChat Overview and Summary

In Machayekhy v Bayeh, the applicant, Adrian Machayekhy, sought relief from the Supreme Court of Queensland following a dispute over a contract for the construction of a home. The respondents, Sarkis Bayeh, the home's owner, and three building companies, were alleged to have breached the contract and engaged in misleading or deceptive conduct. The primary issue before the court was whether the contract was governed by the Home Building Act 1989 (Qld) or if the applicants had established a contractual relationship with the respondents that allowed them to seek damages for breach of contract. The court also considered the conduct of the parties in the proceedings to determine the appropriate costs order.

The court found that the contract was governed by the Home Building Act and that the applicants had not established a contractual relationship with the respondents that allowed them to seek damages for breach of contract. The court held that the subsequent conduct of the parties could not be considered to identify the parties to the contract, as the applicants had not demonstrated an intention to enter into a contract with the respondents. The court also found that the applicants had not established a claim for misleading or deceptive conduct under the Australian Consumer Law.

In relation to costs, the court made a Sanderson order, which provides that a party who has been successful on all or substantially all of the issues in the proceedings is entitled to costs on the ordinary basis. However, if any party wishes to contend that a different costs order should be made, the court ordered that an application for a different costs order be filed and served within 14 days, with any response and reply submissions to be filed and served within the following 14 and 7 days, respectively. The court indicated that it may dispense with a hearing if the parties agree.

The court ordered that the first respondent, Sarkis Bayeh, is to pay the first applicant, Adrian Machayekhy, $71,143 immediately. The application was otherwise dismissed, and the first respondent was to pay the costs of the second, third and fourth respondents and costs of the applicants, on the ordinary basis, as agreed or assessed. If any party wishes to contend that a different costs order should be made, the court's previous order regarding the filing and serving of submissions and evidence would apply.

Orders

Orders of the court

1 The first respondent, Sarkis Bayeh, is to pay the first applicant, Adrian Machayekhy, $71,143 immediately.

2 The application is otherwise dismissed.

3 The first respondent is to pay the costs of the second, third and fourth respondents and costs of the applicants, on the ordinary basis, as agreed or assessed.

4 If any party wishes to contend that a different costs order should be made, order 3 ceases to have effect and the following orders apply:

(a) Any application for a different costs order is to be filed and served, supported by submissions (not exceeding five pages in length) and evidence within 14 days of the date of these orders.

(b) Any submissions (not exceeding five pages in length) and evidence in response are to be file and served with the following 14 days.

(c) Any submissions in reply (not exceeding two pages in length) and evidence in reply are to be filed and served within the following 7 days.

(d) Any such submissions should indicate whether it is agreed that the Tribunal should dispense with a hearing.

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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Citations

AGLC Citation

Machayekhy v Bayeh [2024] NSWCATCD 17

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 21 of 21 shown

Brooks v Gannon Constructions Pty Limited
[2017] NSWCATCD 12 Para 18

…is clear the Tribunal is required to weigh up the factors in each case and make an evidence-based decision: Brooks v Gannon Constructions Pty Limited [2017] NSWCATCD 12 ( Brooks ) at [64]. However, as Mr Bayeh (1) was not a licensed builder, (2) abandoned the work, and (3) cannot be located, that statutory presumptio…
Ashby v Slipper
[2014] FCAFC 15 Para 64

…Mr Chalhoub was not cross-examined. In Ashby v Slipper [2014] FCAFC 15 at [77] it was said that “ as a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 372 at 370-371 (per Gibbs J, Stephen J agreeing…
Gerrard v Slamar
[2004] WASC 253 Para 94

…difficulty of assessment is not a barrier, as indicated in Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54, and the situation in Gerrard v Slamar [2004] WASC 253 where there was a lack of evidence and an estimate or guess should not be made to make good that omission.…
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd
[2004] HCA 52 Para 66

…of the parties thought or what they intended. Many decisions, such as that of the High Court of Australia in Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd [2004] HCA 52 ( Toll ) at [40], have established that contract law is concerned not with the subjective intentions of the parties to a contract, but rather with th…
Makita (Australia) Pty Ltd v Sprowles
[2001] NSWCA 305 Para 24

…Thirdly, decisions such as Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ( Makita ) make it clear that, for expert evidence to be accepted: (1) the opinion must clearly indicate the facts upon which it is based, (2) those facts must be proved so there is a factual basis for the opinion, (3) reasons or the…
Stevedoring Industry Finance Committee v Gibson
[2000] NSWCA 179 Para 130

…In Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179 at [128], the following summary was quoted, taken from what was said in Lackersteen v Jones (No 2) (1988) 93 FLR 442 at 449:…
Oshlack v Richmond River Council
[1998] HCA 11 Para 127

…outcome of the case) unless there is disentitling behaviour by the successful party: Latoudis v Casey [1990] HCA 59, Oshlak v Richmond River Council [1998] HCA 11.…
Commonwealth v Amann Aviation Pty Ltd
[1991] HCA 54 Para 94

…9-51], the distinction is between the principle that difficulty of assessment is not a barrier, as indicated in Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54, and the situation in Gerrard v Slamar [2004] WASC 253 where there was a lack of evidence and an estimate or guess should not be made to make good th…
Haines v Bendall
[1991] HCA 15 Para 19

…he fundamental principle that the party affected by the breach should be put in the same position as if the breach had not occurred: Haines v Bendall [1991] HCA 15 ( Haines ).…
Latoudis v Casey
[1990] HCA 59 Para 127

…r is that costs follow the event (ie follow the outcome of the case) unless there is disentitling behaviour by the successful party: Latoudis v Casey [1990] HCA 59, Oshlak v Richmond River Council [1998] HCA 11.…
BP Refinery (Westernport) Pty Ltd v Shire of Hastings
[1977] UKPCHCA 1 Para 82

…arranted, having regard to the five requirements set out by the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40; 180 CLR 266. Either way, there was a breach of each agreement by Mr Bayeh which entitled Mr Machayekhy to damages.…
Precision Plastics Pty Ltd v Demir
[1975] HCA 27 Para 64

…neral proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 372 at 370-371 (per Gibbs J, Stephen J agreeing, Murphy J generally agreeing). The evidence may of course be rejected if it is contradicted by facts otherw…
Bellgrove v Eldridge
[1954] HCA 36 Para 20

…en defective work, the rectification method must be both necessary and reasonable and the rectification cost must be reasonable: Bellgrove v Eldridge [1954] HCA 36 ( Bellgrove ).…
[1988] NTSC 72
[1988] NTSC 72 Para 130

…dustry Finance Committee v Gibson [2000] NSWCA 179 at [128], the following summary was quoted, taken from what was said in Lackersteen v Jones (No 2) (1988) 93 FLR 442 at 449:…
This case also raises a difficulty in relation to the assessment of damages. Gallagher v Masters Installation Pty Ltd
[2017] NSWCATAP 117 Para 94

…Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 ( Gallagher ) is often cited in support of the proposition that, in circumstances where precision is not possible, the Tribunal must do the best it can on the basis of the evidence that is available. By reference to what was said in that case at [49-51], the…
Tribunal must do the best it can, based on the evidence that is available. Pacorp Holdings Pty Ltd v Waller
[2017] NSWCATAP 167 Para 95

…Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167 at [58] is but one example of the application of what was said in Gallagher and the position was succinctly stated in that case as being that “ provided that some evidence of loss or damage has been produced, difficulty of assessment is not a bar to the assessment o…
[1907] 1 KB 264
[1907] 1 KB 264 Para 129

…More than a century ago, in Bullock v London General Omnibus Co [1907] 1 KB 264 and Sanderson v Blyth Theatre Co [1903] 2 KB 533, orders were made in cases where a plaintiff sued more than one defendant but was not successful against each defendant. The orders for costs made in those cases have come to be known as…
[1903] 2 KB 533
[1903] 2 KB 533 Para 129

…More than a century ago, in Bullock v London General Omnibus Co [1907] 1 KB 264 and Sanderson v Blyth Theatre Co [1903] 2 KB 533, orders were made in cases where a plaintiff sued more than one defendant but was not successful against each defendant. The orders for costs made in those cases have come to be known as…
Browne v Dunn
113 ER 1206 Para 113

…apply to these proceedings, s 38(2) also requires that the rules of natural justice be followed. Applying what is commonly referred to as the rule in Browne v Dunn (1893) 6 R 67, HL, it would be procedurally unfair to find that the allegation that Mr Chidiac said the work did not require Council approval has been prove…
[1903] 2 KB 53
[1903] 2 KB 53

…TAP 186 Oshlak v Richmond River Council [1998] HCA 11 Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167 Sanderson v Blyth Theatre Co [1903] 2 KB 53 Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179 Thompson v Chapman [2016] NSWCATAP 6 Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd [2004] HCA 52 Texts C…
[2001] NSWCA 61
[2001] NSWCA 61 Para 67

…ble on the question of whether a contract was formed, but not on the question of what a contract means: Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 at [25]-[26], per Heydon JA.…

Legislation cited in this decision · 6

Civil and Administrative Tribunal Act 2013 (NSW)
2 mentions (from Para 113)
Civil and Administrative Tribunal Rules 2014 (NSW)
1 mention
Competition and Consumer Act 2010 (Cth)
1 mention (from Para 7)
Competition and Consumer Regulations 2010 (Cth)
1 mention
Fair Trading Act 1987 (WA)
1 mention (from Para 6)
Home Building Act 1989 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Machayekhy v Bayeh [2024] NSWCATCD 17
Hearing dates:	18 January 2024
Date of orders:	31 January 2024
Decision date:	31 January 2024
Jurisdiction:	Consumer and Commercial Division
Before:	Graham Ellis SC, Senior Member
Decision:	1 The first respondent, Sarkis Bayeh, is to pay the first applicant, Adrian Machayekhy, $71,143 immediately. 2 The application is otherwise dismissed. 3 The first respondent is to pay the costs of the second, third and fourth respondents and costs of the applicants, on the ordinary basis, as agreed or assessed. 4 If any party wishes to contend that a different costs order should be made, order 3 ceases to have effect and the following orders apply: (a) Any application for a different costs order is to be filed and served, supported by submissions (not exceeding five pages in length) and evidence within 14 days of the date of these orders. (b) Any submissions (not exceeding five pages in length) and evidence in response are to be file and served with the following 14 days. (c) Any submissions in reply (not exceeding two pages in length) and evidence in reply are to be filed and served within the following 7 days. (d) Any such submissions should indicate whether it is agreed that the Tribunal should dispense with a hearing.
Catchwords:	BUILDING AND CONSTRUCTION – Contract with non-owner – whether Home Building Act applies CONTRACTS – Identification of parties – whether subsequent conduct can be considered CONSUMER LAW – Misleading and deceptive conduct alleged COSTS – Sanderson order – consideration of the conduct of the parties
Legislation Cited:	Australian Consumer Law Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Competition and Consumer Act 2010 (Cth) Competition and Consumer Regulations 2010 (Cth) Fair Trading Act 1987 (NSW) Home Building Act 1989 (NSW)
Cases Cited:	Ashby v Slipper [2014] FCAFC 15 Bellgrove v Eldridge [1954] HCA 36 Bonita v Shen [2016] NSWCATAP 159 BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40; 180 CLR 266 Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 Brooks v Gannon Constructions Pty Limited [2017] NSWCATCD 12 Browne v Dunn (1893) 6 R 67, HL Bullock v London General Omnibus Co [1907] 1 KB 264 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 Galdona v Peacock [2017] NSWCATAP 64 Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 Gerrard v Slamar [2004] WASC 253 Haines v Bendall [1991] HCA 15 Lackersteen v Jones (No 2) (1988) 93 FLR 442 Latoudis v Casey [1990] HCA 59 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 News v Cotes [2019] NSWCATAP 186 Oshlak v Richmond River Council [1998] HCA 11 Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167 Sanderson v Blyth Theatre Co [1903] 2 KB 53 Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179 Thompson v Chapman [2016] NSWCATAP 6 Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd [2004] HCA…