Mills v Walsh

Case [2022] NSWCA 255

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Mills v Walsh [2022] NSWCA 255
Hearing dates: 6, 7 September 2022
Date of orders: 8 December 2022
Decision date: 08 December 2022
Before: Bell CJ at [1];
White JA at [2];
Brereton JA at [39]
Decision:

(1) Dismiss the appeal.

(2) Order that the appellant pay the first respondent’s costs of the appeal.

(3) Direct the parties that any application for costs by or in respect of the second respondent should be made by written submission, accompanied by any evidence, lodged and served within 14 days.

Catchwords:

CONSUMER LAW – Misleading or deceptive conduct – Contract for residential renovation works – Representation by silence that construction company was licensed to undertake works – Whether primary judge erred in finding future form of pleaded representation made out – “No transaction” case – Requirement of plaintiff to prove its loss – Price paid minus value of benefits received – Source of value in construction contract – Where partially renovated property subsequently demolished and rebuilt – Effect of circumstance that builder was unlicensed

CONTRACT – Identification of parties where no written contract in place – Whether construction company or its principal party to residential construction contract

Legislation Cited:

Competition and Consumer Act 2010 (NSW) Schedule 2, Australian Consumer Law, ss 4, 18, 236

Civil Procedure Act 2000 (NSW), s 100

Evidence Act 1995 (NSW), s 135

Home Building Act 1989 (NSW), ss 3, 4, 5, 18B, 94

Trade Practices Act 1974 (Cth), ss 52, 53, 82

Cases Cited:

ACCC v Woolworths [2019] FCA 1039

ADC v White [2001] NSWCA 9

Admiralty Commissioners v SS Chekiang [1926] AC 637

Allergan Australia Pty Ltd v Self Care IP Holdings Pty Ltd [2020] FCA 1530

Bartier Perry Pty Ltd v Paltos [2021] NSWCA 158

BP Exploration Co (Libya) Ltd v Hunt (No 2) [1979] 1 WLR 783

Benedetti v Sawiris [2014] AC 938; [2013] UKSC 50

Boncristiano v Lohmann [1998] 4 VR 82

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424

Brenner v First Artists’ Management Pty Ltd (1993) 2 VR 221

Bryanston Finance Ltd v de Vries [1975] QB 703

Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25

Canavan v Wright [1957] NZLR 790

Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55

Chevron North America (The) [2002] 1 Lloyds Rep 77

Clark v Urquhart [1930] AC 28

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54

Dadourian Group International Inc v Simms [2009] 1 Lloyds Rep 601

Digi-tech (Aust) Ltd v Brand [2004] NSWCA 58; (2004) ATPR 46-248

Downs v Chappell [1997] 1 WLR 426

Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158

East v Mauerer [1991] 1 WLR 461

EK Nominees Pty Ltd v Woolworths Ltd [2006] NSWSC 1172

Ford Motor Co of Australia Ltd v Arrowcrest Group Pty Ltd [2003] FCAFC 313

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AGLC
Mills v Walsh [2022] NSWCA 255
Case
[2022] NSWCA 255
Decision Date

CaseChat Overview and Summary

In *Mills v Walsh*, the Court of Appeal of New South Wales considered a dispute arising from a contract for residential renovation works. The appellant, Mr Mills, had engaged the first respondent, a construction company, to undertake renovations. Mr Mills alleged that the company, through its principal, the second respondent, had engaged in misleading or deceptive conduct in contravention of consumer law. The central issue was whether the company had represented, by silence, that it was licensed to undertake the works, and whether this representation had caused Mr Mills loss.

The court was required to determine two primary legal issues. Firstly, whether the primary judge had erred in finding that a future form of pleaded representation had been made out, specifically concerning the company's licensing status. Secondly, the court had to consider the identification of the parties to the contract, given that no written contract was in place, and whether it was the construction company or its principal who was the party to the residential construction contract.

The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The court reasoned that the appellant had failed to prove his loss, which in a "no transaction" case, required demonstrating the price paid minus the value of benefits received. The court found that the source of value in a construction contract was the completed work, and in this instance, the partially renovated property was subsequently demolished and rebuilt. The fact that the builder was unlicensed was a relevant circumstance, but the appellant had not established the necessary causal link between the alleged misleading conduct and his loss. The court also found that the appellant had not established that the principal, rather than the company, was the party to the contract.

Orders

Orders of the court

(1) Dismiss the appeal.

(2) Order that the appellant pay the first respondent’s costs of the appeal.

(3) Direct the parties that any application for costs by or in respect of the second respondent should be made by written submission, accompanied by any evidence, lodged and served within 14 days.

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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