Scozza v Jih Building Design Pty Ltd

Case [2023] NSWCATCD 120

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Scozza v JIH Building Design Pty Ltd [2023] NSWCATCD 120
Hearing dates: 18 August 2023
Date of orders: 25 September 2023
Decision date: 25 September 2023
Jurisdiction:Consumer and Commercial Division
Before: K George, General Member
Decision:

1. The application is dismissed.

Catchwords:

CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill — Guarantee as to fitness for a particular purpose — Guarantee as to reasonable time for supply

Legislation Cited:

Australian Consumer Law 2010 (NSW)

Fair Trading Act 1987 (NSW)

Fair Trading Regulation 2019 (NSW)

Home Building Act 1989 (NSW)

Cases Cited:

Ballard v Multiplex [2012] NSWSC 426

Briginshaw v Briginshaw [1938] HCA 34

Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185

Duran and Duran v Tafra Pty Ltd [2015] NSWCATCD 110

Hadley v Baxendale (1854) 9 Ex 341

JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237

Khan v Khang [2014] NSWCATAP 48

Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243

McCrohan v Harith [2010] NSWCA 67

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

Panico v Mollier Enterprises Pty Limited t/a JC Diesel Tune [2021] NSWCATCD 56

Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768

Pollock v NSW Trustee & Guardian [2022] NSWSC 923

Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31

State of New South Wales v Moss (2000) 54 NSWLR 536

Strogylos t/as Auto Clinic St Andrews v Vella [2020] NSWCATAP 156

Troulis v Vamvoukakis [1998] NSWCA 237

Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56

Texts Cited:

Corones' Australian Consumer Law, 5th ed, 2023

Category:Principal judgment
Parties:

Marina Scozza (Applicant)

JIH Building Design Pty Ltd (Respondent)
Representation:

Marina Scozza, self-represented (Applicant)

Jason Harb, director (Respondent)
File Number(s): GEN 23/30319
Publication restriction: Nil

REASONS FOR DECISION

Introduction

  1. The respondent is in the business of designing buildings. In October 2021 the applicant engaged it to produce a Feasibility Report about the construction of a ‘granny flat’ on her premises and, subsequently, concept designs that were submitted to the local council prior to a possible development application.

  2. The applicant claims that the respondent breached specific guarantees in the Australian Consumer Law 2010 (NSW) (ACL), regarding the provision of services:

  1. Guarantee as to due care and skill - section 60

  2. Guarantees as to fitness for a particular purpose - section 61

  3. Guarantee as to reasonable time for supply - section 62

  1. The applicant seeks an order for payment of a total amount of $14,030.00:

  1. The refund of the cost of the Feasibility Report - $1925.00

  2. The refund of the cost of the concept drawings - $2530.00

  3. Consequential loss of $9575.00 ‘being the cost of further reports required by [the respondent] and incurred rental expense.’

  1. Ms Scozza appeared in person at the hearing and relied on…

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Details
AGLC
Scozza v Jih Building Design Pty Ltd [2023] NSWCATCD 120
Case
[2023] NSWCATCD 120
Decision Date

CaseChat Overview and Summary

The matter before the court involved a claim brought by the plaintiff, Scozza, against the defendant, Jih Building Design Pty Ltd. The dispute centred around allegations that the defendant had failed to supply services with due care and skill, had not supplied services that were fit for a particular purpose, and had not supplied the services within a reasonable time. The case was heard by the Supreme Court of Victoria.

The legal issues that the court was required to decide included whether the defendant had breached the consumer guarantees under the Australian Consumer Law by failing to supply the services with due care and skill, whether there was a guarantee as to fitness for a particular purpose that had been breached, and whether the defendant had failed to supply the services within a reasonable time. The court also needed to consider whether any of these breaches justified the dismissal of the application.

The court found that the plaintiff had not provided sufficient evidence to support the claim that the defendant had breached any of the consumer guarantees. The court noted that the plaintiff had failed to establish that the defendant had not supplied the services with due care and skill, that the services were not fit for a particular purpose, or that the services were not supplied within a reasonable time. The court further held that the plaintiff had not provided any evidence to support the claim that the defendant had breached any of these guarantees. Consequently, the application was dismissed.

Orders

Orders of the court

1. The application 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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