Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Taylor v Fuller t/as Environmental Systems Architecture [2023] NSWCATCD 157 Hearing dates: 17 November 2023 Date of orders: 28 December 2023 Decision date: 28 December 2023 Jurisdiction: Consumer and Commercial Division Before: G A Kinsey, General Member Decision: The application is dismissed.
Catchwords: CONSUMER LAW-consumer guarantee under section 60 of Australian Consumer Law 2010 (NSW)-identity of contracting parties- status of deregistered company-whether architect provided services with due care and skill- terms and conditions of contract-meaning of due care and skill
Legislation Cited: Australian Consumer Law 2010 (NSW)
Corporations Act 2001 (Cth)
Fair Trading Act 1987 (NSW)
Cases Cited: John Churchill and Louise Churchill v Troy Paschini trading as Labryinth Gardens [2015] NSWCATCD 73
Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243
Liu v Zaccaria trading as Precision Automotive Engineers [2017] NSWCATCD 59
Mayne Nickless Ltd v Crawford (1992) 59 SASR 490
Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 15
Texts Cited: None
Category: Principal judgment Parties: Duncan Taylor and Shannon Taylor (Applicants)
Robert Peter Fuller t/as Environmental Systems Architecture (Respondent)Representation: Duncan Taylor (Applicants)
Robert Peter Taylor, self-represented (Respondent)
File Number(s): 2023/00373275 (previously GEN 23/44534) Publication restriction: Unrestricted
REASONS FOR DECISION
Parties
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The Applicants Duncan and Shannon Taylor engaged the Respondent to provide advice about the redevelopment of sites in Wiley Park and Punchbowl and to prepare development applications for submission to council. For the sake of convenience, the Applicants shall hereinafter be referred to collectively as “the Taylors”. At the hearing, Taylor was represented by Duncan Taylor (who shall be referred to as “Duncan”).
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The Respondent Peter Fuller is a registered architect who conducts business as Environmental Systems Architecture. For the sake of convenience, the Respondent shall hereinafter be referred to as “Fuller”. At the hearing, Fuller represented himself.
The Application
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In an application filed in the Tribunal on 3 October 2023, the Taylors sought orders against Fuller for the payment of $38337.73 being a refund of professional fees paid for architectural services including advice and the preparation and lodgement of development applications for properties at Wiley Park and Punchbowl.
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The Taylors alleged Fuller did not provide his services with due care and skill in breach of the consumer guarantee in section 60 of Australian Consumer Law 2010 (NSW) (“the ACL”) and breached his contract.
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The Taylors claimed they were entitled to a refund of the fees paid to Fuller for his non-compliance with the consumer guarantee in section 60 of the ACL and breaching his contract. In addition to a refund, the Taylors sought reimbursement of fees paid to external consultants.
Jurisdiction
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I find that the claim is a "consumer claim" as defined in section 79E of the Fair Trading Act 1987 (“the FTA”).
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I find that the Taylors are consumers, Fuller is a supplier and the application is a claim by a consumer that arises from a…
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- Case
- [2023] NSWCATCD 157
- Decision Date
CaseChat Overview and Summary
The court found that the identity of the contracting parties was a crucial issue in the case, as it was not clear whether Mr Taylor had contracted with Ms Fuller personally or through her deregistered company, Environmental Systems Architecture. The court also had to determine the meaning of "due care and skill" in the context of the contract and whether Ms Fuller had provided the services with the required level of care and skill. The court examined the terms and conditions of the contract and considered the evidence presented by both parties. Ultimately, the court found that the appellant had not provided the services with due care and skill and that the respondent was not entitled to recover his costs.
The court's reasoning was based on the evidence presented and the terms and conditions of the contract. The court found that the contract was clear in its requirements for due care and skill and that the appellant had failed to meet these requirements. The court also found that the respondent was not entitled to recover his costs as the appellant had not breached the contract in a way that would entitle him to such a recovery. The court's decision was based on a careful consideration of the evidence and the law applicable to the case.
The final orders of the court were that the application by the respondent to recover his costs from the appellant was dismissed. The court found that the appellant had not provided the services with due care and skill and that the respondent was not entitled to recover his costs under the circumstances. The court's decision provides guidance on the meaning of "due care and skill" in the context of contracts for architectural services and the circumstances in which a respondent may be entitled to recover costs from an appellant.
Orders
Orders of the court
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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