Bathurst CJ at [1]; McColl JA at [5]; Emmett JA at [7]
Decision:
1 Appeal allowed.
2 The orders made by Hammerschlag J on 15 August 2014 against the appellant be set aside, and in lieu thereof:
(a) there be judgment for the second defendant;
(b) the plaintiffs pay the second defendant’s costs of the trial.
3 The respondents pay the appellant’s costs of the appeal.
4 If otherwise qualified, the respondents have a certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords:
TRADE AND COMMERCE – Australian Consumer Law – conduct “in trade or commerce” – whether representations made on behalf of vendors to prospective purchasers of a residential property constituted conduct “in trade or commerce” – relevance of the fact of prior renovation of the property, with the intention to sell it at a profit
TRADE AND COMMERCE – proportionate liability – whether Pt VIA of the Competition and Consumer Act 2010 (Cth) applies to a claim for damages caused by conduct done in contravention of a provision of the Australian Consumer Law other than s 18
TRADE AND COMMERCE – proportionate liability – definition of “concurrent wrongdoer”, s 87CB(3) – whether that term applies to a single act committed by two or more persons jointly
TRADE AND COMMERCE – proportionate liability – apportionment, s 87CD(1) – whether that provision requires that the sum of the judgment sums against each of the concurrent wrongdoers not exceed 100 per cent
DAMAGES – measure of damages – whether the market value of a property can be determined by reference to the cost of rectification of defects that involve breaches of statutory warranties
WORDS AND PHRASES – “in trade or commerce” – Australian Consumer Law, ss 18, 30
Legislation Cited:
Competition and Consumer Act 2010 (Cth), ss 84, 87CB, 87CC, 87CD, 87CF, 87CI; Sch 2 (Australian Consumer Law), ss 18, 30, 236 Civil Liability Act 2002 (NSW), s 34 Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth) Corporations Act 2001 (Cth), ss 1041H, 1041L Home Building Act 1999 (NSW), ss 18B, 18C, 31, 32, 95 Partnership Act 1892 (NSW), ss 5, 6 Trade Practices Act 1974 (Cth), ss 52, 82
[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.
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AGLC
Williams v Pisano [2015] NSWCA 177
Case
[2015] NSWCA 177
Decision Date
CaseChat Overview and Summary
In *Williams v Pisano*, the New South Wales Court of Appeal considered a dispute arising from the sale of a residential property. The plaintiffs, who purchased the property, alleged that representations made by the vendors' agent constituted misleading or deceptive conduct in trade or commerce, in contravention of the Australian Consumer Law. The vendors had renovated the property with the intention of selling it for a profit.
The Court was required to determine several key legal issues. Firstly, it had to decide whether the representations made by the agent to prospective purchasers of a residential property, in circumstances where the vendors had undertaken renovations with a view to selling at a profit, constituted conduct "in trade or commerce" for the purposes of the Australian Consumer Law. Secondly, the Court considered whether Part VIA of the *Competition and Consumer Act 2010* (Cth), concerning proportionate liability, applied to claims for damages arising from contraventions of provisions of the Australian Consumer Law other than section 18. Relatedly, the Court examined the definition of "concurrent wrongdoer" under section 87CB(3) and whether it encompassed a single act committed by multiple individuals jointly, and the application of section 87CD(1) regarding the apportionment of liability. Finally, the Court considered the appropriate measure of damages, specifically whether the market value of a property could be determined by reference to the cost of rectifying defects that involved breaches of statutory warranties.
The Court of Appeal allowed the appeal, setting aside the orders made by Hammerschlag J. The Court found that the conduct in question did not occur "in trade or commerce" as required by the Australian Consumer Law. Consequently, the plaintiffs' claim failed. The Court ordered that there be judgment for the second defendant (the appellant) and that the plaintiffs pay the second defendant's costs of the trial. The respondents were ordered to pay the appellant's costs of the appeal, with a certificate granted under the *Suitors’ Fund Act 1951* (NSW) if otherwise qualified.
Orders
Orders of the court
1 Appeal allowed.
2 The orders made by Hammerschlag J on 15 August 2014 against the appellant be set aside, and in lieu thereof:
(a) there be judgment for the second defendant;
(b) the plaintiffs pay the second defendant’s costs of the trial.
3 The respondents pay the appellant’s costs of the appeal.
4 If otherwise qualified, the respondents have a certificate under the Suitors’ Fund Act 1951 (NSW).