YTO Construction Pty Ltd v Bhatt - [2022] NSWDC 348

District Court

New South Wales

Medium Neutral Citation: YTO Construction Pty Ltd v Bhatt [2022] NSWDC 348
Hearing dates: 10, 11 August 2022
Date of orders: 18 August 2022
Decision date: 18 August 2022
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1) Judgment for the plaintiff against the defendant for $306,763.10.
(2) Order the defendant to pay the plaintiff’s costs.

Catchwords:
CONSUMER LAW – misleading or deceptive conduct – whether representations were misleading or deceptive – whether representations made to an adjudicator were also made to the plaintiff - whether the representations were made in trade or commerce – whether defendant made the representations – whether defendant was involved in making the representations – whether plaintiff suffered loss or damage because of the representations

Legislation Cited:
Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 23, 32
Competition and Consumer Act 2010 (Cth) Part XI; Sch 2 - Australian Consumer Law, ss 2, 18, 236
Fair Trading Act 1987 (NSW), Part 3, s 32

Cases Cited:
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304
CC Builders (Aust) Pty Ltd v Milestone Civil Pty Ltd [2019] NSWSC 1251
Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53; (2017) 94 NSWLR 606
Iskra v MMIR Pty Ltd [2019] NSWCA 126
March v Stramare E & MH Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151; (2017) 95 NSWLR 82
Southern Cross Electrical Engineering Ltd v Steve Magill Earthmoving Pty Ltd [2018] NSWSC 1027
Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661

Texts Cited:
Miller, Australian Competition and Consumer Law Annotated (43rd ed, Thompson Reuters 2021)

Category: Principal judgment
Parties: YTO Construction Pty Ltd (Plaintiff)
Ashish Bhatt (Defendant)
Representation:
Counsel:
A Vincent (Plaintiff)
A Bhatt (Self-represented)
Solicitors:
Philip J Pollack, Lawyer (Plaintiff)

File Number(s): 2020/154231

Judgment

Introduction

These proceedings concern an allegation by YTO Construction Pty Ltd (YTO) that it has suffered damage because of certain representations made in relation to an adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act).
YTO sues the defendant Mr Bhatt upon an Amended Statement of Claim filed on 1 November 2021. The defence of Mr Bhatt to the Amended Statement of Claim appears in his Amended Defence filed on 19 November 2021. Certain matters are admitted.
YTO is a corporation which carried on business as a builder. Mr Bhatt is an individual who is ordinarily resident in New South Wales and who was a director of Innovative Civil Pty Ltd (Innovative). Innovative was placed into external administration on 14 October 2019.
In July 2017 YTO and Innovative entered into a written construction contract pursuant to which Innovative undertook to carry out the piling, anchoring, shotcreting, capping beam and excavation works at a development site at 5 Markham Place and 7-9 Cavill Avenue at Ashfield (the site)…

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 YTO Construction Pty Ltd v Bhatt

Details

AGLC: YTO Construction Pty Ltd v Bhatt [2022] NSWDC 348
Case: [2022] NSWDC 348
Decision Date: 18 August 2022

CaseChat Overview and Summary

The plaintiff, YTO Construction Pty Ltd, sued the defendant, Bhatt, in the Federal Court of Australia, alleging breaches of the Australian Consumer Law, specifically regarding misleading or deceptive conduct. The dispute centred on whether Bhatt had made representations that were misleading or deceptive to YTO Construction, and if these representations were made in the course of trade or commerce. Additionally, the court had to determine whether Bhatt was involved in making these representations and if YTO Construction suffered loss or damage as a result.

The central legal issues before the court were whether the representations made by Bhatt to an adjudicator were also made to YTO Construction, and if these representations were indeed misleading or deceptive. The court had to establish whether these representations were made in the context of trade or commerce, whether Bhatt was the individual who made them, and if Bhatt was involved in their creation. The court also needed to ascertain whether YTO Construction suffered any loss or damage due to these representations.

The court found that Bhatt did make misleading or deceptive representations to YTO Construction, and these were made in the course of trade or commerce. The representations were found to be misleading or deceptive, and Bhatt was determined to be involved in their creation. The court further concluded that YTO Construction had suffered loss or damage as a consequence of these representations. Consequently, the court awarded judgment in favour of YTO Construction, ordering Bhatt to pay damages amounting to $306,763.10, along with the plaintiff's costs.

Orders

Orders of the court

(1) Judgment for the plaintiff against the defendant for $306,763.10.

(2) Order the defendant to pay the plaintiff’s costs.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	YTO Construction Pty Ltd v Bhatt [2022] NSWDC 348
Hearing dates:	10, 11 August 2022
Date of orders:	18 August 2022
Decision date:	18 August 2022
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Judgment for the plaintiff against the defendant for $306,763.10. (2) Order the defendant to pay the plaintiff’s costs.
Catchwords:	CONSUMER LAW – misleading or deceptive conduct – whether representations were misleading or deceptive – whether representations made to an adjudicator were also made to the plaintiff - whether the representations were made in trade or commerce – whether defendant made the representations – whether defendant was involved in making the representations – whether plaintiff suffered loss or damage because of the representations
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 23, 32 Competition and Consumer Act 2010 (Cth) Part XI; Sch 2 - Australian Consumer Law, ss 2, 18, 236 Fair Trading Act 1987 (NSW), Part 3, s 32
Cases Cited:	Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 CC Builders (Aust) Pty Ltd v Milestone Civil Pty Ltd [2019] NSWSC 1251 Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53; (2017) 94 NSWLR 606 Iskra v MMIR Pty Ltd [2019] NSWCA 126 March v Stramare E & MH Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151; (2017) 95 NSWLR 82 Southern Cross Electrical Engineering Ltd v Steve Magill Earthmoving Pty Ltd [2018] NSWSC 1027 Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661
Texts Cited:	Miller, Australian Competition and Consumer Law Annotated (43rd ed, Thompson Reuters 2021)
Category:	Principal judgment
Parties:	YTO Construction Pty Ltd (Plaintiff) Ashish Bhatt (Defendant)
Representation:	Counsel: A Vincent (Plaintiff) A Bhatt (Self-represented) Solicitors: Philip J Pollack, Lawyer (Plaintiff)
File Number(s):	2020/154231