Commissioner for Fair Trading v Rixon

Judgment 1By a Notice of Motion filed 24 September 2013, the NSW Commissioner for Fair Trading ("the Commissioner") seeks an order from the Court against Matthew Geoffrey Rixon that: "[He] is guilty of criminal contempt of this honourable Court having knowingly breached the consent orders made on 17 April 2013 as set out in the Statement of Charges." Consequential orders are sought. 2The Statement of Charges particularises allegations of contempt with respect to five different properties, which were as follows: (a)42 Lake Heights Road, Lake Heights; (b)53 Marshall Street, Dapto; (c)150 National Park Avenue, Loftus; (d)1 Star Street, Eastwood; (e)2 Gowan Bay Avenue, Mt Ousley. 3It is alleged that Mr Rixon was in breach of the Court's orders with respect to each of these properties, but in different ways. It will be convenient to refer to these properties by their suburb name.

Court Order 4On 17 April 2013, the Court made orders which accorded with a five page consent judgment. 5The consent judgment was signed by the solicitor for the Commissioner, and by Mr Rixon himself. There were two parts to the orders. The first related to the provisions of the Home Building Act 1989, and in particular s 138. The second, related to the provisions of s 233 of the Australian Consumer Law 2010. 6It is unnecessary here to set out the precise terms of each of the orders because the orders are set out in the Schedule to this judgment. However, in essentially identical terms, the orders prohibited Mr Rixon by means of a permanent injunction, from conducting, or being engaged in, or being involved in, in any capacity, whether directly himself, through the agency of another person or an employee, or through a company or other agency, from contracting to perform any residential building work, whilst ever he did not hold a valid contractor licence; representing by words or conduct that he or anybody with whom he was associated held a valid contractor licence or other appropriate certificate, when in fact that was not so; performing residential building work whilst ever he or any associated entity, was unlicensed; and finally, requesting or accepting payment for the performance or proposed performance of residential building work whilst ever he was not licensed. 7The orders prohibiting Mr Rixon from doing residential building work also prohibited him from contravening various provisions of the Australian Consumer Law, in particular s 36, which required that a condition upon accepting payment or consideration for any building work was that Mr Rixon, or any entity through which he was working, had to have reasonable grounds for believing that the services would be able to be provided within the time specified in the agreement, or else a reasonable time. As well, the orders addressed the provisions of s 61 of the Australian Consumer Law, which required that the residential building work provided needed to be reasonably fit for the purpose for which the services were being acquired. 8The orders were based on a document described as "Consent Judgment". It is regrettable, because it is productive of potential confusion, that parties choose to express their agreement in ways which are not procedurally accurate. There was no judgment actually entered in these proceedings. A judgment is the finalisation of a claim brought in proceedings where the end result is, in substance, an award of damages or else the rejection of a claim for an award of damages, at which point judgment for a defendant is entered. The original proceedings sought orders restraining Mr Rixon from behaving unlawfully. The resolution of such a claim is by the parties signing, or otherwise consenting to, short minutes of order, which enables orders to then be made by the Court, and incorporated into the Court record. 9However, in this case having regard to everything which has happened, and in light of the matters to which I will in due course refer, I am satisfied that there was no confusion at all in the mind of Mr Rixon as to what the Court had done, and as to what he was, or was not, permitted to do. 10The essence of the Court orders was that so long as he was unlicensed, Mr Rixon could not undertake "residential building work" as that term is defined in either the Home Building Act, or the regulations made under that Act. 11Section 3 of the Home Building Act includes the following definition: "Residential building work means any work involved in, or involved in co-ordinating, or supervising any work involved in: (a) the construction of a dwelling; or (b) the making of alterations or additions to a dwelling; or (c) the repairing, renovation, decoration or protective treatment of a dwelling. It includes work declared by the regulations to be roof plumbing work or specialist work done in connection with a dwelling and work concerned in installing a prescribed fixture or apparatus in a dwelling (or in adding to, altering or repairing any such installation)." 12Clause 5 of the Home Building Regulation 2004 extends the definition of a dwelling for the purposes of s 3(1) of the Home Building Act so that it includes stairways, passageways and the like, which provide access to a dwelling, decks, porches, verandas, pergolas and the like, and fences and gates. 13Each of the five properties with which these proceedings are concerned, were dwellings within the meaning of s 3 of the Home Building Act.