Culleton v Tonks

Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111

Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

Australian Competition and Consumer Commission v We Buy Houses Pty Ltd [2017] FCA 915

Bark N Purr Pets Pty Ltd v Moussad [2024] NSWCATAP 201

Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50

Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734

Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3

Care A2 Plus Ply Ltd v Pichardo [2024] NSWCA 35

Chapman v Taylor & Ors; Vero Insurance Ltd. v Taylor & Ors [2004] NSWCA 456; (2005) Aust Contract Reports 90-205

CH Real Estate Pty Ltd v Jainran Pty Ltd; Boyana Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37; (2010) 14 BPR 27,361

Collins v Urban [2014] NSWCATAP 17

Commissioner of Victims Rights v Dobbie [2019] NSWCA 183

Gould v Vaggelas (1984) 157 CLR 215; [1984] HCA 68

Hamilton v Whitehead (1988) 166 CLR 121; [1988] HCA 65

Houghton v Arms (2006) 225 CLR 553; [2006] HCA 59

Impala Kitchens Pty Ltd v O'Donoghue [2025] NSWCATAP 49

John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

Lin v Zheng [2023] NSWCA 174

Maclean v Brylewski [2023] NSWCA 173

Medical Council of New South Wales v Mooney [2024] NSWCA 180

Mills v Walsh [2022] NSWCA 255

Robinson v BMF Pty Ltd (in liq) (No 2) [2022] FCA 1191

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54

Yuen v Thom [2016] NSWCATAP 243

1. This is an internal appeal from a decision of the Tribunal constituted by Senior Member K Ross made on 20 November 2024 in the Consumer and Commercial Division (the 20 November 2024 decision) in proceedings under the Home Building Act 1989 (NSW) (HB Act) and the Fair Trading Act 1987 (NSW) (FT Act) concerning a dispute between the first and second respondents, Debra Tonks (Mrs Tonks) and Craig Tonks (Mr and Mrs Tonks where referred to together) who are the owners of a property at Charlestown in New South Wales (the property), and the first appellant, William Joseph Culleton (Mr Culleton), the second appellant, Steelbond Australia Pty Ltd which carries on business under the name Town and Country Roof Restorations (Steelbond) and the third respondent Ronald Lawrence (Mr Lawrence). Steelbond is the builder that carried out residential building work upon the dwelling at the property under a building contract with Mr and Mrs Tonks (the building contract). Mr Culleton is the director of Steelbond. Mr Lawrence, who was an employee of Black Diamond Site Services Pty Ltd (Black Diamond) supervised the residential building work at the property.
2. The appeal by Mr Culleton and Steelbond, which raises questions of law and otherwise requires leave to appeal, is against the following part of the 20 November 2024 decision: the money order of $61,993.53 in favour of Mr and Mrs Tonks (the money order).
3. In determining the appeal, we have set out our approach to the conduct of the appeal, the key statutory provisions, the applicable legal principles, the factual background, and the history of the proceedings at first instance and on appeal. We have then considered the issues arising on the appeal before setting out our conclusions and orders.
4. We have made the following decision:

(1) the appeal should be dismissed;

(2) leave to appeal should be refused;

(3) Mr Culleton and Steelbond should pay the costs of the appeal of Mr and Mrs Tonks on the ordinary basis as agreed or assessed.

1. In conducting the appeal, we have followed the following approach:

(1) we have decided the threshold question of whether the appeal is on one or more questions of law;

(2) to the extent that the appeal is one or more questions of law, we have decided whether the Tribunal either answered that question or proceeded on an assumption concerning that answer, whether its answer or assumption was correct or incorrect, and whether that answer or assumption was material to the outcome, in the sense that it could have affected the outcome: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 (Bimson, Roads & Maritime) at [41] (Beech-Jones J) citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 353 (Mason CJ); cited with approval together with other authorities in Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54 at [53]- [54];

(3) to the extent that leave to appeal is sought, we have decided whether leave to appeal should be granted in accordance with the principles in Collins v Urban [2014] NSWCATAP 17 (Collins) at [76]-[84], and if so whether any relief should be granted in respect of any material error;

(4) we have set out our conclusions;

(5) we have then decided the costs of the appeal;

(6) we have conducted the appeal as a rehearing on the materials before the Tribunal to determine whether the money order is the result of some legal, factual or discretionary error: Yuen v Thom [2016] NSWCATAP 243 at [14]- .

1. Part 6 Division 2 (ss 80-81) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) contains provisions dealing with internal appeals. An appeal against an internally appealable decision may be made in the case of any kind of decision (including an ancillary decision) other than an interlocutory decision as of right "on any question of law", or with the leave of the Appeal Panel, on any other grounds: s 80(1) and (2)(b).
2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are where it is satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable, or the decision of the Tribunal under appeal was against the weight of evidence, or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with): cl 12(1)(a), (b) and (c) of Sch 4.
3. The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including, but not limited to, any one or more of orders specified in s 81(1). This includes an order that the appeal is to be dismissed: s 81(1)(a).

1. Part 2 Div 1 (ss 4-11) contains provisions dealing with contracting for residential building work and specialist work. Section 4 deals with unlicensed contracting, and relevantly provides:

4 Unlicensed contracting

(1) A person must not contract to do -

(a) any residential building work, or

(b) any specialist work,

except as or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work.

Maximum penalty - 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.

1. Section 5 deals with seeking work by or for an unlicensed person, and relevantly provides:

5 Seeking work by or for unlicensed person

(1) An individual, a member of a partnership, an officer of a corporation or a corporation must not represent that the individual, partnership or corporation is prepared to do -

(a) any residential building work, or

(b) any specialist work,

if the individual, partnership or corporation is not the holder of a contractor licence authorising its holder to contract to do that work.

1. Part 2C (ss 18A-18G) contains provisions dealing with statutory warranties. Section 18BA deals with the duties of a person having the benefit of a statutory warranty, and relevantly provides:

18BA Duties of person having benefit of statutory warranty

(1) Breach of a statutory warranty implied in a contract constitutes a breach of the contract and accordingly -

(a) a party to the contract who suffers loss arising from the breach has a duty to mitigate their loss, and

(b) the onus of establishing a failure to mitigate loss is on the party alleging the failure.

1. Part 3 Division 2 (ss 27-32) provides for the application of the Australian Consumer Law (relevantly comprising Schedule 2 to the Competition and Consumer Act 2010 (Cth)) as in force from time to time as a law of New South Wales, its reference as the Australian Consumer Law (NSW) (ACL), and its inclusion as part of the FT Act.

1. Chapter 1 (ss 1-17) contains introductory provisions. Section 2 contains definitions, and relevantly provides:

...

involved: a person is involved, in a contravention of a provision of this Schedule or in conduct that constitutes such a contravention, if the person:

(a) has aided, abetted, counselled or procured the contravention; or

(b) has induced, whether by threats or promises or otherwise, the contravention; or

(c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or

(d) has conspired with others to effect the contravention.

...

1. Chapter 2 Part 2.1 (ss 18-19) contains provisions dealing with misleading or deceptive conduct. Section 18 relevantly provides:

18 Misleading or deceptive conduct

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

...

1. Chapter 5 Part 5.2 Division 3 (s 236) contains a provision dealing with damages. Section 236 relevantly provides:

236 Actions for damages

(1) If:

(a) a person (the claimant) suffers loss or damage because of the conduct of another person; and

(b) the conduct contravened a provision of Chapter 2 or 3;

the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.

Question of law within s 80(2)(b) of the NCAT Act

1. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique Commercial Group) at [25]-[40], the Appeal Panel considered the nature of a question of law within the meaning of s 80(2)(b) of the NCAT Act.
2. The constructive failure to exercise jurisdiction by failing to respond to substantial, clearly articulated arguments based on established facts raises a question of law: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 (Alexandria Landfill) at [6], [20]-[22] (Basten JA); cited with approval in Unique Commercial Group at [32(4)].
3. The interpretation of, relevantly, a statute, is directed to the ascertainment of the document's actual and true meaning. When the document is properly construed, there is only one correct meaning. It is for this reason that the proper construction of a statute is a question of law: Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50 (Bianco Walling) at [66] (Flick, White and Perry JJ); cited with approval in Unique Commercial Group at [32(2)].
4. The application of a wrong principle of law is a question of law: Chapman v Taylor & Ors; Vero Insurance Ltd. v Taylor & Ors [2004] NSWCA 456; (2005) Aust Contract Reports 90-205 () at [33] (Hodgson JA with Beazley JA at [1] and Tobias JA at [47] agreeing); cited in () at [13(3)]; in turn cited with approval in at [32(2)]. Applying the wrong principles evinces a misconstruction of the statute: at [34(1)].

1. In Collins, the Appeal Panel at [76] stated that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where:

"... there was a 'significant possibility' or a 'chance which was fairly open' that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." (emphasis in original)

1. In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that:

(1) if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act;

(2) the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach.

1. The test of whether evidence is reasonably available for the purpose of cl 12(1)(c) of Sch 4 of the NCAT Act is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23].
2. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act: Bark N Purr Pets Pty Ltd v Moussad [2024] NSWCATAP 201 at [25].
3. In Collins, the Appeal Panel at [84] set out the general principles which govern the granting of leave to appeal. These general principles were recently summarised by the New South Wales Court of Appeal in Maclean v Brylewski [2023] NSWCA 173 at [24] (Ward P and Simpson AJA):

"[24] It is not disputed that leave to appeal is necessary. In determining whether leave to appeal should be granted, something more must be demonstrated than that the primary judge's decision was arguably wrong. What is ordinarily required to be demonstrated is that the matter involves a question of principle or of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable. Moreover, where, as here, the decision the subject of the application for leave to appeal involves an exercise of discretion, what is required to be demonstrated is error in the House v The King sense." (citations omitted)

1. We note that Appeal Panels have taken a range of approaches that Appeal Panels to the interpretation and application of s 80(2)(b) and cl 12 of Sch 4 of the NCAT Act. In some cases, the reasons for leave to appeal within cl 12 were treated as the grounds, and in other cases, they were treated as hurdles for leave to appeal on the grounds already identified by the appellant in the notice of appeal: Impala Kitchens Pty Ltd v O'Donoghue [2025] NSWCATAP 49 at [67].

1. At all relevant times, Steelbond did not hold a contractor licence under the HB Act.
2. On 9 May 2022, Steelbond entered into the building contract with Mr and Mrs Tonks which was comprised in the following two documents of Steelbond:

(1) work order #2270 providing for the removal and disposal of the existing asbestos roof and any asbestos moulding, guttering and downpipes for $24,354.00 inclusive of GST;

(2) work order #2269 providing for the installation of insulation and a new roof including associated works $20,000.00 inclusive of GST.

1. Prior to entry into the building contract, Mrs Tonks had conversations with Mr Culleton and viewed Steelbond's website.
2. A dispute arose between the parties as to whether significant damage to the insulation, ceiling and walls of the dwelling by water ingress was caused by defective building work or was pre-existing.

The history of the proceedings at first instance

1. On 21 December 2023, Mr and Mrs Tonks as the applicants commenced proceedings 2023/00463720 in the Consumer and Commercial Division against Steelbond and Mr Lawrence as the respondents by lodging an application notice in which they sought a money order for the payment of $80,000 plus costs (the Tonks application).
2. On 22 May 2024, the Tribunal constituted by Senior Member G Ellis SC made procedural orders for the hearing of the Tonks application (the 22 May 2024 orders) including order 3 granting leave to Mr and Mrs Tonks to amend the Tonks application by adding a claim against Mr Culleton, order 4 joining Mr Culleton as a respondent and order 8 refusing the application of Steelbond and Mr Lawrence to add Black Diamond as a respondent.
3. On 28 May 2024, Mr and Mrs Tonks lodged their amended points of claim (the Tonks amended claim) which relevantly included:

(1) a claim against Steelbond for breach of the statutory warranties under the HB Act ([5]-[12]);

(2) a claim against Mr Lawrence for negligence ([13]-[18]);

(3) a claim against Mr Culleton for breaching s 18 of the ACL based on the representations he made to Mr and Mrs Tonks including that Steelbond was licensed to do the works and had a team of experienced and qualified roofing professionals ([19]-[24]).

1. On 12 June 2024, Steelbond and Mr Culleton lodged their points of defence (the Steelbond/Culleton defence) in which:

(1) Steelbond relevantly alleged that Mr and Mrs Tonks failed to comply with their duty to mitigate their loss under s 18BA of the HB Act in respect of damage cause by pre-existing water ingress ([17]);

(2) Mr Culleton relevantly:

(a) admitted making the representation that Steelbond was licensed to do the works and had a team of experienced and qualified roofing professionals ([20]);

(b) alleged that the representations if made were "mere puffery" ([26]).

(c) alleged that the representations that Steelbond was licensed to do the works if found to be made was "mere puffery" ([26]);

(d) alleged that he was not a party to the building contract ([28]).

1. On 16 August 2024, the hearing of the proceedings took place. At the hearing the documents of the parties were contained in a "Court Book and Tender Bundle" (the first instance bundle) which relevantly included:

(1) Affidavit of Mrs Tonks sworn on 21 May 2024 (the 21 May 2024 Mrs Tonks affidavit);

(2) Outline of Submissions - First and Third Respondents dated 12 August 2024 (the Steelbond/Culleton submissions).

1. On 20 November 2024, the Tribunal made the 20 November 2024 decision relevantly comprising the following orders (the 20 November 2024 orders), and reasons (the 20 November 2024 reasons):

"(1) The application against Ronald Lawrence is dismissed.

(2) Steelbond Australia Pty Ltd and William Culleton are jointly and severally to pay to Craig Tonks and Debra Tonks the sum of $61,993.53 on or before 19 December 2024.

...

1. As the appeal does not challenge order (1), and order (2) of the 20 November 2024 orders except in relation to the alleged failure of Mr and Mrs Tonks to mitigate their loss, we have not summarised the 20 November 2024 reasons on these issues.
2. In the 20 November 2024 reasons, the Tribunal relevantly:

(1) summarised the position of the parties with respect to the Tonks amended claim ([1]-[4]);

(2) found that the Tribunal had jurisdiction to determine the Tonks amended claim and set out the legal principle for determining misleading and deceptive conduct under s 18 of the ACL ([5]-[9]);

(3) set out the issues to be determined ([10]);

(4) after setting out the relevant evidence found that the parties to the building contract were Steelbond of the one part, and Mr and Mrs Tonks of the other part ([11]-[24]). The evidence of Mrs Tonks included ([14]):

"14 Mrs Tonks said that before the roof was replaced, there was no evidence that it was leaking. She disputed having told Steelbond that it was. She said that she was interested in replacing some of the ceilings because she didn't like their patterned look."

(5) found that the work did not comply with the statutory warranties under the HB Act and the cost of its rectification was $61,993.53 ([25]-[58]) including:

(a) the following account of the differences in the expert evidence ([28]-[29]):

"28 The differences between the experts in respect of the scope of the rectification works arise from two main areas of disagreement. The respondent's expert said that in his opinion, damage in the upper section of the house was caused by previous water ingress. He based this conclusion on information supplied to him by Mr Culleton to the effect that the applicants intended to replace the ceilings because of previous damage, evidence disputed by Mrs Tonks. He relied upon an enquiry card for the replacement of the roof which recorded:

"Comments: LEAKING, ASBESTOS REMOVAL, WANT TO INSTALL SOLAR PANELS, GOVERNMENT REBATE".

29 The second difference arose because the respondent's expert said that the internal rectification work should be based on a mould inspection carried out on 13 April 2023, whereas the applicant's expert based his rectification on the mould report carried out in February 2024. He argued that because the homeowners were aware of the issues, they had an obligation to prevent further deterioration in the premises internally."

(b) the following findings with respect to the questions of whether Mr and Mrs Tonks failed to mitigate their loss and the damage to the interior of the dwelling was pre-existing ([49]-[57]):

"49 The respondents argue that the applicants had an obligation to mitigate the loss. They say that the difference between the state of the interior of the property in 2023 and 2024 is as a result of their failure to do so, and that accordingly the respondents should not be required to pay the cost of the rectification at the later date.

50 In considering this submission I take into account that the applicants replaced the majority of the ridge capping, promptly after that issue was pointed out to them by Caleb O'Brien. The roof was also covered with a tarpaulin. None of the respondents was licensed to rectify the defective work nor the damage caused to the interior of the property and thus it was reasonable for the applicants to refuse to allow them access to carry out the rectification works. It was necessary for the applicants to bring these proceedings to resolve the dispute.

51 For these reasons I am satisfied that the applicants are entitled to compensation for the cost of rectifying the issues as they exist in 2024.

52 The second issue which differentiated the parties related to whether there was pre-existing damage internally at the time Steelbond were contracted to replace the roof. On this issue I prefer the evidence of Mrs Tonks, that there was no damage, and that the roof was not leaking so far as the homeowners knew. She gave consistent evidence to that effect. She presented as an honest witness. It is her home, and she is best placed to recall the state internally.

53 On the other hand Mr Culleton was relying in part upon the enquiry card as evidence that there was leaking when Mrs Tonks approached them to have the roof replaced. In his statement, Mr Culleton says that Mrs Tonks said words to the effect:

"I would like to have a quote for removal of an asbestos roof and have it replaced with a metal roof."

54 Mr Culleton said he understood that the existing roof was leaking, but it is unclear why he came to that understanding when he does not relate any conversation with the homeowners stating that the roof was leaking.

55 I am therefore satisfied that the applicants are entitled to rectification in accordance with their expert's scope of work, and for the reasons set out above, I prefer his costings."

(6) found that there should be a money order rather than a work order ([59]-[60]);

(7) found under the heading "Did Mr Culleton engage in misleading or deceptive conduct? Is there any basis for an order to be made against him personally?" that Mr Culleton engaged in misleading or deceptive conduct by representing to Mrs Tonks that "the work on her roof would be carried out by appropriately licensed, qualified and experienced tradesmen" (the impugned representation) ([61]-[72]) including the following conclusion ([72]):

"72 I am satisfied that Mr Culleton gave no meaningful consideration to the representations on his company's website, and whether they were true. I am satisfied that he did represent to Mrs Tonks that his company was licensed. I am not satisfied that he explained to Mrs Tonks the role which Black Diamond Services was to play. Overall, both by his failure to correct the statements made on the website, and the statements made to Mrs Tonks when he first came to the property, he represented to her that the work on her roof would be carried out by appropriately licensed, qualified and experienced tradesmen. This representation was untrue. It was likely to mislead or deceive a consumer, and indeed it did mislead Mrs Tonks."

(8) found that Mrs Tonks relied upon the impugned representation in entering into the building contract, Mr and Mrs Tonks suffered loss as a consequence of the work being carried out in a defective manner, and Mr Culleton was jointly and severally liable with Steelbond to Mr and Mrs Tonks for the loss they had suffered ([73]):

"73 I am satisfied that Mrs Tonks relied upon the representations made by Mr Culleton in entering into the contract. I accept her evidence that she would not have entered into the contract if she had known that the work on her roof would not be undertaken by licensed tradespersons. I am satisfied that the applicants have suffered loss as a consequence of the work being carried out in a defective manner. I am satisfied that Mr Culleton is jointly and severally, with Steelbond, liable to the applicants for the loss they have suffered."

(9) found that there was no basis for an order against Mr Lawrence personally and the application against him should be dismissed ([74]-[75]);

1. On 18 December 2024, Mr Culleton as the appellant commenced proceedings 2025/00001155 against Mr and Mrs Tonks as the respondents by lodging a notice of appeal.
2. On 20 January 2025, Mr and Mrs Tonks lodged their reply to appeal.
3. On 24 January 2025, the Appeal Panel (differently constituted) granted leave to the parties to be legally represented, and made orders for the hearing of the appeal including for Mr Culleton and Steelbond to lodge and serve an amended notice of appeal. The Appeal Panel drew attention to the principles in Unique Commercial Group at [25]-[40].
4. On 7 February 2025, Mr and Mrs Tonks lodged a reply to the amended notice of appeal.
5. On 10 February 2025, Mr Culleton and Steelbond as the first and second appellants lodged an amended notice of appeal.
6. On 21 February 2025, Mr and Mrs Tonks lodged a reply to the further amended notice of appeal.

1. At the hearing, Mr Culleton and Steelbond were represented by their solicitor Mr Mulipola. Mr and Mrs Tonks were represented by their solicitor Ms Wilson.
2. At the commencement of the appeal:

(1) we made consent orders naming Mr Lawrence as the third respondent and dispensing with service of any documents in the appeal on him;

(2) we made a consent order granting leave to Mr and Mrs Tonks to rely on their reply to the further amended appeal;

(3) we made an order dismissing the application of Mr Culleton and Steelbond to adjourn the hearing of the appeal because a medical condition suffered by Mr Culleton prevented him from attending the hearing and gave oral reasons for our decision. We arranged for the hearing to be accessed virtually by Mr Culleton and gave his solicitor an opportunity to contact him to obtain instructions;

(4) we made an order dismissing the application of Mr Culleton and Steelbond to lodge a further amended notice of appeal to appeal against order 8 of the 22 May 2024 orders and gave oral reasons for our decision.

1. The parties relied on the first instance bundle together with the transcript of the hearing at first instance (the 16 August 2024 transcript), and an appeal book containing the documents relating to the appeal which included Appellants' Written Submissions dated 17 February 2025 (the Culleton/Steelbond appeal submissions).
2. Mr and Mrs Tonks also relied on the Respondents' Supplementary Submissions regarding ACL dated 2 May 2025 (the Tonks supplementary appeal submissions).

Whether the appeal is on one or more questions of law

1. Mr Culleton and Steelbond in the amended notice of appeal "identify and raise the following amended grounds of appeal and questions of law":

"1. Failure to Consider Central Submissions Made by the Appellant

The Tribunal erred by failing to consider substantial, clearly articulated submissions both written and oral made by the appellants which amounts to an error of law, jurisdictional error, and/or denial procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.

PARTICULARS

Home Building Act claims

a) The Tribunal failed to consider central submissions of the appellants that:

i. The Respondent's witness, Ms Tonks, lacked credibility and had knowledge of pre-existing leaks damage and the extent of mould damage in an independent hygienist report, given contemporaneous evidence.

iii. The Respondents failed to mitigate their loss as a person having the benefit of a statutory warranty under s 18BA of the Home Building Act 1989 (NSW) ("HB Act"). This submission was raised in the Points of Defence and referred to during the hearing and submissions. There was credible evidence of the existence of leaks disclosed to the appellants prior to the contract, and the lack of credible evidence showing the Respondent's took reasonable action to mitigate their loss.

It is noted that the appropriate remedy for breach of s 18BA by the Appeal Panel, is a reduction of damages: s 18BA(4).

Misleading and deceptive conduct claims

b) The Tribunal failed to consider central submissions that:

i. The Tribunal should not use s 18 of Schedule 2 to the Competition and Consumer Act 2010 (0th) (the Australian Consumer Law) ("ACL") to improperly "pierce the corporate veil" to hold Mr Culleton personally liable where there is no privity of contract, contrary to the principle in Salomon v Salomon & Co Ltd [1897] AC 22 ("Salomon"). A very high level of misconduct or breach should be found before a director is personally liable: Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35.

ii. There was no or unreliable evidence that the Respondent read or relied on the website's content concerning licensing status or statement we do not subcontract' or that induced her to enter a contract with Steelbond Australia Pty Ltd. There was evidence the appellant company was referred to her by a friend. During cross-examination, the respondent could not recall typographical errors or the statement 'we do not subcontract:' Mills v Walsh [2022] NSWCA255.

iii. There were arguments in defence that, if the representations asserted were made, they were 'mere puffery' and would not have mislead an ordinary consumer: Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12; (2000) 202 CLR 45.

2. Whether an individual may be found personally liable for the actions of a company under s 18 of the Australian Consumer Law (ACL)

Whether the Tribunal misconstrued s 18 of the ACL in finding an individual, specifically a company director, liable for the actions and representations of a company made and performed under a contract, under s 18 of the ACL.

PARTICULARS

a. Section 18 of the ACL provides: "A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive."

b. The appellants concede/d that s 18 of the AOL could be interpreted to apply to an individual, as a 'person.'

c. The appellants do not concede that s 18 of the ACL could apply to an individual company director where that director did not engage in fraud, misconduct or bad faith: Salomon. In Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35, Bell CJ, Stern JA and Basten AJA found there was serious fraudulent misrepresentation by a director which amounted to tortious deceipt and accessorial liability to found liability.

d. The actions of Mr Culleton personally were not 'conduct' engaged in 'in trade or commerce.' That conduct, if at all, was engaged in by the company, Steelbond Australia Pty Ltd.

e. Section 18 of the ACL is limited to conduct that is engaged in 'in trade or commerce'. The word 'in' is limiting: Re Ku-ring-gal Co-op Building Society (No 12) Ltd ; at 624-5. The conduct in question must be a part of the corporation's trade or commercial activities and not merely incidental to them, that is, they must bear a trading or commercial character: Concrete Constructions (NSW) Pty Ltd v Nelson ;

1. Mr and Mrs Tonks in their reply to the amended notice of appeal contended that Mr Culleton and Steelbond had failed to clearly identify questions of law and/or how it is alleged that the Tribunal made an error in respect to those questions of law.
2. During the hearing we raised with the solicitor of Mr Culleton and Steelbond that the amended notice of appeal did not specify any questions. He contended that the questions of law were to be discerned by treating the grounds as if the word "whether" was placed at the beginning.

1. The question of law must be articulated with precision in the notice of appeal itself, and is not to be distilled from the ground of appeal as explained in Medical Council of New South Wales v Mooney [2024] NSWCA 180 (Mooney) at [95]-[97] (Leeming JA with Kirk JA at [141] and Price AJA at [142] agreeing):

"[95] ... However, it is desirable for a notice of appeal in an appeal which is limited to questions of law to identify with precision what the question of law is. As was said in a similar context, "The questions of law are not to be distilled from the grounds of appeal": Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21]. It is after all the claimed existence of the question of law which founds an appellant's entitlement to appeal as of right. Put another way, the first thing the appellate court must do is determine whether it has jurisdiction, and it will have no jurisdiction to determine the purported appeal on the merits unless it discloses a question of law.

[96] This is far from the first time the restrictions upon rights of appeal have been ignored. In Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71] I referred to:

the importance of those contemplating bringing an appeal which is confined to a question of law attending to the statute and identifying the question of law. That obligation is not satisfied by rolled up allegations asserting error of law, still less by grounds which merely allege 'error'. It should be possible for the reader of a notice of appeal to apprehend what the question or questions of law are.

[97] These points have been made, repeatedly, by this Court in relation to various regimes where appeals are confined to questions of law: see Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22] ('necessary for the notice of appeal to identify precisely the particular question or questions of law'); Kudrynski v Orange City Council [2024] NSWCA 33 at [48] ('it is critical that an appellant clearly identify the question of law which is the subject of the appeal'); Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13] ('the respondent did not identify the questions of law that were the subject matter of the appeal, but rather asserted the magistrate erred in law in various ways. This was wrong'). ..."

1. In Unique Commercial Group at [26]-[27], the Appeal Panel said:

"[26] The review above demonstrates that great care must be taken in drafting a notice of appeal to ensure that it is apparent, on its face, that the ground of appeal raises a question of law. If not, leave to appeal is necessary.

[27] Where, however, there is a question of law in substance, a court (and, it follows, an Appeal Panel) has discretion (to be exercised judicially and in the interests of justice) to direct its formal notification in an amended notice of appeal: Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [60]. In appropriate circumstances, the Appeal Panel may elect to waive the requirement to formally lodge an amended notice of appeal, given its mandate to act "with as little formality as the circumstances of the case permit ... without regard to technicalities or legal forms": NCAT Act, s 38(4); Wollondilly at [19]. Where the party is not legally represented, a more generous approach is warranted: Kudrynski at [50]-[51]. This is an aspect of ensuring procedural fairness."

1. The amended notice of appeal is an unsatisfactory document as it does not clearly specify the questions of law raised and includes material that is in the form of submissions. Although Appeal Panels adopt a benevolent approach to appeal grounds prepared by unrepresented appellants, this does not extend to appellants represented by legal practitioners.
2. As Mooney at [95] makes clear, while it is desirable, there is no requirement that a notice of appeal state the question or questions of law. Further, as explained in Unique Commercial Group at [27], the Appeal Panel may elect to waive the requirement to formally lodge an amended notice of appeal setting out the question or questions of law.
3. Having considered the amended notice of appeal, we understand that Mr Culleton and Steelbond are in substance raising the following questions:

(1) as to the first limb of the first ground of appeal, whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider whether Mrs Tonks lacked credibility and had knowledge of pre-existing leaks damage and the extent of mould damage;

(2) as to the second limb of the first ground of appeal, whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider whether Mr and Mrs Tonks failed to mitigate their loss;

(3) as to the third limb of the first ground of appeal, whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider whether s 18 of the ACL should not be used to improperly "pierce the corporate veil" to hold Mr Culleton personally liable where there is no privity of contract, contrary to the principle in Salomon v Salomon & Co Ltd [1897] AC 22 (Salomon);

(4) as to the fourth limb of the first ground of appeal, whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider whether there was no or unreliable evidence that Mrs Tonks read or relied on the content of Steelbond's website concerning licensing status or the statement 'we do not subcontract' or that induced her to enter into the building contract;

(5) as to the fifth limb of the first ground of appeal, whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider whether the impugned representation was "mere puffery";

(6) as to the second ground of appeal, whether the Tribunal misconstrued s 18 of the ACL and applied a wrong principle of law in finding that Mr Culleton was jointly and severally liable with Steelbond for the loss suffered by Mr and Mrs Tonks by reason of its contravention.

1. Having regard to the principles in Alexandria Landfill at [6], [20]-[22], we are satisfied that each of the first to fifth limbs of the first ground of appeal raises a question of law.
2. Having regard to the principles in Bianco Walling at [66] and Chapman at [33], we are satisfied that the second ground of appeal raises a question of law.
3. The third ground of appeal raises the alleged error of legal unreasonableness under the heading "Findings that were Irrational, Illogical or Legally Unreasonable". The New South Wales Court of Appeal has explained that "legal unreasonableness is a shorthand for the proposition that a statute conferring a discretionary power on an administrative officer impliedly imposes a constraint on the exercise of the power, namely that it be exercised fairly, rationally and reasonably": Commissioner of Victims Rights v Dobbie [2019] NSWCA 183 at [39] (Basten JA with Leeming JA at [57] agreeing). The Tribunal in determining the proceedings at first instance was exercising judicial power as explained in the analogous situation of the determination of rights under the Anti-Discrimination Act 1977 (NSW): Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3 at [30] (Leeming JA with Bathurst CJ at [1] and Beazley P at [2] agreeing). As the Tribunal was not exercising its administrative review jurisdiction, this third ground of appeal cannot arise in the context of this appeal. Further, this ground of appeal does not concern the exercise of a discretion. In any event, most of the contentions raised are as a matter of substance covered by the first and second grounds of appeal. So far as Mr Culleton contends that the Tribunal was in error in permitting the Tonks amended claim as against him there is no appeal against orders 3 and 4 of the 22 May 2024 orders.

(1) the first and second limbs of the first ground of appeal (knowledge of pre-existing leaks damage and failure to mitigate loss);

(2) the fourth limb of the first ground of appeal (reliance on Steelbond's website);

(3) the fifth limb of the first ground of appeal (puffery);

(4) the third limb of the first ground of appeal and the second ground of appeal (personal liability of Mr Culleton).

The first and second limbs of the first ground of appeal (knowledge of pre-existing leaks damage and failure to mitigate loss)

1. Steelbond in the Steelbond/Culleton defence at [17] raised the defence that Mr and Mrs Tonks failed to comply with their duty to mitigate their loss under s 18BA of the HB Act in respect of damage cause by pre-existing water ingress.
2. Steelbond in the the Steelbond/Culleton submissions relevantly made the following submissions:

"...

13. The First and Third Respondents reiterate the Applicants did not take steps to mitigate their loss for more than one year, denying the First, Second and Third Respondents entry to rectify the incorrect ridge capping (when no party knew Steelbond was unlicensed): s 18BA HB Act. Mrs Tonks was aware of gyprock damage prior to entering into the contract and, indeed, had said to Mr Pickett they had suffered ill health: The Owners Strata Plan 62930 v Kell and Rigby [2010] NSWSC 612.

...

17. Mr Culleton is a respected businessman and truthful witness and his account of events should be preferred to the Applicant's, Mrs Tonks.

..."

1. The first and second limbs of the first ground of appeal raise the following questions:

(1) whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider whether Mrs Tonks lacked credibility and had knowledge of pre-existing leaks damage and the extent of mould damage, and whether Mr and Mrs Tonks failed to mitigate their loss;

(2) if so, whether the constructive failure to exercise jurisdiction was material to the outcome;

(3) if so, whether any relief should be granted.

Whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider whether Mrs Tonks lacked credibility and had knowledge of pre-existing leaks damage and the extent of mould damage, and whether Mr and Mrs Tonks failed to mitigate their loss

1. Mr Culleton and Steelbond in the Culleton/Steelbond appeal submissions made the following submissions:

(1) the Tribunal failed to consider their central submissions under the HB Act:

(a) Mrs Tonks lacked credibility and had knowledge of pre-existing leaks damage and the extent of mould damage in an independent hygienist report:

(b) Mr and Mrs Tonks failed to mitigate their loss. This submission was raised in the Steelbond/Culleton defence and referred to during the hearing and submissions. There was credible evidence of the existence of leaks disclosed to Mr Culleton prior to the building contract, and the lack of credible evidence showing they took reasonable action to mitigate their loss;

(2) the Tribunal mischaracterised their submission which was that pre-existing leaks meant that Mrs Tonks lacked credibility;

(3) the Tribunal mischaracterised their submission which was that the pre-existing leaks meant that the duty to mitigate arose from damages that occurred prior to the building contract.

1. Mr and Mrs Tonks in their reply to the amended notice of appeal contend that there is no basis for the submission that the Tribunal did not consider the credibility of Mrs Tonks and the failure of Mr and Mrs Tonks to mitigate their loss.

1. We do not accept that the Tribunal made an error of law in constructively failing to exercise its jurisdiction by failing to consider whether Mrs Tonks lacked credibility and had knowledge of pre-existing leaks damage and the extent of mould damage, and whether Mr and Mrs Tonks failed to mitigate their loss for the following reasons:

(1) this issue the failure of Mr and Mrs Tonks to mitigate their loss was predicated on the existence of pre-existing damage to the interior of the dwelling by water ingress;

(2) the Tribunal dealt with this anterior issue. It set out the evidence of Mrs Tonks and of the experts in the 20 November 2024 reasons at [14], [28]-[29]. It explained why it preferred the evidence of Mrs Tonks to that of Mr Culleton in the 20 November 2024 reasons at [52]-[54]. The Tribunal did not mischaracterise the submissions of Mr Culleton and Steelbond, but rejected them;

(3) in view of this finding, it was unnecessary for the Tribunal to consider the issue of whether Mr and Mrs Tonks failed to mitigate their loss because this issue did not arise for decision.

1. It follows that we reject the first and second limbs of the first ground of appeal.

If so, whether the constructive failure to exercise jurisdiction was material to the outcome

1. As we have decided that the Tribunal did not constructively fail to exercise its jurisdiction by failing to consider whether Mrs Tonks lacked credibility and had knowledge of pre-existing leaks damage and the extent of mould damage, and the issue of whether Mr and Mrs Tonks failed to mitigate their loss did not arise for consideration, these two questions do not arise for determination.

The fourth limb of the first ground of appeal (reliance on Steelbond's website)

1. The fourth limb of the first ground of appeal raises the following questions:

(1) whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider whether there was no or unreliable evidence that Mrs Tonks read or relied on the content of Steelbond's website concerning licensing status or the statement 'we do not subcontract' or that induced her to enter into the building contract;

(2) if so, whether the constructive failure to exercise jurisdiction was material to the outcome;

(3) if so, whether any relief should be granted.

Whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider whether there was no or unreliable evidence that Mrs Tonks read or relied on the content of Steelbond's website concerning licensing status or statement 'we do not subcontract' or that induced her to enter into the building contract

1. Mrs Tonks in the 21 May 2024 Mrs Tonks affidavit at [11] gave the following evidence:

"11. At no time did Mr Culleton say to me that Steelbond would not in fact be the company that would be undertaking the work. Mr Culleton did not tell me that Steelbond would be outsourcirtg the roofing work to another company or another tradesperson. He did not tell me that Steelbond itself was not licensed to do the roofing work at all. I relied on the representations made by Mr Culleton to me in person and on the representations contained on the Website that Steelbond were qualified, licensed and employed an experienced team of roofing contractors."

1. We are satisfied from our examination of the 16 August 2024 transcript that Mrs Tonks was not cross-examined on the 21 May 2024 Mrs Tonks affidavit at [11].
2. Steelbond and Mr Culleton did not raise the issue of lack of reliance by Mrs Tonks on the content of Steelbond's website concerning licensing status or statement 'we do not subcontract' the Steelbond/Culleton defence or the Steelbond/Culleton submissions.
3. Neither Mr Culleton and Steelbond in the Culleton/Steelbond appeal submissions nor their solicitor in his oral submissions addressed this issue.
4. The principles as to reliance on representations is well established, and were recently explained by the New South Wales Court of Appeal in Lin v Zheng [2023] NSWCA 174 (Lin) at [49]-[53] (Payne JA with Bell CJ at [1] and White JA at [97] agreeing):

"[49] The primary judge acted upon the well-known principles regarding reliance explained in Gould v Vaggelas (1984) 157 CLR 215; [1984] HCA 68 at 236:

1. Notwithstanding that a representation is both false and fraudulent, if the representee does not rely upon it he has no case.

2. If a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation.

3. The inference may be rebutted, for example, by showing that the representee, before he entered into the contract, either was possessed of actual knowledge of the true facts and knew them to be true or alternatively made it plain that whether he knew the true facts or not he did not rely on the representation.

4. The representation need not be the sole inducement. It is sufficient so long as it plays some part even if only a minor part in contributing to the formation of the contract.

[50] What must be established is a causal connection between the alleged representations and the loss for which they seek compensation: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55 at 525-526; Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 at 469-470 [17] (Gleeson CJ), 480 [61] (Gaudron J), 488-489 [94] (McHugh J with whom Gummow J agreed) and 508-509 [159]-[160] (Hayne J with whom Gummow J agreed). In a claim for misleading or deceptive conduct constituted by representations, acts done by the person to whom the representation was made in reliance upon the misrepresentation will "constitute a sufficient connexion to satisfy the concept of causation": Wardley at 525.

[51] A material representation, in the sense of a representation that is "objectively likely" to act as an inducement to act in a particular way, will be a cause of the relevant loss or damage if it contributed to the loss or damage in some way, even if "other factors or conditions ... played an even more significant role in producing the loss or damage": Henville at 493 [106] (McHugh J, with whom Gummow J agreed), 509 [163] (Hayne J, with whom Gummow J also agreed).

[52] In an appropriate case, reliance may be inferred: Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 357; (1999) 43 IPR 545 at [11] per Wilcox J, and at [45] per Kiefel J.

[53] The principles stated at 236 of Gould v Vaggelas do not provide an exhaustive rule but may be used as a guide. has been followed on numerous occasions in the High Court as an appropriate guide to form a conclusion about causation under s 18 of the ACL and its predecessor, s 52 of the Trade Practices Act. In ; Bell, Keane and Nettle JJ stated:

[31] Potts v Miller and Gould v Vaggelas relevantly stand as authority that, where a claimant is induced by deceit to enter into a transaction, the claimant is entitled to recover by way of damages the actual damage "directly" flowing from the fraudulent inducement - including losses flowing from causes "inherent" in the transaction - but is not entitled to recover losses of which the cause is "independent", "extrinsic", "supervening" or "accidental" such that those losses cannot rationally be regarded as caused by the deceit."

1. In Lin at [81], the New South Wales Court of Appeal rejected ground of appeal 6(c) that the judge erred by failing to give adequate reasons in respect of his finding that the applicable representation was a cause of the third and fourth respondents' loss because he failed to refer to and consider the evidence that they had read and understood the applicable documents:

"[81] His Honour addressed all of the factual issues raised for him to determine. His Honour was best placed to decide whether to accept the different versions of the conversations deposed to by Dr Wang and Mr Lin. His Honour accepted Dr Wang was an "honest" witness with a "generally reliable" recollection and preferred his evidence to that of Mr Lin: at [52]. No more elaborate reasons were required for preferring Dr Wang's evidence to that of Mr Lin. Having found what was said, his Honour's explanation of reliance was sufficiently reasoned, based as it was on the unchallenged evidence of Dr Wang on his state of mind (see [77] above) and the mode of reasoning described in Gould v Vaggelas. No more elaborate reasons were required. Ground 6(c) should be rejected."

1. The Tribunal in the 20 November 2024 reasons at [73] addressed and made a finding on the issue of reliance by Mrs Tonks on the impugned representation. There was no constructive failure by the Tribunal to exercise its jurisdiction. As there was no challenge to the evidence of reliance by Mrs Tonks, the Tribunal was not required to address the reliability of the evidence of Mrs Tonks. Consistent with the finding in Lin at [81], based as it was on the unchallenged evidence of Mrs Tonks and the mode of reasoning described in Gould v Vaggelas (1984) 157 CLR 215; [1984] HCA 68 at 236 (which is set out in Lin at [49]), no more elaborate reasons were required the Tribunal.
2. It follows that we reject the fourth limb of the first ground of appeal.

If so, whether the constructive failure to exercise jurisdiction was material to the outcome

1. As we have decided that the Tribunal did not constructively fail to exercise its jurisdiction by failing to consider whether there was no or unreliable evidence that Mrs Tonks read or relied on the content of Steelbond's website concerning licensing status or the statement 'we do not subcontract' or that induced her to enter into the building contract, these two questions do not arise for determination.

The fifth limb of the first ground of appeal (puffery)

1. Mr Culleton in the Steelbond/Culleton defence at [26] raised the defence that the impugned representation if found to be made were not actionable because it was "mere puffery".
2. The fifth limb of the first ground of appeal raises the following questions:

(1) whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider whether the impugned representation was "mere puffery";

(2) if so, whether the constructive failure to exercise jurisdiction was material to the outcome;

(3) if so, whether any relief should be granted.

1. It is convenient to consider the first two questions together.

Whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider whether the impugned representation was "mere puffery"

If so, whether the constructive failure to exercise jurisdiction was material to the outcome

1. The character of the impugned representation as "mere puffery" was clearly raised in the Steelbond/Culleton defence at [26].
2. It is unnecessary to set out the submissions of the parties.
3. We accept that the Tribunal made an error of law in constructively failing to exercise its jurisdiction by failing to consider whether the impugned representation was "mere puffery". The Tribunal in the 20 November 2024 reasons did not consider the character of the impugned representation.
4. We also accept that the constructive failure to exercise jurisdiction was material to the outcome. If the Tribunal had decided that the impugned representation was "mere puffery", then Mr Culleton could not have contravened s 18 of the ACL by making it.

1. We have decided that we should determine the character of the impugned representation.

1. Mr Culleton and Steelbond in the Culleton/Steelbond appeal submissions have referred to statements of Steelbond's website and various authorities dealing with puffery.

1. Mr and Mrs Tonks in their reply to the amended notice of appeal did not address this question.

1. In Australian Competition and Consumer Commission v We Buy Houses Pty Ltd [2017] FCA 915 (We Buy Houses) at [64]-[68], Gleeson J set out the principles with the respect to a defence of puffery to a claim for contravention of s 18 of the ACL:

"[64] Whether a representation constitutes puffery or marketing exaggeration and, consequently, is not actionable turns on the particular facts considered in light of the ordinary incidents and character of commercial behaviour: Specsavers at [49], citing General Newspapers Pty Ltd v Telstra Corporation [1993] FCA 473; (1993) 45 FCR 164 at 178 and Australian Competition and Consumer Commission v Henry Kaye and National Investment Institute Pty Ltd [2004] FCA 1363 (Kaye) at [122]. A claim will not be regarded as puffery if there is a definitive statement as to a characteristic or consequence of the claim: Specsavers at [49], citing Jainran Pty Ltd v Boyana [2008] NSWSC 468 (Jainran) at [117], Gillette Australia Pty Ltd v Energizer Australia Pty Ltd [2005] FCA 1647 at [25] and Procter & Gamble Australia Pty Ltd v Energizer Australia Pty Ltd [2011] FCA 1347 at [168]-[172].

[65] By corollary, a characteristic often attributed to puffery is that it is "incapable of being proved to be correct or incorrect": Pappas v Soulac Pty Ltd [1983] FCA 3; at 238. In that case, a representation that a shopping centre was a good investment was found to be in the nature of puffery.

I think a robust approach is called for when determining whether television commercials of this kind are false, misleading or deceptive. The public is accustomed to the puffing of products in advertising. Although the class of persons likely to see this commercial is wide, it is inappropriate to make distinctions that are too fine and precise.""

1. Having regard to the principles in We Buy Houses at [64]-[68], we do not accept the submissions of Mr Culleton and Steelbond that the impugned representation was puffery or marketing exaggeration. The impugned representation was not incapable of being proved to be correct or incorrect. The regulation of unlicensed contracting under the HB Act is a contextual factor indicating that the issue of licensed contracting was not a matter of marketing. Unlicensed contracting to carrying out residential building work was prohibited by s 4(1) of the HB Act. Further, the making of representations by an officer of a corporation which is not the holder of a contractor licence authorising its holder to contract to do that work was prohibited by s 5(1) of the HB Act. Similarly, the qualifications and experience of tradesmen were a factor likely to influence the decision of a homeowner whether to enter into a contract for residential building work rather than seen as a matter of marketing. In these circumstances the making of the impugned representation was actionable under s 18 of the ACL.
2. It follows that we reject the fifth limb of the first ground of appeal.

The third limb of the first ground of appeal and the second ground of appeal (personal liability of Mr Culleton)

1. Mr Culleton in the Steelbond/Culleton defence at [28] raised the defence that he was not a party to the building contract.
2. Mr Culleton in the Steelbond/Culleton submissions relevantly made the following submissions:

"...

16. Mr Culleton should not be personally found liable as director under the ACL. The Applicants have sought to overcome privity of contract limitations under the HB Act to impugn Mr Culleton personally under the ACL and have breached the rule in Saloman v A Saloman & Co Ltd [1897] AC 22. Directors and officers are generally not personally liable for the companies obligations, provided they act within the scope of their authority. There is no evidence of fraud or knowingly improper conduct.

..."

1. The third limb of the first ground of appeal raises the following questions:

(1) whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider whether s 18 of the ACL should not be used to improperly "pierce the corporate veil" to hold Mr Culleton personally liable where there is no privity of contract, contrary to the principle in Salomon;

(2) if so, whether the constructive failure to exercise jurisdiction was material to the outcome;

(3) if so, whether any relief should be granted.

1. It is convenient to consider the first two questions together. If it is necessary to consider the third question, it will be convenient to consider that question together with the second ground of appeal.

Whether the Tribunal constructively failed to exercise its jurisdiction by failing to consider whether s 18 of the ACL should not be used to improperly "pierce the corporate veil" to hold Mr Culleton personally liable where there is no privity of contract, contrary to the principle in Salomon

If so, whether the constructive failure to exercise jurisdiction was material to the outcome

1. The issue of whether Mr Culleton could be personally liable for a contravention of s 18 of the ACL where Mr and Mrs Tonks and Steelbond were the parties to the building contract was clearly raised in the Steelbond/Culleton defence at [26] and in the Steelbond/Culleton submissions at [16].
2. It is unnecessary to set out the submissions of the parties.
3. We accept that the Tribunal made an error of law in constructively failing to exercise its jurisdiction by failing to consider whether Mr Culleton could be personally liable for a contravention of s 18 of the ACL where Mr and Mrs Tonks and Steelbond were the parties to the building contract. The Tribunal in the 20 November 2024 reasons did not consider this issue.
4. We also accept that the constructive failure to exercise jurisdiction was material to the outcome. If the Tribunal had decided that s 18 of the ACL should not be used to improperly pierce the corporate veil to hold Mr Culleton personally liable where there is no privity of contract, then Mr Culleton could not have contravened s 18 of the ACL by making the impugned representation.

Whether the Tribunal misconstrued s 18 of the ACL and applied a wrong principle of law in finding that Mr Culleton was jointly and severally liable with Steelbond for the loss suffered by Mr and Mrs Tonks by reason of its contravention

1. We have decided that we should determine the proper construction of s 18 of the ACL. In so doing we will also determine whether the Tribunal applied a wrong principle of law in finding that Mr Culleton was jointly and severally liable with Steelbond for the loss suffered by Mr and Mrs Tonks by reason of its contravention.
2. The Tribunal in the 20 November 2024 reasons at [73] did not specify the source of its power to make the money order against Mr Culleton. As the claim was based on s 18 of the ACL, this source was necessarily s 236 of the ACL. Further, the Tribunal in the 20 November 2024 reasons at [73] did not specify whether for the purposes of s 236 of the ACL, Mr Culleton was a person who engaged in the conduct which contravened s 18 or a person "involved in the contravention" within the meaning of s 236 when read with the definition of "involved" in s 2(1). In view of the heading "Did Mr Culleton engage in misleading or deceptive conduct? ..." in the 20 November 2024 reasons we understand that the Tribunal found that Mr Culleton was a person who engaged in the conduct which contravened s 18.

1. Mr Culleton in the Culleton/Steelbond appeal submissions made the following submissions:

(1) he relied on Salomon for the principle that a company is a separate legal entity from its shareholders and directors, and once incorporated a company has its own distinct rights and liabilities distinct from those of its members. Further, s 18 of the ACL should not be used to improperly "pierce the corporate veil" to hold Mr Culleton personally liable where there is no privity of contract, contrary to the principle in Salomon;

(2) he submitted that Care A2 Plus Ply Ltd v Pichardo [2024] NSWCA 35 (Care A2) should be distinguished on the basis that a very high level of misconduct or breach should be found before a director is personally liable;

(3) he submitted that Mills v Walsh [2022] NSWCA 255 (Mills) should be distinguished on the basis that the company was insolvent.

1. Mr and Mrs Tonks in the Tonks supplementary appeal submissions made the following submissions:

(1) Mills supports the separate nature of the misleading and deceptive conduct claim against Mr Culleton and that the Tribunal was correct in its application of the ACL. The Tonks amended claim against Mr Culleton is not distinguishable from Mills and should be treated in the same manner, as the Tribunal has already done;

(2) Care A2 does not establish any proposition that a misleading and deceptive conduct claim against an individual company director can only exist in extreme circumstances such as fraud.

1. It has recently been observed that the expression "piercing or lifting the corporate veil" is a familiar phrase, but is generally an inapt expression: Robinson v BMF Pty Ltd (in liq) (No 2) [2022] FCA 1191 at [210] (Mortimer J).
2. The High Court of Australia has indicated that there can be situations where an act is both the act of a corporation and the act of an individual: CH Real Estate Pty Ltd v Jainran Pty Ltd; Boyana Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37; (2010) 14 BPR 27,361 at [302] (Young JA) citing Hamilton v Whitehead (1988) 166 CLR 121; [1988] HCA 65 (Hamilton) at 128; and Houghton v Arms (2006) 225 CLR 553; [2006] HCA 59 (Houghton) at [46].
3. In Hamilton, the respondent was managing director of a company which was charged with offences against s 169 of the Companies (Western Australia) Code. The respondent was charged as being knowingly concerned in the commission of those offences. The charges against the respondent were brought under a section imposing accessorial liability. A submission by the respondent that a person who subsumes his personality in a company cannot be guilty both as a principal offender in his corporate persona and as an accessory was rejected. The respondent was "the mind of the company" so that it was liable as principal; but that did not gainsay his liability as an accessory under the particular section providing for accessorial liability. The High Court at 128 (Mason CJ, Wilson and Toohey JJ) observed:

"In Reg. v. Goodall Bray C.J. discussed what his Honour described as: "some sort of metaphysical bifurcation or duplication of one act by one man so that it is in law both the act of the company and the separate act of himself as an individual" and expressed his conclusion as follows 26: "my view is that the logical consequence of Salomon's Case ... is that the company, being a legal entity apart from its members, is also a legal person apart from the legal personality of the individual controller of the company, and that he in his personal capacity can aid and abet what the company speaking through his mouth or acting through his hand may have done." We agree with this view." (citation omitted)

1. In Houghton, the background was that Mr Arms applied to the Federal Court of Australia for declarations and damages under the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1999 (Vic) in respect of misleading and deceptive conduct by WSA Online Ltd (WSA), James Houghton and James Student. Ryan J gave judgment against WSA but dismissed the claims against Mr Houghton and Mr Student on the ground that neither had been engaged in trade or commerce on his own account as distinct from being an employee of WSA Online Ltd. A Full Court (Nicholson, Mansfield and Bennett JJ) allowed an appeal by Mr Arms against the dismissal of his claims under the Fair Trading Act against Mr Houghton and Mr Student and entered judgment against all three respondents. The High Court (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) dismissed the appeal and at [46] observed:

"[46] So far as the reasoning in Hamilton has any bearing upon the construction of s 9 of the FT Act, it assists the respondent not the appellants. Their Honours stressed, with reference to remarks of Bray CJ in R v Goodall, that recognition of the distinct legal identity of a corporation had the consequence that in law the act of an individual might be both a corporate act and the separate act of the actor as an individual." (citations omitted)

1. Having regard to the reasoning in Hamilton at 128 and Houghton at [46], and contrary to the submission of Mr Culleton, the principle in Salomon supports the position that the conduct of a director can be considered separately from the conduct of the company.
2. In Mills, the appellant Mr Mills and his then estranged wife the second respondent Ms Zhang wished to renovate their residential property, of which Ms Zhang was the registered proprietor. They were introduced to the first respondent Mr Walsh, the sole director and shareholder of JSW Property Projects Pty Ltd (JSW). Neither Mr Walsh nor JSW held a licence under the HB Act, but Ms Zhang and Mr Mills were unaware of this. JSW commenced works on the property, and Mr Mills' company paid JSW a total of $500,000 in progress payments. A dispute arose when JSW requested more funds to continue the project and Mr Mills declined to pay, which culminated in JSW ceasing works and leaving the site with the renovations far from complete. Ms Zhang later engaged a different builder to demolish the building and rebuild to a different design. Mr Mills and Ms Zhang commenced proceedings, claiming damages for misleading and deceptive conduct under the ACL and breach of statutory warranties under the HB Act. JSW was deregistered prior to the hearing and so the claim proceeded against Mr Walsh only. The primary judge found that the construction contract was with JSW alone and not Mr Walsh personally, and so he could have no liability in respect of it. His Honour also held that while Mr Walsh had engaged in misleading and deceptive conduct by representing (implicitly, or by silence) that JSW would be licensed when works commenced, without reasonable grounds for making that representation, Mr Mills did not rely on the misrepresentation, and although Ms Zhang did, she suffered no loss because only Mr Mills incurred any expenditure. Finally, the primary judge held that Mr Mills and Ms Zhang failed to discharge the onus of proving they had suffered loss, in the sense that they failed to prove that the value of what they had received under the contract was less than what they had paid. On appeal by Mr Mills (with Ms Zhang discontinuing her appeal and being joined as a respondent at the commencement of the hearing of the appeal), the New South Wales Court of Appeal (Brereton JA with Bell CJ agreeing, White JA dissenting) dismissed the appeal.

"[106] More than one individual may engage in the same or related misleading or deceptive conduct, or, alternatively, a person may become knowingly involved in such conduct. ...

[107] The status of an employee or officer does not necessarily immunise him or her from liability for contravening conduct engaged in in that capacity: Anchorage Capital Master Offshore Ltd v Sparkes (2023) 111 NSWLR 304; [2023] NSWCA 88 at [362] (Anchorage); Australian Securities and Investments Commission v Narain (2008) 169 FCR 211; [2008] FCAFC 120 at [94]. The question is whether the role of the individual was more than merely ministerial."

1. There is nothing in Care A2 which indicates that direct liability of an officer of a company for misleading and deceptive conduct is limited to situations where that a very high level of misconduct or breach should be found before the officer is personally liable.
2. We are not satisfied that the Tribunal applied a wrong principle of law in finding that Mr Culleton was jointly and severally liable with Steelbond for the loss suffered by Mr and Mrs Tonks by reason of his contravention s 18 of the ACL.
3. It follows that we reject the third limb of the first ground of appeal and the second ground of appeal.

1. Mr Culleton and Steelbond in the amended notice of appeal have sought leave to appeal on the following grounds:

"The appellants have suffered a substantial miscarriage of justice and leave to appeal on the merits should be granted because:

- the decision was not fair and equitable: as shown the Tribunal demonstrated significant errors of law in its decision and hearing, including failure to consider central submissions of the appellant, failure to take into account relevant considerations and denial of procedural fairness during the case management process in denying the opportunity to join a third party and lodge a cross-claim against a third party potentially liable.

- the decision was against the weight of evidence: there were inconsistencies in the evidence of Mrs Tonks and contemporanous evidence, including about -pre-existing leakage and mould damage, specifically the report AML Enviro Services Hygienist Report dated 13 April 2023.

- significant new evidence is now available that was not reasonably available at the time of hearing: email correspondence between the Appellant and Respondent dated 22 July 2022 detailing her awareness of subcontracting arrangements under the contract."

1. As Mr Culleton and Steelbond are seeking leave to appeal on the three grounds in cl 12(1) of Sch 4 of the NCAT Act we have considered each of them in turn.

Whether Mr Culleton and Steelbond may have suffered a substantial miscarriage of justice because the 20 November 2024 decision was not fair and equitable

1. As Mr Culleton and Steelbond rely upon the grounds of appeal for their contention that the 20 November 2024 decision was not fair and equitable, we are not satisfied that they may have suffered a substantial miscarriage of justice because the 20 November 2024 decision was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act for the same reasons that we have rejected the first, second and third grounds of appeal.

Whether Mr Culleton and Steelbond may have suffered a substantial miscarriage of justice because the 20 November 2024 decision was against the weight of evidence

1. Mr Culleton and Steelbond in the amended notice of appeal have made the following contention in respect of this issue:

"The Tribunal should have preferred the evidence of Mr William Culleton. It should have identified inconsistencies with the evidence of Mrs Tonks and contemporanous evidence including about pre-existing leakage and the extent of mould damage not mitigated."

1. Neither Mr Culleton and Steelbond in the Culleton/Steelbond appeal submissions nor their solicitor in his oral submissions addressed this issue.
2. To establish an error for which leave to appeal should be granted, we would have expected identification of each finding in the 20 November 2024 decision that was challenged, an articulation of the legal principles that were relevant to the finding and/or an analysis of the evidence that was relevant to the finding, the reasons why the finding was erroneous, and how any such erroneous finding was material to the making of the 20 November 2024 decision.
3. In these circumstances, we are not satisfied that Mr Culleton and Steelbond may have suffered a substantial miscarriage of justice because the 20 November 2024 decision was against the weight of evidence within cl 12(1)(b) of Sch 4 of the NCAT Act.

Whether Mr Culleton and Steelbond may have suffered a substantial miscarriage of justice because significant new evidence has arisen

1. Mr Culleton and Steelbond in the amended notice of appeal have made the following contentions in respect of this issue:

"The appellant did not know the (Email correspondence between the Appellant and Respondent dated 22 July 2022 which shows the Respondent's awareness of arrangements under the contract, including subcontracting arrangements) existed and did not disclose it to their legal representative until preparation of the appeal, where Mrs Tonks credibility will be raised as relevant to whether the tribunal's findings were logical, rational and legally reasonable."

1. Mr Culleton and Steelbond in the appeal book sought to rely on the following documents as fresh evidence:

(1) emails between Mr Culleton and Ms Tonks between 24 June 2022 and 16 August 2022 (the Mr Culleton/Ms Tonks emails);

(2) ASIC Certificate of Company Registration - Steelbond Australia Pty Ltd dated 1 February 2018 (the Steelbond Certificate of Registration);

(3) Constitution of Steelbond Australia Pty Ltd dated 1 February 2018 (the Steelbond Constitution);

(4) ASIC Certificate of Company Registration - Global Business Tools Pty Ltd (GBT) dated 21 August 2024 (the GBT Certificate of Registration);

(5) Commonwealth Bank of Australia Statements - Steelbond Australia Pty Ltd t/a Town & Country Australia - a/c ending 5785 between 31 March 2024 and 31 December 2024 (the Steelbond CBA Statements);

(6) Printouts from the GBT website - www.globalbistools.com on 14 February 2025 (the GBT website documents).

1. At the hearing, Mr Culleton and Steelbond advised that they no longer sought to rely on the Steelbond Certificate of Registration and the Steelbond Constitution as fresh evidence.
2. In circumstances where Mr Culleton and Steelbond have not challenged the finding that the building contract was between Steelbond as the builder and Mr and Mrs Tonks as the owners, the documents sought to be relied as fresh evidence within cl 12(1)(c) of Sch 4 of the NCAT Act are not relevant to any issue in the appeal.

1. As Mr Culleton and Steelbond have not established any material error made by the Tribunal in answering a question of law, and where it did make such an error, we have found that the 20 November 2024 decision was not erroneous, we have decided to make an order pursuant to s 81(1)(a) of the NCAT Act dismissing the appeal.
2. As Mr Culleton and Steelbond have not established that they may have suffered a substantial miscarriage of justice within any of cl 12(1)(a), (b) and (c) of Sch 4, we have decided to make an order pursuant to s 80(2)(b) of the NCAT Act refusing leave to appeal.

1. The solicitor of Mr Culleton and Steelbond at the hearing conceded that, if we dismissed the appeal and refused leave to appeal, they should pay the costs of Mr and Mrs Tonks of the appeal.
2. As we are satisfied that this concession was properly made, we have decided to make an order that Mr Culleton and Steelbond should pay the costs of Mr and Mrs Tonks of the appeal on the ordinary basis as agreed or assessed.

(1) The appeal is dismissed.

(2) Leave to appeal is refused.

(3) The appellants are to pay the costs of the first and second respondents of the appeal on the ordinary basis as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.