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[2026] NSWSC 174
General information, not legal advice.
Supreme Court of NSW
2026-03-10
Harrison AsJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Culleton v Tonks [2026] NSWSC 174
Hearing dates: 8 October 2025
Date of orders: 10 March 2026
Decision date: 10 March 2026
Jurisdiction: Common Law
Before: Harrison AsJ
Decision: (1) The Amended Summons dated 29 September 2025 is dismissed.
(2) The plaintiffs are to pay the defendants’ costs.
Catchwords: ADMINISTRATIVE LAW — Hearing rule
ADMINISTRATIVE LAW — Reviewability — Where internal appeal has been heard of primary NCAT decision under review
ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Unreasonableness
CONSUMER LAW — Misleading or deceptive conduct — Liability of company director who made representation — Defence of ‘mere puffery’
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 3(d), 34(1), 32, 44, 80(2)(a)
Competition and Consumer Act 2010 (Cth) Sch 2 – Australian Consumer Law, ss 2(1), 18, 236
Corporations Act 2001 (Cth), ss 119, 1041H
Fair Trading Act 1987 (NSW) ss 28, 79N
Home Building Act 1989 (NSW), ss 4(1), 5(1), 18BA
Supreme Court Act 1970 (NSW), ss 69, 75
Uniform Civil Procedure Rules 2025 (NSW), r 59.5
Cases Cited: All Options Pty Ltd v Flightdeck Geelong Pty Ltd [2019] FCA 588
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Competition and Consumer Commission v We Buy Houses Pty Ltd [2017] FCA 915
Australian Securities and Investments Commission v GetSwift Limited [2021] FCA 1384
Australian Securities and Investments Commission v Narain (2008) 169 FCR 211; [2008] FCAFC 120
Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12
Care A2 Plus Ply Ltd v Pichardo [2024] NSWCA 35
Carlill v Carbolic Smoke Ball [1893] 1 QB 256
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Craig v South Australia (1995) 184 CLR 163
Culleton v Tonks [2025] NSWCATAP 129
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.
Houghton v Arms (2006) 225 CLR 553; [2006] HCA 59
Ice Box Liquor Pty Ltd v Independent Liquor & Gaming Authority [2022] NSWCATAD 358
Janbar Pty Ltd v Arborcrest Pty Ltd [2020] FCA 1519
Jones v Lipman [1962] 1 WLR 832
Khamiss v Director of Public Prosecutions (No 2) [2025] NSWCA 193
Kioa v West (1985) 159 CLR 550
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531
Masterson v Commissioner of Police [2018] NSWSC 892
Milicevic v Ferrari East Pty Ltd (No 3) [2023] NSWSC 1116
Mills v Walsh [2022] NSWCA 255
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Plaintiff S20/2002 v Minister for Immigration (2003) 198 ALR 59; [2003] HCA 30
Prest v Petrodel Resources Ltd [2013] UKSC 34
R v Goodall (1975) 11 SASR 94
Re Ku-ring-gai Co-op Building Society (No 12) Ltd (1978) 22 ALR 621
Robinson v BMF Pty Ltd (in liq) (No 2) [2022] FCA 1191
Salomon v Salomon & Co Ltd [1897] AC 22
Stuart Alexander and Co (Interstate) Pty Ltd v Blenders Pty Ltd (1981) 37 ALR 161
STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 2) [2010] FCA 1240
The Owners – Strata Plan No 87265 v Saaib [2021] NSWSC 150
Tonks v Steelbond Australia Pty Ltd & Ors [2024] NSWCATCD)
Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9
VTB Capital plc v Nutritek International Corp [2012] 2 Lloyd's Rep 313
Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Wishart v Fraser (1941) 64 CLR 470
Category: Principal judgment
Parties: William Joseph Culleton (First Plaintiff)
Steelbond Australia Pty Ltd (Second Plaintiff)
Debra Tonks (First Defendant)
Craig Tonks (Second Defendant)
NSW Civil and Administrative Tribunal (Third Defendant)
Representation: Counsel:
H Wilesmith (First and Second Defendants)
Solicitor:
Baker Love Lawyers Pty Ltd (First and Second Defendant)
Other:
Plaintiff (Self Represented)
S Mulipola (McKenzie Friend for First and Second Plaintiffs)
File Number(s): 2025/00265125
Publication restriction: Nil
The judgment involves a judicial review of a decision from the NSW Civil and Administrative Tribunal (NCAT) Appeal Panel (the Appeal Panel) whose decision was published on 10 June 2025: Culleton v Tonks [2025] NSWCATAP 129 (per G Black AM SC, Principal Member, and J Ledda, Senior Member) (the Appeal Panel Decision).
The Appeal Panel Decision concerned a decision by senior member K Ross (Senior Member) dated 20 November 2024: Tonks v Steelbond Australia Pty Ltd & Ors [2024] NSWCATCD (the Tribunal Decision) and procedural orders by tribunal member G Ellis (Tribunal Member) dated on 22 May 2024 (Tribunal Interlocutory Decisions).
There are two named plaintiffs, both of whom were the appellants in the Appeal Panel Proceedings. The first plaintiff is William Joseph Culleton. The second plaintiff is Steelbond Australia Pty Ltd (Steelbond). The first plaintiff is the director and alter ego of the second plaintiff. For ease of convenience and understanding, I shall refer to the first and second plaintiffs as Culleton, except where otherwise necessary.
The first defendant is Mrs Debra Tonks and the second defendant is Mr Craig Tonks (the Tonks). The Tonks are husband and wife. They are represented by Mr H Wilesmith of counsel. The third defendant is NCAT. The third defendant has filed a submitting appearance.
At the hearing before me on 8 October 2025, counsel for the Tonks did not object to Mr S Mulipola representing Culleton as a ‘McKenzie friend’. Culleton confirmed that he wanted Mr Mulipola to represent him at the hearing. I reluctantly granted leave for him to appear.
At the hearing before the Appeal Panel, it recorded that Mr Mulipola, a solicitor, was representing Culleton and Steelbond. In this Court, Mr Mulipola explained that while he has had extensive experience practising in the field of administrative law, he now has a new job which does not require him to hold a practising certificate.
This judicial review arises out of defective roofing work carried out by Culleton in mid-2022. On 9 May 2022, the Tonks entered into a contract with Steelbond, Black Diamond Site Services Pty Ltd (Black Diamond) and Mr Ronald Lawrence (Mr Lawrence), the builder who performed the roofing works on their home. The works included the removal and replacement of asbestos roof. From June to August 2022, the roofing work was performed.
On 21 December 2023, the Tonks commenced proceedings in the Consumer and Commercial Division against Steelbond and Mr Lawrence claiming $80,000 plus costs (2023/463720) (the Tonks application).
The Tonks application claimed that Culleton, Steelbond and Mr Lawrence installed the roof without due care and skill and that the works were defective and sought remedies for breach of the statutory warranties in the Home Building Act 1989 (NSW) relation to roofing works performed by Steelbond at XX XX Avenue, Charlestown NSW 2290 (the Property).
Each ground of judicial review is not properly articulated. In this respect, I make the following observations:
It is trite law that a denial of procedural fairness, or a breach of the rules of natural justice is capable of constituting jurisdictional error, whether arising under statute or at common law: Kioa v West (1985) 159 CLR 550 (Kioa). The grounds of judicial review raise denial of procedural fairness interspersed with many other arguments. I do not propose to deal with Culleton’s general submissions in relation to denial of procedural fairness unless they are properly articulated.
The grounds of judicial review in relation to the Appeal Panel Decision are also interspersed with the Tribunal Interlocutory Decisions and the Tribunal Decision. For reasons I shall set out shortly, Culleton’s application for judicial review in relation to the Tribunal Interlocutory Decisions and the Tribunal Decision are not competent, and pursuant to s 34(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) I refuse to conduct a judicial review of the Tribunal Interlocutory Decisions and the Tribunal Decision.
On 21 May 2024, the Tonks made an additional claim in NCAT to add Culleton in his personal capacity as a defendant. The Tonks also amended their pleadings to include a claim against Culleton personally for engaging in misleading and deceptive conduct under s 18 of the Competition and Consumer Act 2010 (Cth) Sch 2 – Australian Consumer Law (ACL)).
On 21 May 2024, Culleton applied to join a third party under s 44 of the NCAT Act, Black Diamond. Black Diamond was involved in the contract in dispute and performed buildings works under the contract, including roofing and asbestos removal works. Steelbond says that it relied on case law establishing that they were a proper and necessary party and that commercial competitors can be joined under s 44 of the NCAT Act: Ice Box Liquor Pty Ltd v Independent Liquor & Gaming Authority [2022] NSWCATAD 358. The Tonks opposed the application.
On 22 May 2024, Tribunal Member, G Ellis, made procedural orders for the hearing of the Tonks application including: order 3 granting leave to the Tonks to amend the 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.
On 16 August 2024, the Senior Member presided over the hearing in NCAT. On 20 November 2024, the following orders were made:
The application against Ronald Lawrence is dismissed.
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.
On 18 December 2024, Culleton as the appellant, with the Tonks as the respondents, lodged a Notice of Appeal (NCAT Proceeding 2025/00001155) and applied for a stay.
On 2 January 2025, Steelbond and Culleton were ordered to pay the Tonks’ costs of the Tribunal proceedings.
On 3 January 2025, the Appeal Panel granted Steelbond and Culleton an interim stay on judgment until 24 January 2025 (or finalisation of the Appeal proceedings).
On 5 May 2025, an Appeal Panel, comprised G Blake AM SC, Principal Member, and J Ledda, Senior Member (the Appeal Panel) heard the appeal from the Tribunal Members’ Decision and Senior Member’s Decision. At the outset of the appeal, Culleton applied for an adjournment on the basis that a medical condition he suffered prevented him from attending the hearing. The Appeal Panel arranged for the hearing to be accessed virtually by Culleton and gave his solicitor an opportunity to contact him to obtain instructions (Appeal Panel Decision at [45]).
On 10 June 2025, the Appeal Panel dismissed the appeal, refused Culleton leave to appeal and awarded the Tonks costs (Culleton v Tonks [2025] NSWCATAP 129). At [53] of the Appeal Panel Decision, the Appeal Panel was critical of the drafting of the Amended Notice of Appeal stating that it was an unsatisfactory document as it does not clearly articulate the questions of law raised and includes material in the form of submissions. While the Appeal Panel observed that it took a benevolent approach to appeal grounds prepared by unrepresented appellants, that approach did not extend to Culleton’s legal practitioner, S Mulipola. Mr Mulipola appeared as solicitor for Steelbond and Culleton.
The Summons and the Amended Summons in this Court were also drafted in a similar and unsatisfactory manner. In the Summons filed 2 July 2025, Mr Mulipola described himself as “Steven Mulipola, solicitor”. In the Amended Summons filed 29 September 2025, he described himself as a “legal representative”.
The Appeal Panel identified at the questions of law at [55] of the Appeal Panel Decision:
“[55] Having considered the amended notice of appeal, we understand 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 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 Culleton was jointly and severally liable with Steelbond for the loss suffered by Mr and Mrs Tonks by reason of its contravention.”
On 2 July 2025, Culleton filed a Summons seeking, among other matters, judicial review of the Appeal Panel Decision.
On 29 September 2025, Culleton filed an Amended Summons seeking judicial review of the Appeal Panel Decision. The Amended Summons is 17 pages in length and comprises predominantly of submissions. The Summons and the Amended Summons were prepared by Mr Mulipola. In the Summons, Mr Mulipola describes himself as a solicitor, and the Amended Summons is signed by Culleton as an unrepresented plaintiff.
The Amended Summons seeks the following orders:
An order in the nature of certiorari quashing the decision of the Civil and Administrative Tribunal of New South Wales – Appeal Panel dated 10 June 2025 dismissing an appeal from Order 2 of decision of the Tribunal dated 20 November 2024 and quashing the Tribunal’s decision.
A declaration or an order under ss 69(3) and/or 75 of the Supreme Court Act 1970 (NSW) that the Culleton was not liable as an individual company director to pay the sum of $61,993.53 to the Tonks under ss 18 and 236 of the ACL; Fair Trading Act 1987 (NSW) ss 28, 79N.
A declaration or an order under ss 69(3) and/or 75 of the Supreme Court Act that the first and Second Plaintiff’s defence of mere puffery to s 18 of the ACL is upheld;
An order under ss 69(3) of the Supreme Court Act that the Tonks’ claim under s 18 of the ACL be dismissed;
Alternatively, an order in the nature of mandamus remitting the matter to the Tribunal to re-hear and determine according to law.
The grounds of judicial review in the Amended Summons are difficult to ascertain. They are at times confusing, disorganised, repetitive, and are largely mixed with submissions.
As best I can summarise, in the Amended Summons, the grounds of judicial review are:
Ground 1(a) – legal unreasonableness in the Senior Member’s decision to find Mr Culleton personally liable.
Ground 1(b) – legal unreasonableness in the Tribunal Interlocutory Decisions to add Mr Culleton as a respondent.
Ground 2 – denial of procedural fairness by the Senior Member in the Tribunal Interlocutory Decisions to refuse Culleton and Steelbond’s application to add Black Diamond as a respondent.
Ground 2A – failure to consider Culleton’s submission as to Mrs Tonks’ credibility and irrational/illogical findings. In this ground, Culleton referred to both the Tribunal Decision and Appeal Panel Decision.
Ground 3 – misconstruction of s 18 of the ACL on a director’s personal liability. In this ground, Culleton again referred to both the Tribunal Decision and the Appeal Panel Decision.
Ground 4 – In this ground, Culleton again referred to both the Tribunal Decision and the Appeal Panel Decision. The rejection to the mere puffery defence in relation to s 18 of the ACL was based upon irrationality/illogicality grounds and lack of causation.
In the Response to the Summons dated 4 August 2025, the Tonks, in summary, made overall submissions that there was no basis for the orders sought to be made, in circumstances where:
the grounds in the [Amended] Summons do not support a finding of jurisdictional error;
there is no error of law apparent on the face of the Appeal Panel Decision;
the orders sought are beyond power and unavailable on in judicial review proceedings: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 (Kirk) at [110]; and
to the extent that the Amended Summons seeks merits review of the Appeal Panel Decision, such merits review is unavailable in judicial review proceedings.
Culleton served the Summons on the Tonks out of time. I agree that Culleton did not provide reasons to explain the delay nor did he seek an extension of time to file the Summons from this Court.
In the absence of any explanation as to why the Summons was served out of time, I could exercise my discretion to dismiss the application for judicial review. However, I consider that the better approach is to deal with the grounds of judicial review to determine whether the application for judicial review has any merit.
Culleton has sought judicial review in relation to the Tribunal Interlocutory Decisions, the Tribunal Decision and the Appeal Panel Decision. Culleton alleged legal unreasonableness and a denial of procedural fairness. While the reviewability of these decisions is relevant to all grounds of judicial review, grounds 1(b) and 2 relate specifically to the interlocutory decisions.
The Tonks submitted that Culleton is not entitled to seek review of the Tribunal Interlocutory Decisions, nor the Tribunal Decision by way of judicial review.
The Tribunal Interlocutory Decisions on 22 May 2024, the Tribunal Member gave reasons for his interlocutory decision as follows:
“1. The Tonks sought to add a director of the [Mr Culleton] as the third Respondent and indicated that there is no additional evidence to be relied upon in support of the claim against that director. As a result, the addition of that director can be accommodated without adversely impacting the date already allocated for the hearing.
- [Steelbond and Mr Lawrence] [sought] to have Black Diamond Site Services Pty Ltd added as a respondent. As the [Tonks] did not wish to make a claim against that company, any claim which [they] wish to make against that company will need to be made in a separate application. When the Tribunal tried to make directions that would enable that application to be herd together with this application, it became apparent that the proposed claim against that company cannot be ready in time to be heard at the same time as this application. Since this application was commenced on 21 December 2023 and it is only five months later that a claim against that company has been raised, that delay on the part of [Steelbond and Mr Lawrence] cannot be allowed to delay the finalisation of this application, which has already been allocated a hearing date.”
In respect of the timing of the application for leave and the decision:
The Tonks commenced the proceedings against Steelbond and Mr Lawrence, on 21 December 2023.
The application for leave to amend was made by the Tonks on 21 May 2024, in the prescribed manner (being the “Application for miscellaneous matters” form). Culleton had the opportunity to oppose the motion, and did so, by email in response to that application setting out submissions, and by oral submissions at the directions hearing.
Tribunal Member handed down his decision on a number of interlocutory matters on 22 May 2025.
The principle is that judicial review is not available in respect of orders of a lower court where those orders have been superseded by orders of a court higher in the judicial hierarchy: Wishart v Fraser (1941) 64 CLR 470 (Wishart). The reasons in Wishart were recently explored at length by the Court of Appeal in Khamiss v Director of Public Prosecutions (No 2) [2025] NSWCA 193 (Khamiss) at [42]-[61]. That reasoning applies with equal force to Tribunal appeals.
In Khamiss*,* the Court of Appeal held at [42]-[44], [61]:
“[42] The general principle is that judicial review is not available in respect of a verdict or orders of a lower court where that verdict or those orders have been superseded by orders of a court higher in the judicial hierarchy. That principle was accepted by the High Court in Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8 (Wishart). In that case, the appellant had been convicted of an offence under regulations made under the National Security Act 1939-1940 (Cth) by a Court of Petty Sessions exercising federal jurisdiction. The appellant appealed to the Court of Quarter Sessions, which affirmed the conviction. The appellant then brought an appeal from the decision of the Court of Petty Sessions to the High Court by means of an application for statutory prohibition. As Dixon J explained (at 480), at the time “Under sec 39(2)(b) of the Judiciary Act 1903-1940 an appeal lies as of right to this court from the decision of a court of a State exercising Federal jurisdiction, wherever an appeal lies, under State law, from its decision to the Supreme Court. An appeal by way of statutory prohibition lay from the [Court of Petty Sessions] to the Supreme Court, but no such appeal lay from the Court of Quarter Sessions”. Any appeal from a decision of the Court of Quarter Sessions required special leave under s 35 of the Judiciary Act.
[43] One of the questions raised by the appeal to the High Court was whether it could be maintained in circumstances where the Court of Quarter Sessions had confirmed the conviction. The High Court held that it could not. Two principal reasons were given. One was that the decision of the Court of Quarter Sessions superseded the decision of the Court of Petty Sessions. As Starke J explained in Wishart (at 478; see also Williams J at 491):
“If the Court of Quarter Sessions had reversed the decision of the stipendiary magistrate, its judgment would have held ‘the field to the exclusion’ of the conviction by the stipendiary magistrate. And when Quarter Sessions affirmed the conviction, its judgment was equally conclusive, for it operated as a judicial determination by a competent and higher authority that the conviction was right. … That judgment therefore holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary.”
[44] The second reason was that any decision on the issue by the High Court would give rise to an inconsistency. As Dixon J explained (at 482-3; see also Rich ACJ at 477):
“To that question there can, I think, be only one answer. It is not denied that the order of the Court of Quarter Sessions was within its jurisdiction and was validly made. While it stands it is a judicial declaration by a competent court exercising Federal jurisdiction establishing the order of the magistrate and preventing its being called in question. If this court made an order setting aside the conviction, there would be two inconsistent judicial orders in operation at the same time, that of the Court of Quarter Sessions confirming the conviction and that of this court discharging it. It would, of course, be open to the legislature to authorize a superior court to deal with an order of an inferior court notwithstanding that an intermediate court had confirmed it and the order of confirmation was not brought up for review. But even if the Justices Act 1902 (N.S.W.) has any such effect in State jurisdiction, at all events so much of it as so operates has no application to appeals to this court from courts exercising Federal jurisdiction.” (Emphasis added).
…
[61] It is apparent from these decisions, and others we were taken to, that difficult questions may arise in determining whether the decision of an intermediate court replaces the decision appealed from or whether it leaves all or part of the primary decision intact. In the former case, unless the decision of the intermediate court can itself be set aside for jurisdictional error, that decision is the operative one with the result that judicial review is not available in respect of the primary decision. On the other hand, if the decision of the intermediate court is not the operative decision because its scope was limited or its effect was not to displace the primary decision, then judicial review of the primary decision may be available, subject to the possibility that the applicant seeking judicial review is bound by an Anshun estoppel or the court in the exercise of its discretion refuses relief.”
“[34] The plaintiff's … application to the Tribunal for review of the Internal Review Decision invoked the Tribunal’s jurisdiction under [the relevant enabling legislation for the purposes of s 9 of the [Administrative Decisions Review Act 1997 (NSW) (ADR Act)]] and s 9 of the ADR Act. Once the Tribunal had determined the plaintiff’s application for review of the Internal Review Decision, it was the Tribunal’s decision … which became the operative decision…
[35] Accordingly, the first ground is not competent since it seeks to challenge… the Internal Review Decision, which [is] no longer operative.”
In relation to Ground 1 (b) and 2, Culleton submitted that it was an unsettled question whether this Court has the power to make orders in substitution for those made in a lower court, making reference to two judgments of Basten JA in Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 and Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9. In both cases, his Honour’s judgment related to circumstances where the orders to be made are necessary in law. In his written submissions, Culleton did not make clear how those cases were relevant to the present case.
Culleton appeared to imply a denial of procedural fairness that arose from the Interlocutory Tribunal Decision which were set out as follows at [17] and [22] of the Amended Summons:
"[17] …denied [Culleton] an opportunity to lodge a cross-claim against [the Tonks]", and
"[22] at the same time as it denied [Culleton's] application to join Black Diamond, [Senior Member] gave leave for [the Tonks] to join [Mr Culleton] personally."
Culleton alleged in the Tribunal Interlocutory Decisions, the Tribunal Member allowing the Tonks leave to amend their pleadings to include the s 18 ACL claim was legally unreasonable, because the application was “late” and was made “to target [Mr Culleton] personally based on its unfounded perceptions of [Steelbond’s] liquidity and to bankrupt [Mr Culleton] personally”.
In their written submissions in response to the Summons dated 4 August 2025, the Tonks submitted that neither basis is supported by evidence nor gave rise to legal unreasonableness.
The Tribunal Member gave oral reasons for his decision. There was no procedural or substantive unreasonableness that arose from the timing of the decision to grant leave to amend as well as an application by the Steelbond and Mr Lawrence to join a third party to the proceedings.
The Tonks also submitted that the absence of legal unreasonableness arose from the failure of Culleton and Steelbond to avail themselves of the process for contesting the decision to grant the Tonks leave to amend their pleadings. The decision to grant leave was an interlocutory decision from the Tribunal, from which an internal appeal can only be made with leave of the Appeal Panel pursuant to s 80(2)(a) of the NCAT Act. No such leave was sought, either at the time or subsequently, including before the Appeal Panel.
The Appeal Panel stated at [68]:
“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 [the orders allowing that amended claim] of the 22 May 2024 orders”.
Culleton alleged that the Tribunal Interlocutory Decisions to refuse to give Steelbond and Mr Lawrence leave to join a third party, Black Diamond, denied Steelbond procedural fairness.
The Tonks submitted the Tribunal Interlocutory Decisions was not open to review before this Court. The mechanism for appealing that decision is prescribed by s 80(2)(a) of the NCAT Act. No leave was sought to appeal against that decision, and this issue was not agitated on appeal before the Appeal Panel.
The Tonks opposed Ground 2 (Amended Summons [17]). Culleton appeared to imply a denial of procedural fairness that arose from the Interlocutory Tribunal Decisions.
It was submitted that no grounds are articulated in the Amended Summons as to why a denial of procedural fairness arose. No procedural unfairness arises from those orders, including as:
the Tonks were not aware of any cross-claim by Culleton against them which was either filed or proposed in the proceedings; and
Steelbond and Culleton did not appear to have actually sought leave to appeal the Tribunal Interlocutory Decisions.
During oral submissions, Mr Wilesmith maintained that “the difficulty with attempting to seek judicial review of the primary decision is that the decision has already been the subject of a merits review and, therefore, the appeal panel decision is the operative decision”.
The Tonks submitted that even if the decision of the Senior Member was amenable to judicial review, the decision did not involve any denial of procedural unfairness. The reason for the refusal to allow Steelbond and Mr Lawrence to join Black Diamond was clear and apparent from the reasons of the Senior Member at [23]: no claim was made by the Tonks against Black Diamond, and accordingly, “any claim which [Steelbond and Mr Lawrence] wish to make against that company will need to be made in a separate application”. As the Tribunal Proceedings commenced in December 2023 and had already been allocated a hearing date, the delay by Culleton and Mr Lawrence in commencing their application against Black Diamond “cannot be allowed to delay the finalisation of this application”.
Steelbond and Culleton did not appear to contest that joinder was inappropriate. Rather, the claim for denial of procedural fairness appears to rest on the Senior Member’s refusal to hear and determine any claim by Culleton against Black Diamond at the same time as the Tribunal Decision, on the bases that:
the cross-claim against Black Diamond was “essentially ready”;
the Tribunal member did not properly hear that Culleton was ready to lodge the application against Black Diamond, because of sound and technical errors with the audio-visual link; and
in refusing to hear and determine a claim against Black Diamond at the same time as the Tribunal Decision, the Senior Member gave inordinate weight to case management considerations at the expense of individual justice to the parties and shut Steelbond out of a case that was fairly arguable.
None of those contentions were established on the evidence or on the Tribunal Interlocutory Decisions:
Whether or not the claim against Black Diamond was “essentially ready”, which is denied, Steelbond was not shut out of bringing that claim. The Tribunal Interlocutory Decisions explicitly left open the option of Steelbond commencing separate proceedings against Black Diamond. Steelbond does not appear to have commenced such proceedings.
Even if there were technical errors which resulted in the Tribunal Decision not hearing a submission that the claim was ready to be brought, this could not conceivably have affected the Member’s conclusion that the delay in bringing that claim should not be allowed to affect the finalisation of the primary proceedings. Additional evidence would have been required to be filed for the proceedings against Black Diamond to be heard at the same time as the Tribunal proceedings, in which evidence was complete (including in respect of the s 18 ACL claim) and a hearing date had been set.
It is my view that, as explained in Wishart and Khamiss*,* the Tribunal Interlocutory Decisions and the Tribunal Decision are not amenable to judicial review for the following reasons:
the Appeal Panel Decision, which determined an internal appeal of the Tribunal Decision for the purposes of s 32 of the NCAT Act, is the decision in respect of which judicial review is sought. That decision was made following a re-hearing on the materials before the Tribunal. The Appeal Panel Decision replaced the Tribunal Decision as the operative decision determining Culleton liability, rather than leaving it intact. Judicial review of the Tribunal Decision is not available (Khamiss at [61]); and
to the extent that Culleton seeks judicial review of the Tribunal Interlocutory Decisions (grounds 1(b) and 2), no leave was sought to appeal against those decisions. The mechanism for appealing those decisions is prescribed by s 80(2)(a) of the NCAT Act Leave was required to be sought in order to bring an internal appeal of the Tribunal Interlocutory Decisions to the Appeal Panel. As in Khamiss*,* the effect was that Culleton had exhausted their rights of appeal, with the effect that judicial review of the Tribunal Interlocutory Decisions is not available. In any event, the Tribunal Interlocutory Decisions and the Tribunal Decision were lodged in an internal appeal and were overridden by the Appeal Panel Decision.
Further and importantly, s 34 of the NCAT Act reads:
34 Inter-relationship between Tribunal and Supreme Court
(1) The Supreme Court may—
…
(c) refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal or an appeal to a court could be, or has been, lodged against the decision.
Section 34(1) of the NCAT Act provides a basis for the Supreme Court to exercise its discretion to refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal has been lodged (and heard) against the internal decisions of the primary Tribunal member. Hence, I refuse to conduct a judicial review of the Tribunal Interlocutory Decisions and the Tribunal Decision.
The Tribunal Interlocutory Decisions and the Tribunal Decision were superseded by the Appeal Panel decision. The Appeal Panel Decision is the operative decision. Unless that decision is itself impugned for jurisdictional error, judicial review does not lie in respect of the earlier decisions.
The same reasoning applies to Ground 2, which alleges a denial of procedural fairness arising from the Tribunal Member’s refusal to permit a cross-claim against the Tonks.
In any event, there is no merit in Culleton’s submissions that Culleton and Steelbond were denied procedural fairness. This is because:
The Tribunal Member gave reasons for his decisions, including that it was apparent that the proposed claim against Black Diamond would not be ready in time to be heard at the same time as the application against Culleton and Steelbond, and the delay on the part of Steelbond and Culleton could not be allowed to delay the finalisation of the initial claim.
While in the Amended Summons Culleton submitted the Tribunal Member denied him an opportunity to lodge a cross-claim against the Tonks, the Tribunal Interlocutory Decisions does not mention a proposed cross-claim against the Tonks. This Court has not been provided with any filed or proposed cross-claim against the Tonks, and no submissions have been made in that respect.
It follows that judicial review grounds 1(b) and 2 fail.
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.
(2) Nothing in Part 3‑1 (which is about unfair practices) limits by implication subsection (1).
The Appeal Panel accepted Culleton’s submission that the Senior Member did not specifically address whether Culleton could be personally liable for a contravention of s 18 of the ACL, notwithstanding that the Tonks and Steelbond were parties to the building contract, and by not doing so constituted an error of law. The Appeal Panel then proceeded to determine the question.
In his points of defence dated 12 June 2024, Culleton:
admitted making the representation that Steelbond was licensed to do the works and had a team of experienced and qualified roofing professionals (at [23]);
Alleged that the representations if made were “mere puffery” (at [26];
Alleged that the representations that Steelbond was licenced to do the works if found to be made was “mere puffery” (at [27]).
“[91] Mr Culleton in the Steelbond/Culleton defence at [28] raised the defence that he was not a party to the building contract.
[92] 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.
…”
[93] 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
[94] 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
[95] 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].
…
[97] 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.
[98] 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.”
“If so, whether any relief should be granted
Whether the Tribunal misconstrued s 18 of the ACL and applied a wrong principle of law in finding that Culleton was jointly and severally liable with Steelbond for the loss suffered by Mr and Mrs Tonks by reason of its contravention
[99] 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 Culleton was jointly and severally liable with Steelbond for the loss suffered by Mr and Mrs Tonks by reason of its contravention.
[100] The Tribunal in the 20 November 2024 reasons at [73] did not specify the source of its power to make the money order against 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, 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 Culleton engage in misleading or deceptive conduct? …’ in the 20 November 2024 reasons we understand that the Tribunal found that Culleton was a person who engaged in the conduct which contravened s 18.
…
[104] 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) 14 BPR 27,361; [2010] NSWCA 37; (Jainran) 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].
[105] 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 compan’” 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 in Hamilton (Mason CJ, Wilson and Toohey JJ) observed at 128:
“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)
[106] 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:
“So far as the reasoning in Hamilton has any bearing upon the construction of s 9 of the [Fair Trading Act], it assists the respondent not the appellants. Their Honours stressed, with reference to remarks of Bray CJ in R v Goodall [(1975) 11 SASR 94], 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)”
[107] 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.
…
[109] We do not consider that [Mills v Walsh [2022] NSWCA 255] has any relevance to this issue. There was no issue in the appeal as to whether Mr Walsh [the director] could be separately liable to JSW [the company].
…
[111] In [Care A2 Plus Ply Ltd v Pichardo [2024] NSWCA 35 (Care A2)] Bell CJ at [100]-[117] set out the applicable legal principles with respect to direct liability for misleading and deceptive conduct, and relevantly at [106]- [107] observed:
“[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 (Narain) at [94]. The question is whether the role of the individual was more than merely ministerial.”
[112] 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.”
The Appeal Panel declined to grant relief to Culleton.
Before the Appeal Panel, Culleton submitted that s 18 of the ACL could not be invoked to improperly “pierce the corporate veil” to hold Culleton personally liable in circumstances where there was no privity of contract, contrary to the principle in Salomon v Salomon & Co Ltd [1897] AC 22 (**Salomon).
Culleton further submitted before the Appeal Panel and before this Court 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. He also sought to distinguish Mills v Walsh [2022] NSWCA 255 (Mills) on the basis that the company in that case was insolvent.
The Appeal Panel accepted Culleton’s submission that the Senior Member had not addressed the question of whether Culleton was personally liable for a contravention under s 18 of the ACL, and by failing to do so he made an error in law.
The Appeal Panel in its reasoning considered the authorities relied upon by Culleton including Salomon and Mills by and concluded that they were not relevant. I agree with that reasoning.
The Appeal Panel accepted and adopted what the reasoning of Bell CJ in Care A2. The Appeal Panel was not satisfied that the Senior Member applied a wrong principle of law in finding that Culleton was jointly and severally liable with Steelbond for the loss suffered by the Tonks by reason of Culleton’s contravention s 18 of the ACL. I might add that Care A2 is a more recent case in relation to more recent legislation, namely the ACL. The law has moved on from 1897’s case of Salomon.
For these reasons, this ground of judicial review fails.
These grounds allege that the decisions of the Senior Member and Appeal Panel were legally unreasonable insofar as they found Culleton personally liable pursuant to s 18 of the ACL.
Culleton cited sections of the Tribunal Decision and made the following submissions:
It was legally unreasonable and an abuse of process for the Tribunal Decision at [24] having found that there was no privity of contract between Culleton and the Tonks under the Home Building Act to use s 18 of the ACL to impose personal liability upon Culleton and referred to Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30.
The outcome, a finding by the Senior Member of misleading or deceptive conduct by Culleton under s 18 of the ACL, was legally unreasonable and s 18 of the ACL was used to achieve an ulterior purpose – a personal finding of liability against a company director at para [73] of the Tribunal Decision, when a finding of personal liability against Culleton under the Home Building Act was not open based on the written contract between the parties: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury). Culleton submitted, referring to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 that the higher standard of Wednesbury unreasonableness is needed to make a finding of the misleading or deceptive conduct under s 18 of the ACL.
At [24] of the Tribunal Decision the Senior Member stated:
“I find that the parties to the contract were Steelbond Australia Pty Ltd trading as town & country Australia of the one part and Mr and Mrs Tonks of the other part. It follows that Mr and Mrs Tonks are entitled to enforce the contract and the Home Building Act statutory warranties against Steelbond.”
“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.”
The Appeal Panel rejected the contention that there had been constructive failure by the Senior Member to exercise its jurisdiction when making a finding of reliance by Mrs Tonks on the impugned representation made by Culleton to Mrs Tonks that “the work on her roof would be carried out by appropriately licensed, qualified and experienced tradesman”.
The Appeal Panel found that Mrs Tonks relied upon the impugned representation in entering into the building contract.
Those findings by the Senior Member and the Appeal Panel are orthodox. They are not legally unreasonable.
This ground of judicial review fails.
Culleton contended that the Senior Member and the Appeal Panel misconstrued s 18 of the ACL and thereby engaged in jurisdictional error by interpreting it to apply to a company director, contrary to clearly established exceptions for piercing the corporate veil in law.
Before the Senior Member and the Appeal Panel, Culleton submitted that he should not be held personally liable as director under the ACL. The Tonks have sought to overcome privity of contract under the Home Building Act to impugn Culleton personally under the ACL and have breached the rule in Salomon*.* He further submitted that directors and officers are generally not personally liable for the companies’ obligations, provided they act within the scope of their authority. There was no evidence of fraud or knowingly improper conduct.
This was followed by Culleton’s closing oral submissions to the Senior Member to the effect that it was not appropriate for it to use s 18 of the ACL to “pierce the corporate veil” to hold Culleton personally liable.
Culleton submitted that the Appeal Panel held at [105], having regard to Houghton and Hamilton, that the principle in Salomon supported the position that the conduct of a director can be considered separate from the conduct of the company.
Culleton submitted that Houghton and Hamilton can be distinguished and that the Appeal Panel has misapplied the correct legal test and principle.
He submitted that Houghton is authority for a narrower proposition. The High Court held in the context of a consumer claim that officers of a company, in that case two employees of WSA Online Limited, Mr Houghton and Mr Student, not directors, were individually liable for misleading and deceptive conduct, notwithstanding that they were acting in their capacities as officers of the company at time: Houghton, [1]. The High Court did not consider the exceptions to the principle of separate corporate personality.
Hamilton is distinguishable because the case concerned a managing director of a company who was charged with offences against s 169 of the Companies (Western Australia) Code where a finding of accessorial liability was made against the company director. There is no suggestion of such facts or criminality in the present case.
Culleton conceded that s 18 of the ACL could be interpreted to apply to an individual, as a ’person’. However, he did not concede that s 18 of the ACL can apply to a company director other than according to clearly established exceptions in law. He submitted, under the doctrine of separate legal personality articulated in a company is a separate legal entity distinct from its directors, shareholders, officers and employees. concerned a one-man company in the United Kingdom against whom the company family member shareholders brought suit. The House of Lords held such action was barred by statute.
“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. Sometimes, a person (or corporation) who or which otherwise appears to have engaged in misleading or deceptive conduct by, for example, making a particular representation that engages the statute, may escape liability if they are a mere conduit of misleading information on behalf of another. As Mason ACJ, Wilson, Deane and Dawson JJ observed in Yorke at 666, persons who are mere conduits of information are not liable for misleading and deceptive conduct:
‘That does not, however, mean that a corporation which purports to do no more than pass on information supplied by another must nevertheless be engaging in misleading or deceptive conduct if the information turns out to be false. If the circumstances are such as to make it apparent that the corporation is not the source of the information and that it expressly or impliedly disclaims any belief in its truth or falsity, merely passing it on for what it is worth, we very much doubt that the corporation can properly be said to be itself engaging in conduct that is misleading or deceptive.’
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.”
He submitted, under the general law and since Salomon, with respect to s 18 of the ACL, the test is not solely whether the individual’s company director’s role was more than ’merely ministerial’. A director’s personal liability only applies to an individual company director where exceptions to the principle of separate corporate personality are established, generally for wrongdoing, that is, for: (1) fraud; (2) misconduct; (3) bad faith; (4) sham arrangements; (5) breach of directors' duties, for example, under ss 180-184 of the Corporations Act; (6) personal guarantees given by the director; and/or (7) insolvency or where a company is in liquidation or being wound up under the Corporations Act: Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549; Prest v Petrodel Resources Ltd [2013] UKSC 34 at [16]-[36]; [2013] 2 AC 415); VTB Capital plc v Nutritek International Corp [2012] 2 Lloyd's Rep 313; Jones v Lipman [1962] 1 WLR 832*;* Robinson v BMF Pty Ltd (in liq*) (No 2)* [2022] FCA 1191 at [210].
Culleton submitted that none of the recognised exceptions apply in this case. The company was not a sham arrangement or device. Culleton, did not know that the company, Steelbond, was unlicensed; Culleton had not engaged in fraud which required knowledge; or demonstrated misconduct, bad faith, breach director’s duties under the corporations law, or given personal guarantees.
Culleton’s evidence was that at all times he thought that Mr Lawrence, or Black Diamond, were licenced, and he did not know they were not licensed to perform roofing works under the Home Building Act until after the proceedings were brought before the Tribunal on 21 December 2023: Affidavit of William Joseph Culleton dated 20 June 2024, paras [7], [8].
There was no evidence before the Tribunal that Steelbond was insolvent or in liquidation.
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-gai Co-op Building Society (No 12) Ltd (1978) 22 ALR 621, 624-625. 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 (1990) 169 CLR 594 (Concrete Constructions).
Acts of an employee or officer for which it is sought to make a corporation liable do not necessarily amount to conduct engaged in by the corporation “in” trade or commerce simply because they happen to have been done in the course of employment; an officer can act in a different capacity to the company: ; .
As identified in the Appeal Panel Decision at [104], “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”.
It is settled law that this proposition can apply to contraventions of s 18 of ACL, and to equivalent statutory regimes for misleading and deceptive conduct (such as s 1041H of the Corporations Act).
In Milicevic v Ferrari East Pty Ltd (No 3) [2023] NSWSC 1116 (Milicevic), Henry J states at [469]:
“A director of a corporation who engages in conduct in the course of and for the purposes of the corporation’s business may engage in conduct for which he or she can be primarily liable under the NSW ACL and Victorian ACL. The liability is a product of their own conduct which they engaged in as a director. There is no need to find ‘separate conduct’, being conduct engaged in other than in their capacity as a director, to conclude that a director who engages in conduct for a company can also attract primary and personal liability for that conduct: [Jainran] at [101]-[105]; Arktos Pty Ltd v Idyllic Nominees Pty Ltd (2004) ATPR 42-005; [2004] FCAFC 119 at [13]; and [Houghton] at [44]-[46].”
“It is evident that an individual may contravene s 1041H (or equivalent) as a principal by conduct engaged in by the individual in the course of a corporation’s affairs: [Narain] (at 216– 217 [19] per Finkelstein J; at 225 [98] per Jacobson and Gordon JJ); [Houghton] at [40], [46] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ); Swiss Re International SE v Simpson [2018] NSWSC 233; (2018) 354 ALR 607 (at 695 [527] per Hammerschlag J). “
Other recent judicial statements supporting the proposition that an individual’s representation can give rise to liability both on behalf of the company and the individual include (without limitation) The Owners – Strata Plan No 87265 v Saaib [2021] NSWSC 150 (Henry J) at [462]; All Options Pty Ltd v Flightdeck Geelong Pty Ltd [2019] FCA 588 (Steward J) at [99]; Narain at [19]-[20] (Finkelstein J) and [93]-[100] (Jacobson and Gordon JJ); and STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 2) [2010] FCA 1240 (Rares J) at [55].
There is no foundation for Culleton’s submission that the application of s 18 ACL to an individual company director is constrained by the traditional exceptions to ‘piercing the corporate veil’. None of the cases cited by Culleton support that proposition.
The Appeal Panel found that Culleton was directly liable for the representations which he made. This was a legally correct application of the principles considered from Hamilton and Houghton, amongst others. No error of law arises from the Appeal Panel’s analysis.
For completeness, no justiciable issue or error of law arises from the submission as to Culleton’s evidence about his belief that the company and persons carrying out the building work were licenced (Amended Summons, [57]). That evidence was not accepted by the Tribunal member. In any event, as held by Bell CJ in Care A2 at [101]-[102], “a person’s knowledge or intention to mislead or deceive is immaterial to determining whether that person is liable for misleading and deceptive conduct… It is sufficient that the conduct leads or is likely to lead another party into error”.
The basis on which the Culleton’s representations were said not to have been made in trade or commerce is unclear from the Amended Summons at [61]. In any event, that submission is wrong at law. Culleton’s representations were statements made to induce Mrs Tonks to contract with Steelbond.
It is well established that representations of that nature amount to conduct engaged in “in trade or commerce”, regardless of whether the individual representor was themselves engaged in trade or commerce in the making of the representation.
In Houghton, Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ noted at [34],
“… statements made by a person not himself or herself engaged in trade or commerce may answer the statutory expression if, for example, they are designed to encourage others to invest, or to continue investments, in a particular trading entity.”
“I would also have found, applying [Houghton] at [34]‑[35] and [40]‑[47], that Mr Parisi’s representations were, for the purposes of s 18 of the ACL made in trade or commerce, whether or not he was himself engaged in trade or commerce at the time the representations were made. See also Taylor v Crossman (No 2) [2012] FCAFC 11, (2012) 199 FCR 363 at [41]‑[44]; Badger v John Kagelaris Pty Ltd [2019] NSWSC 1792 at [110]‑[111].”
The authorities relied on by the Tonks (including Milicevic and GetSwift), recognise only that a director may be personally liable where their own conduct constitutes the contravening conduct.
The Appeal Panel failed to identify any separate conduct or acts by Culleton beyond corporate acts done on behalf of Steelbond.
The oral representations by Culleton were made in trade or commerce in his capacity as director of the company not as an individual. The trade or commerce distinction is a useful discriminator of whether conduct is that of the corporation or of the officer or director: Houghton at [34].
By treating corporate and personal liability as co-extensive, the Appeal Panel erred in law and found liability and imposed a monetary order on an individual that was inconsistent with the object and purpose of Ch 2, Pt 2-1 of the ACL: Saloman, 25 (Lord Halsbury).
The joining of directors to proceedings would seem to be a regular occurrence at NCAT, to the significant disadvantage of one many companies and small businesses. The ACL has been interpreted in favour of consumers to the significant disadvantage of individual directors who have not engaged in any wrongdoing. The Court should not favour a wide interpretation of s 18 of the ACL that gives effect to widespread and manifest unfairness, particularly in the case of one-man companies and small businesses who have committed no wrongdoing.
It is submitted the common law intends no such thing and to the extent that an intermediate Court can change the common law it ought to do so: Saloman, 25 (Lord Halsbury).
Grounds 1(a) and 3 are substantially the same. Both contend, in substance, that the Appeal Panel erred in law in concluding that Culleton could be personally liable under s 18 of the ACL, and that to do so involved an impermissible departure from the principle in Salomon.
As discussed earlier in this Judgment by reference to Kioa, a Tribunal panel member (or Appeal Panel) is obliged to provide procedural fairness to the parties. So far as the decisions of the Tribunal Member and Senior Member is concerned for reasons explained earlier, it is no longer operative and cannot be the subject of judicial review.
The short answer to Culleton’s submissions is directly answered by Bell CJ in Care A2 at [106]-[107] (reproduced above). The Appeal Panel relied upon Bell CJ’s reasoning in Care A2 and relevantly stated at [112]-[113] of the Appeal Panel Decision:
“The 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 that a very high level of misconduct or breach should be found before the officer is personally liable.
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.”
That reasoning discloses no error; and is orthodox and not legally unreasonable.
Section 18 of the ACL provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Where a director personally makes the impugned representation, liability arises by force of the statute. It does not depend on establishing an exception to the principle of separate corporate personality. The principle in Salomon does not protect a director from liability for his or her own contravening conduct (see Houghton at [46]).
The Appeal Panel correctly understood and applied that distinction. It did not misconstrue s 18 of the ACL.
Further, as the Appeal Panel correctly noted, Culleton admitted making the representation that Steelbond was licensed to do the works and had a team of experienced and qualified roofing professionals (at [20] of his points of defence and at [33] of the Appeal Panel Decision). The Appeal Panel’s finding that he personally engaged in the impugned conduct was therefore correct.
These grounds of judicial review fail.
“[65] 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.”
“[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.”
Culleton submitted the Senior Member erred by failing to consider substantial, clearly articulated written and oral submissions relating to the credibility of the Mrs Tonks made by Culleton, 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; [2003] HCA 26 (Dranichnikov); SZMTA.
Culleton raised the credibility of Mrs Tonks in their Outline of Submissions to the Senior Member dated 12 August 2024 contending at [13] and [17] that:
the Tonks failed to mitigate loss for more than one year by denying access to Culleton to rectify incorrect ridge capping (when no party knew the company was unlicensed): Home Building Act*,* s 18 BA;
Mrs Tonks was aware of pre-existing gyprock damage and had said to the occupational hygienist they had suffered ill health; and
Culleton was a respected businessman and truthful witness whose account should be preferred.
There was evidence before the Tribunal that contradicted this finding included: the affidavit of Culleton dated 26 April 2024 (para 8), where his deposed understanding was that the Tonks’ request was to replace the existing roof due to the fact that the existing roof was leaking; and a Steelbond Inquiry Form dated 2 April 2022, one week before the contracted was entered into on 9 April 2022, recording that the job was for “[l]eaking, asbestos removal, want to install solar panels, government rebate’.
According to Culleton, the Senior Member’s findings at paras [50]-[54] of its decision were irrational, illogical and were not made on logical grounds or supported by logical inferences, in the sense warranting judicial intervention: Minister for Immigration v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [131] (Crennan and Bell JJ); Plaintiff S20/2002 v Minister for Immigration (2003) 198 ALR 59; [2003] HCA 30 at [4] (Gleeson CJ).
While credibility is ordinarily a matter for the tribunal of fact, its findings on credibility must be based on logical grounds and inferences: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox). This Court, on conducting judicial review, may interfere with factual findings where they are irrational or illogical in the legal sense: SZMDS.
The Senior Member’s reasoning was irrational and illogical for reasons as follows:
it disregarded contemporaneous documents inconsistent with the Mrs Tonks’ account about the existence of leaks pre-dating the contract;
it assumed credibility merely because the Mrs Tonks resided in the house; the premise was sound but the conclusion that Mrs Tonks should be preferred on the question of whether the roofing leaks were pre-existing was invalid.
Culleton’s argument before the Senior Member and the Appeal Panel was that the evidence suggested that the Tonks’ roof had pre-existing damage, and that accordingly Culleton’s evidence on that issue should be preferred over Mrs Tonks’. The ‘central submission’ which the Senior Member allegedly failed to consider was that “Mrs Tonks’s mould-related ill health disclosed to the expert hygienist and referred to in his report was consistent with pre-existing leaks”.
The Tribunal Decision addressed those credibility submissions. When Steelbond and Culleton ran this ground in the Appeal proceedings, the Appeal Panel found that the Senior Member had considered the credibility issue at [65].
The Tonks submitted that the Senior Member dealt with this anterior issue. He set out the evidence of Mrs Tonks and of the experts in the 20 November 2024 reasons at [14], [28]-[29]:
“[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.
…
[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.”
It was submitted that the Senior Member explained why he preferred the evidence of Mrs Tonks to that of Culleton in the 20 November 2024 reasons at [52]-[54]. The Senior Member did not mischaracterise the submissions of Culleton and Steelbond but rejected them.
The Tonks submitted that those were findings of fact made on logical grounds and inferences: Fox. The Amended Summons did not otherwise articulate any irrationality or illogicality in the Senior Member’s decision-making (Amended Summons [36]).
Culleton submitted that the Tonks’ assertion that the credibility issue was addressed by the Senior Member’s reasons misread those paragraphs. They concern general demeanour, not Culleton’s specific submission that Mrs Tonks’ mould-related illness and evidence of preexisting leaks and damage tended to undermine her credibility.
Alternatively, the credibility findings were legally illogical: contemporaneous documents (Steelbond Inquiry Form 2 April 2022) contradicted the Tribunal Decision conclusion. Such absence of logical connection satisfies the SZMDS test.
Mrs Tonks’ general demeanour is a matter of fact. It is only one consideration that is taken into account when the Court or Tribunal is assessing the credibility of a witness. It can only be determined by the Senior Member: Fox. A judicial review lies only if there is no evidence to support the Senior Member’s factual findings. The Senior Member made findings at [52]-[54]. The force of Culleton’s submissions is that the Senior Member and the Appeal Panel had to accept Culleton’s submissions as to the credibility of Mrs Tonks’ evidence.
For reasons explained earlier in this judgment, Culleton’s submissions in relation to the decision of the Senior Member in this judicial review are refused pursuant to s 34 of the NCAT Act. In any event, the Appeal Panel rejected that the Senior Member failed to consider the issue of Mrs Tonks’ credibility. Further, the Appeal Panel did not find that the Senior Member had made an error of law and provided reasons for its decision as set out earlier in this judgment.
This ground of judicial review fails.
Culleton submitted that the Appeal Panel Decision misconstrued the correct legal test for the defence of mere puffery under s 18 ACL; the Senior Member also made findings on causation that were illogical, irrational, or not based on findings or inferences of fact supported by logical grounds: SZMDS at [131] (Crennan and Bell JJ).
It was also submitted that the Senior Member did not consider the defence of mere puffery that Culleton raised at all and the Appeal Panel found the Tribunal Decision constructively failed to exercise jurisdiction by considering the question, which error was material: Appeal Panel Decision at [83].
The Appeal Panel decided at [85] that it had to determine for itself the ‘character’ of the impugned representation.
Culleton submitted that the impugned representations consisted of statements by Culleton to Mrs Tonks and on Steelbond’s website including the following:
“Roof Restoration`s At Town and Country Roof Restorations we have a team of experts with many years’ experience restoring roofs back to their original best. We can give you the roof that you have always wanted and add thousands of dollars to the value of your home [sic].”
“Roof Replacement`s
Our Team at Town & Country roofing, can replace you existing heavy cement tile, terracotta or asbestos roof with ultra durable Colorbond roof material to improve the look and feel of your home [sic].”
“Our Pledge With our proven expertise and vast experience, you can rest assured your in the most capable hands around. When it comes to the job, we’ve been tested time and again and delivered upon our promises to the full.
Whether it’s a small repair job, maintenance or you need a completely new roof, we cover all aspects of roof restoration and repair in greater Newcastle, the Hunter Valley and Central Coast regions. For trusted reliable roof protection time and again choose Town & Country Roof Restoration.
What makes us different? We do NOT subcontract. Over 30 ears operating with the same name, same builder’s licence, same owner, same supervisor, same product with over 5000 roof’s restored [sic].”
The Tonks’ points of claim before the Senior Member stated that the impugned representations were: a) the builder was licensed to do works; b) the builder was insured to do the works; c) the builder had a team of experienced and qualified roofing professionals; d) the builder was reliable and dependable; e) the builder did high quality work; f) the builder was experienced in the replacement of asbestos roofing; g) the builder has expertise in roof replacement over 30 years with expert roofing contractors and; h) the builder did not outsource its work.
Culleton further submitted to the Senior Member and the Appeal Panel that the representations were mere puffery or different to a binding valid offer, referring to Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 (Carbolic Smoke Ball) and Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12.
The Appeal Panel relied on We Buy Houses at [64]-[68] (Gleeson J) to find that a characteristic attributable to puffery is whether it is capable of being proved correct or incorrect. The Appeal Panel found at [89] that the impugned representations were “not incapable of being proved correct or incorrect”.
He contended, while that is adequate, it is not sufficient. By confining its consideration to the question of whether the representations were capable of being proved correct or incorrect, and not considering whether they were mere statements of opinion rather than fact, the Appeal Panel asked itself the wrong question and identified a wrong issue and erred in law: Stuart Alexander and Co (Interstate) Pty Ltd v Blenders Pty Ltd (1981) 37 ALR 161, cited in We Buy Houses.
Culleton gave evidence to the Senior Member that he did not know that Mr Lawrence and Black Diamond were unlicensed for roofing works under the Home Building Act indeed at the time of the representations he, albeit mistakenly, thought they were licensed.
The affidavit of Mrs Debra Tonks dated 21 May 2024 provided to NCAT was prepared only following the late claim under the ACL and contained self-serving evidence of her knowledge of the representations and website.
During cross-examination, Culleton questioned Mrs Tonks reliance on the website which used poor spelling and submitted Mrs Tonks did not even read or rely on the website. Mrs Tonks was asked if she thought Culleton, a man of 70 years, would perform the physical work himself. Mrs Tonks answered: no.
The representation that the builder did not outsource its work was not misleading. Mrs Tonks was aware of contractors Mr Lawrence and Black Diamond performing work and indeed entered into numerous discussions with the contractors on the job but did not raise an issue until the Tribunal proceedings: affidavit of Mrs Debra Tonks dated 21 May 2024 at [13], [14] and [23].
The error of law alleged is that the Appeal Panel, after considering the principles as to whether representations amount to mere puffery in We Buy Houses at [64]-[68] (per Gleeson J), confined its consideration to whether the impugned representations were capable of being proved correct or incorrect, and did not consider whether the representations were mere statements of opinion rather than fact.
The Tonks submitted that this allegation misstates the Appeal Panel’s reasoning at [89]. The Appeal Panel considered why the representation (being that the building work would be conducted by appropriately licenced, qualified and experienced tradesmen) related to a factual issue material to context and explained why “the issue of licenced contracting was not a matter of marketing”.
It was also not apparent that Culleton did, in fact, make a submission to the Appeal Panel that the representations made by Culleton were themselves statements of opinion. This was not alleged in the Amended Summons. The highest this is put by Culleton is at Amended Summons [78], that “[o]ral submissions were made to Appeal Panel at the appeal hearing on 5 May 2025 the effect that mere puff referred to statements of opinion rather than statements of fact: [Carbolic Smoke Ball]”. It was not necessary for the Appeal Panel to explicitly address why the representations were not “mere statements of opinion” if that submission was not in fact put.
Even if the Appeal Panel’s failure to consider whether the representations were statements of opinion was an error of law, it was not a material error which would have deprived Culleton of a possibility of a successful outcome. This is because the Appeal Panel correctly concluded that the representation in question—that the work would be conducted by appropriately licenced, qualified and experienced tradesmen—was not a ‘mere puff’, but a substantive, measurable representation as to a state of fact which induced the Mrs Tonks to contract with Steelbond.
“[23] [Culleton] admits paragraph 19(c), 19(d), 19(e) and 19(g). Those representations were not misleading or deceptive under s 18 of [the ACL]; they were true.
[24] [Culleton] denies paragraph 19(a), 19(b) and 19(f). [Culleton] did not make the representations contained in (a), (b) and (f) to the [Tonks].
[25] [Culleton] did not knowingly mislead or deceive the [Tonks].
PARTICULARS
a. [Culleton] never represented to the [Tonks] that [Steelbond] was licenced to perform residential building works – specifically, roofing works – under the [Home Building Act];
b. [Steelbond] had always intended to subcontract the work to licensed roofers, including Black Diamond and the Second Respondent;
c. [Steelbond] and [Culleton] did not know that Black Diamond and [Mr Lawrence] were not licensed for roofing works under the Act until the proceedings were commenced in December 2023;
d. At all material times, [Culleton] believed that Black Diamond would perform the work under the contract in a professional and tradesmanlike manner and in accordance with the statutory warranties in the Act;
e. Black Diamond performed all work under the contract independently of and at arms length from [Steelbond] and [Culleton].
[26] [Culleton] denies paragraph 20. The representations asserted were mere puffery or not made at all.
[27] Assuming they were made, none of the representations asserted in paragraphs 19(a), 19(b) and 19(f) caused any damage to the [Tonks’] roof.
PARTICULARS
a. Report of Mr Robert Taylor, expert builder dated 25 April 2024.
[28] For completeness, [Culleton] was not a party to the contract and did not have privity of contract.”
“[83] 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.
[84] 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.
If so, whether any relief should be granted
[85] We have decided that we should determine the character of the impugned representation.
…
[88] 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 Pty Ltd v Luxottica Retail Australia Pty Ltd [2013] FCA 648 (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] 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; (1983) 50 ALR 231 at 238. In that case, a representation that a shopping centre was a good investment was found to be in the nature of puffery.
[66] In Jainran at [117], Bryson AJ gave as examples of puffery statements such as ‘The greatest show on earth’, ‘the best car in its class on the market today’, ‘leading a new wave of talent’ and ‘we’ve already been getting interest in this property’.
[67] In Kaye, at [123], Kenny J held that representations to the effect that Mr Kaye could turn or make ordinary Australians into property millionaires by following his strategies; and that he would demonstrate this claim, were not puffery in the context in which they were made.
[68] In Stuart Alexander and Co (Interstate) Pty Ltd v Blenders Pty Ltd (1981) 37 ALR 161, Lockhart J said, in considering comparative television advertising for coffee, at [164]:
“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.”
[89] 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 [Home Building 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 [Home Building 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 [Home Building 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.”
“I am satisfied that 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.”
“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.”
There is no error in relation to the Appeal Panel’s findings in relation to causation.
The Appeal Panel accepted the Tribunal Member’s findings above and concluded that the representation that the work would be conducted by appropriately licensed, qualified and experienced tradesmen was not a ‘mere puffery’ but substantive and that this representation induced Mrs Tonks to contract with Steelbond. The Appeal Panel’s finding that these representations go beyond ‘mere puffery’ and were substantial. This is an orthodox finding. This ground of judicial review fails.
The Amended Summons appears to allege that the Senior Member miscarried in its causation analysis in respect of the s 18 claim, because:
causation issue 1: Culleton’s evidence was that he did not know that Mr Lawrence and Black Diamond were unlicensed for roofing works (Amended Summons, [81]);
causation issue 2: Mrs Tonks’ evidence was that she did not think that the Culleton would do the work himself (with the implication that she had not relied on the impugned representations) (Amended Summons, [82]); and
causation issue 3: the unlicensed status of Steelbond did not cause the damage arising from the faulty building works (Amended Summons, [84]).
The Tonks made the following submissions that even if this claim were able to be agitated in judicial review proceedings, each of those arguments is legally wrong or irrelevant:
Causation issue 1: whether Culleton knew that Mr Lawrence and Black Diamond were licensed was irrelevant to whether the statement that the work would be done by licensed professionals was misleading or deceptive. As held by Bell CJ in Care A2 at [101]-[102], “a person’s knowledge or intention to mislead or deceive is immaterial to determining whether that person is liable for misleading and deceptive conduct… It is sufficient that the conduct leads or is likely to lead another party into error”.
Causation issue 2: it was immaterial that the Mrs Tonks’ evidence was that she did not think that the Culleton would do the work himself. The Tribunal member found that Culleton represented that the work “would be carried out by appropriately licensed, qualified and experienced tradesmen” at [72]. That representation was untrue, and was likely to mislead or deceive a consumer, and did in fact mislead the Mrs Tonks: the Tribunal member was satisfied that she relied on that representation in entering the contract at [72]-[73]. As conceded by Culleton (at Amended Summons [83]), the weight to be given to the Mrs Tonks’ evidence was a matter for the Tribunal Decision.
Causation issue 3: this misconstrues the operation of causation under s 18 of the ACL. The Senior Member found at [73] that the Tonks suffered loss by reason of the representations, because they were induced to contract with Steelbond in reliance on those false and misleading representations, and suffered loss as a consequence of the work [performed under that contract] being carried out in a defective manner. No error of law arises from that causation analysis.
Culleton submitted his representative made oral submissions to the Appeal Panel at the hearing on 5 May 2025 that ‘mere puffery’ referred to statements of opinion rather than fact.
Culleton reiterated that the causal link drawn between the alleged misrepresentation and roof damage was irrational in the legal sense: the admitted source of loss was incorrect ridge capping ordered by third-party contractors. The Senior Member did not make a finding that Culleton personally caused the damage alleged. The Senior Member’s causation reasoning lacked logical foundation: SZMDS at [131].
The Appeal Panel Decision made it clear that it accepted the Senior Member’s findings on causation. I have already referred to the Senior Member’s findings under the Appeal Panel’s decision on causation.
These submissions on causation fail.
The Court orders that:
The Amended Summons dated 29 September 2025 is dismissed.
The plaintiffs are to pay the defendants’ costs.
**********
Culleton
Tonks [2026] NSWSC 174
(2008) 169 FCR 211
(2000) 202 CLR 45
(1990) 169 CLR 594
(1995) 184 CLR 163
(2003) 77 ALJR 1088
(2003) 214 CLR 118
(2006) 225 CLR 553
(1985) 159 CLR 550
This was an appropriate case management decision by the Tribunal Member in light of the objects of the NCAT Act, including materially the objects in s 3(d) of the NCAT Act of the legislative scheme being to enable the Tribunal to resolve the real issues in proceedings justly, quickly and cheaply and with as little formality as possible, and in s 3(e) of the NCAT Act to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality.
He further submitted, in New South Wales and Australia, the doctrine of separate corporate personality is entrenched in s 119 of the Corporations Act 2001 (Cth), which provides that a company comes into existence as a separate entity upon registration.
Culleton noted that the Appeal Panel applied the test set out in passages [106]-[107] of Bell CJ in Care A2 concerning direct liability for misleading and deceptive conduct:
The actions of Culleton personally were not “conduct” engaged in “in trade or commerce”. That conduct, if at all, was engaged in by the company, Steelbond: Houghton. By way of analogy, Culleton also holds directorships in other corporations, including Culleton Family Holdings Pty Ltd and Global Business Tools Pty Ltd.
Culleton submitted, the Senior Member and the Appeal Panel should have found liability under the ACL as against Steelbond, if at all: Jones v Lipman [1962] 1 WLR 832.
Further, he submitted the error was material and could have affected the outcome: Hossain; SZMTA.
The Senior Member’s misapprehension of its powers under s 18 of the ACL by asking itself the wrong question and by identifying a wrong issue affected its exercise of power to make a money order under s 236 of the ACL (conferred on the Tribunal by ss 28 and 79N of the Fair Trading Act), this constituted jurisdictional error and certiorari should issue to quash the decision: Craig v South Australia (1995) 184 CLR 163 (Craig) at [176]-[180].
it mischaracterised the Steelbond and Culleton’s submissions regarding the Tonks’ ill health and pre-existing leaks.
Steelbond and Culleton submitted to the Senior Member during closing oral submissions that Mrs Tonks mould-related ill health disclosed to the expert hygienist and referred to in his report was consistent with pre-existing leaks. The Senior Member did not consider this submission.
By failing to consider this central submission, the Senior Member denied Culleton procedural fairness and fell into jurisdictional error: Dranichnikov, [86].
While the weight given to Mrs Tonks’ evidence is a matter for the Tribunal, the Tribunal’s ultimate findings must not be illogical, irrational, or not based on findings or inferences of fact not supported by logical grounds: SZMDS at [131].
Steelbond’s unlicensed status did not, in any event, cause the damage – it was conceded by Culleton that Mr Lawrence and Black Diamond ordered the incorrect ridge capping which caused the water ingress; a finding that Culleton’ misleading and deceptive conduct caused the damage of $61,993.53 to the Tonks’ roof was illogical, irrational and not supported by logical inferences: SZMDS at [131].
The error was material and could have affected the outcome, mere puffery operates as a complete defence to misleading and deceptive conduct and is puffery is not actionable under s 18 of the ACL: We Buy Houses at [64]; Hossain; SZMTA. Similarly, a finding of causation was a precondition to liability under the ACL.
A misapprehension of the Tribunal’s powers and functions under s 18 of the ACL - by asking itself the wrong question, by failing to identify the correct issue, failing to consider relevant considerations, and taking into account irrelevant considerations - affected the exercise of the Tribunal’s powers under s 236 of the ACL and s 79N of the Fair Trading Act; the Tribunal did not have the power to make a money order; this constituted jurisdictional error and justifies the decision being set aside by an order in the nature of certiorari: Craig, 176 – 180.
(2010) 239 CLR 531
(2019) 264 CLR 421
(2018) 264 CLR 541
(2013) 249 CLR 332
(2010) 240 CLR 611
(2003) 198 ALR 59
(1975) 11 SASR 94
(1978) 22 ALR 621
(1981) 37 ALR 161
(2014) 86 NSWLR 674
(1941) 64 CLR 470
(1988) 166 CLR 121
(2023) 111 NSWLR 304
(1989) 16 NSWLR 549
(2018) 354 ALR 607
(2012) 199 FCR 363
(1993) 45 FCR 164
(1983) 50 ALR 231
(1984) 157 CLR 215