Lauer & Ng v Corner

NCAT Consumer and Commercial|2015-05-19

Background

Ms Rachel Ng is, or was, just prior to the commencement of the hearing in this matter, the National Technical Manager - Motor, Australian Underwriting, for Wesfarmers Insurance. She is married to Mr Simon Lauer, who is, or was, as above, the Sales Development Manager - Primary Freight, for Woolworths Limited. I will refer to them together as "the homeowners", and individually as required.
At the beginning of 2014, the homeowners, who had recently purchased a home which Ms Ng described as "freshly renovated for sale when we bought it", decided they wished to make further renovations and so started to look for a builder. The place they chose to look, based on the advice of "a colleague", was a web site called Home Improvement Pages, usually referred to by the parties in this application as "Hi Pages".
This site apparently works as follows: for a homeowner, it is necessary to sign up with the service, and then place a request online, together with a brief description of the services being sought. In the case of the homeowners in this case, they provided the following comment: "Home improvement, i.e. knock down wall between living and kitchen area, French door/sliding door lead to balcony, house extension, landscaping, bathroom Reno and etc."
Then, those who operate the site arrange to put a number of contractors who have similarly "signed up" in touch with the prospective clients, the object of the site being to enable clients to "get three quotes". From that point on, the contractors and the clients make any further arrangements for the works to be done.
In this case, on or about 25 January 2014 (but probably just prior to that date), Ms Ng received a telephone call from "Ike Comer" (the respondent).
At this point, it will be helpful for later understanding and consideration of this application, to set out in some detail the course of events, rather than the usual brief summary by way of background.
Mr Comer introduced himself as being from a company called Satisall Pty Ltd. This is significant, because the HI Pages site had advised Ms Ng that in response to her request this company had indicated their interest in helping with their request. Ms Ng arranged for Mr Comer to attend her home on 25 January 2014 in order to see what work was required.

Who is Whom?

We have met the homeowners and Mr Comer, and also a builder - "Charlie".
We have also seen a reference to a "D S Kim" on the S & J Constructions business card provided by Mr Comer. That business card suggests (at least at first glance) that "S & J Constructions" is a building firm and that "D S Kim" is the licence-holder, so perhaps he is a builder, too. That is certainly what Ms Ng says she thought: she thought "Charlie" was the builder "D S Kim". That is why "D S Kim" was initially joined as the second respondent. However, once this application was first listed for a directions hearing, and Mr Kim turned up to the Tribunal, Ms Ng discovered that he was not "Charlie" as she had thought, but was a complete stranger!
As outlined by Ms Ng in her statement, following a discussion with Mr Kim she was apparently satisfied that Mr Kim had no knowledge of these events or at least that Mr Comer did not work for him and nor did Charlie, although he said that he knew Charlie. Mr Kim agreed to provide a witness statement, which appears at "RN24" to Ms Ng's statement.
Mr Kim's role in these proceedings will continue, but at this point I note that Mr Kim was always known as "Johnson" to the parties, while "Charlie" turns out to be a painter named Do Hyun Park. His contractor licence expired on 14 July 2013, according to a search conducted by the homeowners and not disputed. The number of the licence was 186126C - the number shown on the Satisall Pty Ltd business card provided by Mr Comer and described in paragraph 7 above.
While on the subject of licences, Mr Kim's licence number was 217469C (see the business card described in paragraph 11 above) and was for two classes: builder, and carpenter. The carpenter licence commenced on "11 August 2009" and ended on "19 January 2011". The building licence commenced on the latter date and ended on "10 August 2014". It was subject to the condition: "Only for contracts not requiring home warranty insurance".
That is, we have the following: 1. Ms Rachel Ng and Mr Simon Lauer - applicant homeowners; 2. Mr Ike Comer - "National Sales and Marketing Manager" for a number of companies and allegedly the "Builder" in this application, respondent; 3. Mr Do Hyun Park also known as "Charlie" - an unlicensed painter, associated in some way with Mr Comer, who worked on the site; and 4. Mr Dae Sup Kim also known (to Ms Ng) as "Charlie" but really "Johnson" - unlicensed builder and former carpenter, whose role in this application is yet to be determined.

Applicants

The applicants each provided a statement (a very detailed one from Ms Ng and a very short one from Mr Lauer) and statements from Mr Kim. Ms Ng, Mr Lauer, Mr Park and Mr Kim also gave oral evidence and were cross-examined.
The applicants' evidence included a great deal of documentary and photographic material, and an expert report in relation to defective works dated 18 November 2014 prepared by Mr G B Smith. This report is in the appropriate format for expert reports in the Tribunal.
Ms Ng was cross-examined at length by Mr Zikmann. 1. Ms Ng denied she had any knowledge of risk in relation to building contracts and although she conceded she could have obtained legal advice, as she and her husband are very busy and she gained confidence from the HI Pages website, she did not consider it necessary to spend money on lawyers. She denied Mr Park provided the quotation for $155,000 and insisted it came from Mr Comer. She agreed she provided the floor plans and the comments thereon, in the form of a "wish list". 2. Mr Zikmann took Ms Ng through a list of works which she agreed were either completed or partly completed, including some timber framing upstairs. 3. In relation to the contracts, the issue was whether a scope of works was attached to all or any of them. Ms Ng was steadfast in denying that a scope of works was attached to any of those documents. Further in relation to the three contracts, Ms Ng also steadfastly refused to concede that it was her idea there be three separate contracts, or that she or Mr Lauer sought to avoid paying for home owners warranty insurance. She stated that initially she did not know about such insurance at all. 4. In relation to "Charlie", Ms Ng agreed that she thought Charlie (that is, Mr Park) was the builder himself, although she denied that he organised the work, stating that Mr Comer organised the works. 5. Ms Ng was also cross-examined at length in relation to the kitchen and windows. She agreed the kitchen manufacturer took measurements and that the windows manufacturer attended the site more than once to discuss the homeowners' requirements. However, although Ms Ng agreed that deposits had been paid to each contractor (or rather, to be more precise, sums of money intended to be deposits were paid to Mr Comer), no products were ever delivered In fact she appeared to deny that she or Mr Lauer ever approved any windows design, and denied she ever instructed the windows manufacturer to proceed. 6. Ms Ng was also cross-examined in relation to attempts to continue with the works. She agreed that Mr Comer was willing to continue and to return to the site, but she stated only on payment of a further $10,000.00 to which she would not agree. She also stated that she was not satisfied with the proposed scope of works on returning, being "RN21".
The applicants initially believed Mr Park could not be located as he was overseas (later demonstrated not to be accurate). In any case, Mr Park attended the hearing and was permitted to give evidence in chief, and was then cross-examined. 1. Mr Park first stated that he had known both Mr Kim and Mr Comer for about 2 or 3 years. He acknowledged that he knew Mr Comer as a salesman who finds work for builders and other contractors. Mr Park had signed up to HI Pages (as described above) and agreed he would request Mr Comer to follow up some inquiries received through that web site. 2. Mr Park agreed Mr Kim was a friend of his but denied they ever worked together. 3. Mr Park agreed he had attended the homeowners' premises prior to the contracts being signed but denied he understood what was being discussed, stating that Mr Comer organised everything. He specifically denied he did the costing for the subject works. At the same time, he agreed that he worked out the job would cost $155,000.00. 4. Mr Park stated that he believed Mr Comer had 40 years experience in the industry, specifically roofing. However, Mr Park agreed that he, Mr Park, organised the trades for this job, showed the tradesmen what had to be done and that he, Mr Park, paid the tradesmen, in cash, provided to him by Mr Comer. He agreed he did not provide Mr Comer with any invoices on this job and did not receive any invoices from the tradesmen. 5. In relation to the signing of the first two contracts, Mr Park initially stated that he was there when the contracts were signed and that he watched the contracts being signed. He then stated the contracts were not signed in front of him. Asked if he was stating now that he was not present, Mr Park said words to the effect of "That's why I want an interpreter". He then stated that he could not remember if he saw Mr Comer give the homeowners the documents to sign. 6. Mr Park stated he prepared the scope of works which he then gave to "Judy" (Mrs Comer) to correct. He then stated that he, Mr Park, did nothing on that scope of works. When shown the contract with its reference to "see scope of works" Mr Park stated that he could not read that. 7. Mr Park agreed that Mr Comer gave him money for the kitchen and windows, but denied making any payments in relation to those works. Mr Park stated that no invoices were provided in relation to this job (see (4) above) and when shown the S & J invoice "RN23" stated that he could not remember if he prepared that invoice. He then stated that he prepared the Credit Memos included in the evidence at "RN18". Mr Park stated that Mr and Mrs Comer set up the format for these documents and that when he, Mr Park, prepared them, he sent them to Mrs Comer to check the English. He denied sending these documents to Mr Kim and denied making any payments to Mr Kim for the use of his licence. In that regard Mr Park agreed he was an unlicensed painter and that he had no licence at all for the subject works. Mr Park also denied that it was he who requested that Mr Kim permit his licence to be used for this job. However, Mr Park agreed he attended a meeting in Bondi Junction at a coffee shop at which Mr Comer requested Mr Kim's assistance in "sorting out some problems" on this job.
Mr Park was then cross-examined. 1. Mr Park stated that he had gone overseas for only a couple of days, and was otherwise in Australia with the same contact details. Mr Park also gave evidence in relation to attending a solicitor "in the city" together with Mr Comer. 2. Mr Park stated that Mr Comer gave him $10,000.00 for this job, which he paid to various workers. He also stated he paid the kitchen company the sum of $10,000.00.
In re-examination, Mr Park stated that he had taken Mr Kim to see a solicitor and that he did not understand when the question was put to him, that the solicitor had suggested he obtain his own solicitor.
Mr Kim was cross-examined on two statements, dated 7 November 2014 and 5 February 2015. 1. Mr Kim stated that he has a current builder's licence, restricted to works less than $20,000.00 (that is, for which home owners warranty insurance is not required). 2. Mr Kim then explained that "S & J Constructions" is not owned by him, after initially agreeing that that name was registered to him, that he uses that business and that he puts that business name on his invoices, since about 2000. However, when questioned in relation to S & J Constructions Group, he stated that that is his company and he uses that name on his invoices. S & J Constructions was said to be owned by Igong Pty Ltd. 3. Mr Kim stated that he did not authorise the use of his company name on invoices or letterhead. He agreed he was introduced to Mr Comer by Charlie and that Mr Comer obtained some work for him, Mr Kim, in 2012 or 2013. Mr Kim stated that Mr Park never worked for him, although he had assisted Mr Park with some small jobs in the Korean community. He knew Mr Park did not have a builder's licence. 4. Mr Kim agreed he had supplied his insurance details to Mr Park previously, on the basis that Mr Park was going to find some work for Mr Kim, which would be done under Mr Kim's name (or the company name, presumably) and licence, but that he heard nothing further about it. In relation to the works the subject of this application, Mr Kim states that he had no idea about the work, that he had received no report about the work or the claim, until he met the applicants at the Tribunal. 5. However, Mr Kim agreed that in about May 2014 he was requested by Mr Park to attend a meeting with Mr Comer and he was asked to help sort out problems. Mr Kim stated that he refused as he did not want to get involved. He denied again that he knew work was being performed under his licence. In answer to a question that Mr Kim attended the meeting because he was worried about work being performed under his licence, Mr Kim stated that he received a letter from the Office of Fair Trading, that he attended the meeting at Charlie's request and Mr Comer suggested he agree that he was doing this job and that Mr Comer would pay him for that, and that then Mr Kim could help "in this case" and could go to a meeting with a lawyer. Mr Kim stated that he does not agree with this case and that he left the meeting with the lawyer.

Respondent

Mrs Comer and Mr Comer both provided written statements with attachments and were cross-examined on their statements. 1. Mrs Comer stated that she and Mr Comer represent several builders, including Satisall Pty Ltd, S & J, and Interknit (the sock company). She could not remember any names as the relationships were "more informal" than company to company. She could not produce any invoices as she does not do invoices. She stated that she would get invoices from Mr Park and would then proof read them, because she is aware that Mr Park assists her husband. 2. Mrs Comer denied knowledge of the provisions of the Home Building Act. She stated that Mr Comer has been involved in the building industry only as a salesman and with a roofing company. Her only involvement is in relation to marketing, concerned with the logo and the look of documents, the "corporate look". 3. In relation to Mr Kim's ("Johnson's") relationship with Mr Comer, Mrs Comer denied they fell out when Mr Comer owed money to Mr Kim but that it was a problem with a company, and that she knew Mr Kim was owed money. She stated she could not remember any details as once the contract was signed she had no further involvement. 4. Mrs Comer was cross-examined at some length in relation to the missing "scope of works" or "scopes of works": she stated that Mr Park would prepare these, that she would check them, before the contract was signed, and that the scope of works was then clipped to the contract, by her, for signing. The applicants called for those scopes of work. The reply was that they could not be produced because during a move, water got into the container in which the documents were being moved. Mrs Comer then agreed that these documents had originally been sent by email but that she still could not produce them, because at one stage Mr Comer, needing to free up space on his hard drive, had deleted these emails. Asked if these records were backed up, Mrs Comer said she can only do emails.
In re-examination, asked if the scopes of work were attached to the contracts, Mrs Comer firmly confirmed they were.
Mr Comer was cross-examined on his statement following a lengthy adjournment. 1. Mr Comer denied he was holding himself out to be the marketing manager of an unlicensed builder. Mr Comer stated he could not read certain documents put before him because of problems with his eyes (and was about to give details of an appointment he had made in that regard). He claimed that Mr Park did run a national company - a painting company. He denied presenting Mr Park to the applicants as a builder who had done work for him for decades, but agreed he also introduced an engineer and an architect, and two people from the window manufacturer. 2. Mr Comer initially denied receiving any plans but was shown "RN3" and after at first stating that he could not read them, agreed he had received them from the applicants. Mr Comer firmly disagreed that he provided the quotation of $155,000.00, or perhaps rather that he had worked that quotation out himself, stating that it was done by Mr Park. He also claimed that Mr Park actually advised the applicants of that amount. 3. Mr Comer agreed he brought the contracts to the applicants "with Charlie" to the applicants' house. He insisted he was the sales and marketing manager at that time and that Mr Kim was wrong when he gave evidence to the contrary. Asked whether he could provide any documents showing he was employed by Mr Kim, Mr Comer stated that he was not employed by Mr Kim but was a subcontractor. 4. In relation to the contracts, Mr Comer stated that he was not aware of the requirements for building contracts set out in the Home Building Act, rather he received the contracts from the builder (in this case S & J Constructions) together with a scope of works. In relation to not providing home owners warranty insurance, Mr Comer stated that this was at the owners' request. He agrees that for works over $20,000.00 such insurance was required, but denied it was his suggestion that the contracts be split. 5. In relation to his previous experience, Mr Comer denied it was not true he had ever worked for Meriton. When reminded of a notice to produce employment records or employment contracts, Mr Comer asked: "Why would I do that? What does that have to do with this matter?" He agreed he objected to providing these documents and when asked why, said: "Why should I?" Later, Mr Comer stated: "When I was in Meriton I was a salesman for Harry". 6. Mr Comer agreed he had been paid a total of $50,000.00 by the homeowners. He trenchantly denied he had stated to the owners that he would be available at all hours ("rubbish!") and denied he had ever been involved in construction. 7. This led to a number of questions in relation to a company called "L & R Heritage Roofing", a company providing roof renovation services, of which Mr Comer was a director, and, it appears from his own statements, the prime mover. Mr Comer continued to assert that the work involved was "roof restoration", not construction. 8. There followed questions in relation to alleged complaints against L & R Heritage Roofing, which involved the Office of Fair Trading, the former Minister for Fair Trading Mr John Watkins and negative publicity about those complaints. Mr Comer, not in answer to any question, gave a very lengthy, animated and rather lurid account of this incident, which resulted, he said, in being forced by Fair Trading to close this business down, despite the complete absence of any complaints. 9. Mr Comer also firmly denied any misrepresentations on his part and alleged that Mr Kim and Mr Park were lying in their evidence. 10. Mr Comer stated in relation to the Credit Memos that he just passed them on after they were prepared by Mr Park and checked by Mrs Comer. He denied looking at the documents as this "passing on" was done by Mrs Comer as he, Mr Comer, does not use the computer. 11. Mr Comer agreed that neither the kitchen nor the windows had been delivered.
Mr Comer was asked some questions in re-examination which do not need to be summarised here.

Applicants' Submissions

The applicants submit that there are two separate causes of action in this application: one pursuant to the Australian Consumer Law, and one pursuant to the Home Building Act 1989.
First, Mr Comer breached s 18 of the Australian Consumer Law: 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.
As it was stated in the Amended Points of Claim, the factual basis of this cause of action is as follows: 1. Comer's representations that he was a sales representative for S & J Constructions were misleading and deceptive as defined by s 18 Australian Consumer Law as he was not in fact a sales representative for that entity at the time he made the representations. 2. Comer's representations that he had authority to enter into contracts on behalf of S & J Constructions was misleading and deceptive as defined by s18 Australian Consumer Law as he had no such authority at the time he made the representations. 3. Comer's representations that he was able to organise the works, manage the works and ensure the quality of the works was misleading and deceptive as defined by Australian Consumer Law, as Comer was not in fact a builder with a licence to carry out those works. 4. The contracts provided to the homeowners by Comer were misleading and deceptive as they represented that the contracts were from S & J Constructions. They were not.
Secondly, Mr Comer breached several sections of the Home Building Act 1989: 4 Unlicensed contracting (1) A person must not contract to do: (a) any residential building work, or (b) any specialist work, except as or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work. … 5 Seeking work by or for unlicensed person (1) An individual, a member of a partnership, an officer of a corporation or a corporation must not represent that the individual, partnership or corporation is prepared to do: (a) any residential building work, or (b) any specialist work, if the individual, partnership or corporation is not the holder of a contractor licence authorising its holder to contract to do that work. (2) A person must not represent that an individual, partnership or corporation is prepared to do: (a) any residential building work, or (b) any specialist work, if the person knows that the individual, partnership or corporation is not the holder of a contractor licence authorising its holder to contract to do that work. 7 Form of contracts (other than small jobs) Note. Section 7AAA applies to contracts for small jobs. (1A) This section applies to a contract only if the contract price exceeds the prescribed amount or (if the contract price is not known) the reasonable market cost of the labour and materials involved exceeds the prescribed amount. The prescribed amount is the amount prescribed by the regulations for the purposes of this section and is inclusive of GST. (1) A contract must be in writing and be dated and signed by or on behalf of each of the parties to it. (2) A contract must contain: (a) the names of the parties, including the name of the holder of the contractor licence shown on the contractor licence, and (b) the number of the contractor licence, and (c) a sufficient description of the work to which the contract relates, and (d) any plans and specifications for the work, and (e) the contract price if known, and (f) any statutory warranties applicable to the work, and (g) in the case of a contract to do residential building work - a conspicuous statement setting out the cooling-off period that applies to the contract because of section 7BA, and (h) in the case of a contract to do residential building work (other than a construction contract to which the Building and Construction Industry Security of Payment Act 1999 applies) - details of any progress payments payable under the contract, and (i) in the case of a contract to do residential building work - a statement that the contract may be terminated in the circumstances provided by the general law and that this does not prevent the parties agreeing to additional circumstances in which the contract may be terminated, and (j) any other matter prescribed by the regulations for inclusion in the contract. (3) The contract must comply with any requirements of the regulations. … (6) A contract must not include in the contract the name of any person other than the holder of a contractor licence as, or so it may reasonably be mistaken to be, the holder's name. … 8 Maximum deposit for residential building work (1) The maximum amount of a deposit for residential building work is 10% of the contract price. A deposit for residential building work is a payment on account before work is commenced under a contract to do residential building work. (2) A person must not: (a) demand or receive payment of a deposit for residential building work if the amount of the payment exceeds the maximum imposed by this section, or (b) enter into a contract under which the person is entitled to demand or receive payment of a deposit for residential building work if the amount of the payment exceeds the maximum imposed by this section. Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case. … 92 Contract work must be insured (1) A person must not do residential building work under a contract unless: (a) a contract of insurance that complies with this Act is in force in relation to that work in the name under which the person contracted to do the work, and (b) a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, has been provided to the other party (or one of the other parties) to the contract. Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (2) A person must not demand or receive a payment under a contract for residential building work (whether as a deposit or other payment and whether or not work under the contract has commenced) from any other party to the contract unless: (a) a contract of insurance that complies with this Act is in force in relation to that work in the name under which the person contracted to do the work, and (b) a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, has been provided to the other party (or one of the other parties) to the contract. Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (2A) An individual who is convicted of a second or subsequent offence under subsection (1) or (2) is liable to a penalty not exceeding 500 penalty units or imprisonment for a term not exceeding 12 months, or both. (3) This section does not apply if the contract price does not exceed the amount prescribed by the regulations for the purposes of this section or (if the contract price is not known) the reasonable market cost of the labour and materials involved does not exceed that amount. (4) If the same parties enter into two or more contracts to carry out work in stages, the contract price for the purposes of subsection (3) is taken to be the sum of the contract prices under each of the contracts. (5) A contract of insurance that is in force in compliance with this section in relation to residential building work (the original work) done by a person extends to any residential building work done by the person by way of rectification of the original work. Note. Accordingly, this section does not require a separate contract of insurance in relation to the rectification work. (6) To avoid doubt, this section extends to residential building work that is also owner-builder work (when the work is done under a contract between the person who contracts to do the work and the owner-builder).
The factual basis of this cause of action as set out in the Amended Points of Claim is: 62 In breach of s 5 of the Act, Comer sought work for an entity, which not licensed to carry out work requiring home warranty insurance 63 Comer breached s 4 of the Act in entering into a contract with the homeowners on behalf of an entity who was not licensed to carry out the work. 64 In the alternative Comer entered into a contract with the homeowners as an unlicensed contractor. 65 Comer provided 3 separate contracts to the homeowners, which did not comply with the statutory requirements of section 7. 66 Comer breached s 92 of the Act in not obtaining insurance for the works. 67 The works carried out are defective and require rectification.
As a result of these breaches, the applicants claim the following provisions of the Home Building Act apply: 10 Enforceability of contracts and other rights (1) A person who contracts to do any residential building work, or any specialist work, and who so contracts: (a) in contravention of section 4 (Unlicensed contracting), or (b) under a contract to which the requirements of section 7 apply that is not in writing or that does not have sufficient description of the work to which it relates (not being a contract entered into in the circumstances described in section 6 (2)), or (c) in contravention of any other provision of this Act or the regulations that is prescribed for the purposes of this paragraph, is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, and the contract is unenforceable by the person who contracted to do the work. However, the person is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person. (2), (3) (Repealed) (4) This section does not affect the liability of the person for an offence against a provision of or made under this or any other Act. 94 Effect of failure to insure residential building work (1) If a contract of insurance required by section 92 is not in force, in the name of the person who contracted to do the work, in relation to any residential building work done under a contract (the uninsured work), the contractor who did the work: (a) is not entitled to damages, or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, in relation to that work, and (b) is not entitled to recover money in respect of that work under any other right of action (including a quantum meruit). (1A) Despite section 92 (2) and subsection (1), if a court or tribunal considers it just and equitable, the contractor, despite the absence of the required contract of insurance, is entitled to recover money in respect of that work on a quantum meruit basis. (1B) A contractor who applies to a court or tribunal for a remedy under this section, or who is awarded money under this section, is not guilty of an offence under section 92 (2) by virtue only of that fact. (1C) Without limiting the factors that a court or tribunal may consider in deciding what is just and equitable under subsection (1A): (a) in relation to any contract - the court or tribunal may have regard to the impact on the resale price of the property if no contract of insurance is provided, and (b) in relation only to a contract entered into before 30 July 1999 - the court or tribunal is not to be limited by the fact that the required contract of insurance was not obtained until after the date of the contract. (2) However, the contractor remains liable for damages and subject to any other remedy in respect of any breach of the contract committed by the contractor. (3) Residential building work that is uninsured work at the time the work is done ceases to be uninsured work for the purposes of this section if the required contract of insurance for the work is subsequently obtained. (4) If a person commenced residential building work before 30 July 1999 and entered into a contract of insurance that complies with this Act in relation to that work after the contract for the residential building work was entered into, that contract of insurance is, for the purposes of this section or any previous version of this section, taken to have been in force in relation to the residential building work done under the contract for the residential building work whether that work was done before or after the contract of insurance was entered into. Note. If a contract of insurance is in force in relation to part of the residential building work, this section applies only in relation to the part of the work that is not insured.
The result is, submit the applicants, that they are entitled to full restitution of all amounts paid to the respondent, as those payments were made as the result of a mistake of fact or law.
The applicants support that submission by referring to the evidence in relation to the fact that no person involved in these works, or claimed to be involved in the works, possessed the appropriate licence.
The applicants also assert that it was Mr Comer who either advised that the contracts be split so as to each be less than $20,000.00 and that the applicants' evidence should be preferred in that regard. The applicants point to the evidence given by Mr Cromer in relation to the suggestion that his roofing restoration company was subject to many serious complaints, to the effect that he employed 80 people in that enterprise. It was suggested that it was not possible that Mr Cromer had no knowledge of construction, and was not aware of the statutory requirements set out above.
The applicants submit that in the circumstances of this project, as described in detail above, it was Mr Comer who signed all the contracts and made all the arrangements, including introducing various trades and professions to the applicants. In that sense, it is irrelevant who actually did the work: it was Mr Cromer who was the other party to the contract.
In relation to the Australian Consumer Law claim, the applicants submit that they are entitled to damages pursuant to s 236 of the ACL: 236 Actions for damages (1) If: (a) a person (the claimant) suffers loss or damage because of the conduct of another person; and (b) the conduct contravened a provision of Chapter 2 or 3; the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention. (2) An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.
The applicants also submit in the alternative that they are entitled at least to the reimbursement of $24,000.00 paid as deposits for a kitchen and windows which were not delivered.
The applicants also submit that in any event, they are entitled to payment of the sum of $2,040.00 on the basis of Mr Smith's report in relation to defective works, this evidence not being challenged. (In that regard, I note that Mr Smith was not required for cross-examination.)
The applicants also submit that this would be a suitable matter to be referred for possible action by the Director General.
Finally, the applicants foreshadow an application for costs.

Respondent's Submissions

The respondent submits that the claim should have been brought against Mr Park or Mr Kim, as the real builders in this project. In relation to Mr Kim, it was submitted that his evidence should be approached with caution, as he was originally a party to the claim and was then removed, but only to remain as a witness for the applicants.
It was submitted that Mr Park was the builder: he costed the project, he organised and instructed the subcontractors and he paid the subcontractors (from money he must have received from Mr Comer) - all consistent with Mr Park being the builder.
Mr Comer had acted in good faith in believing that Mr Park was properly licenced and that he, Mr Comer, was acting as an agent.
I relation to Mr Kim, it was submitted that Mr Comer had previously found customers for him when Mr Kim had done the actual work. Mr Kim had given evidence that he was happy for Mr Comer to use the S & J business card following the Bondi Junction meeting and further, that if Mr Kim was not aware of Mr Comer's actions in this instance, that must be the fault of Mr Park who was in all ways acting as the middleman.
It was submitted that the applicants had received a substantial benefit with only a very minor defects claim, and regard must be had to the extensive list of items completed, conceded by Ms Ng in cross-examination.
It was suggested that the windows had been paid for and that although the project was not completed, the applicants could have requested a refund or in fact the windows could have been installed.
The applicants should not be viewed as vulnerable and trusting: they both hold responsible commercial positions and they chose to "charge into" this arrangement.
Mr Comer had never represented himself as the builder.

Applicants in Reply

The applicants noted there was no privity of contract between the applicants, Mr Park or the kitchen or windows manufacturers. The applicants are entitled to a complete refund of all moneys paid for those items.
The applicants deny that Mr Comer is the agent in this arrangement, and that he can claim to have acted in good faith. Mr Kim did not even know about the works, whereas in all prior arrangements between Mr Kim and Mr Comer, Mr Kim had always insisted that he do the works.

Consideration and Determination

I consider first the two causes of action propounded by the applicants.
Clause 3 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 states as follows: 3 Functions allocated to Division (1) The functions of the Tribunal in relation to the following legislation are allocated to the Division: … Australian Consumer Law (NSW)
It is also necessary to determine whether the applicants have standing under the Australian Consumer Law to make an application under that legislation. Section 3 of the ACL states: 3 Meaning of consumer Acquiring goods as a consumer (1) A person is taken to have acquired particular goods as a consumer if, and only if: (a) the amount paid or payable for the goods, as worked out under subsections (4) to (9), did not exceed: 1. $40,000; or 2. if a greater amount is prescribed for the purposes of this paragraph - that greater amount; or (b) the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption; or (c) the goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads. … Acquiring services as a consumer (3) A person is taken to have acquired particular services as a consumer if, and only if: (a) the amount paid or payable for the services, as worked out under subsections (4) to (9), did not exceed: (i) $40,000; or (ii) if a greater amount is prescribed for the purposes of subsection (1)(a) - that greater amount; or (b) the services were of a kind ordinarily acquired for personal, domestic or household use or consumption. In relation to the definition of services, the ACL states: 2 Definitions (1) In this Schedule: … services includes: (a) any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and (b) without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under: (i) a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or (ii) a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or (iii) a contract for or in relation to the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; or (iv) a contract of insurance; or (v) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or (vi) any contract for or in relation to the lending of money; but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.
Before considering how these sections may apply to this application, it is necessary to consider whether this Tribunal has jurisdiction at all to hear and determine applications pursuant to the ACL, despite Schedule 4 of the CAT Act. That is because of s 30 of the Fair Trading Act 1987 (FT Act): 30 Meaning of generic terms in Australian Consumer Law for purposes of this jurisdiction (1) In the Australian Consumer Law (NSW): regulator means the Director-General. (2) For the purposes of the application of the Australian Consumer Law (NSW), court means, unless otherwise expressly provided by this Act: (a) the Local Court, or (b) the District Court, or (c) the Supreme Court. (3) In the following provisions of the Australian Consumer Law (NSW), court means the Supreme Court: (a) section 218, (b) Division 2 of Part 5-2, (c) Division 4 of Part 5-2, (d) sections 246, 247, 248 and 250. (4) In Part 2-3 of the Australian Consumer Law (NSW), court includes the Tribunal. (5) Subsections (2)-(4) are subject to any jurisdictional limits on the court concerned or the Tribunal imposed by any other Act Part 2-3 of the ACL refers to "Unfair Contract Terms" in Chapter 2 of the ACL. This claim is not in relation to that part. However, s 74(3) of the FT Act has this to say: 74 Actions for damages and compensation orders … (3) The Tribunal may decide the matter of whether a person has suffered loss or damage because of the conduct of another person that constitutes a local contravention or a contravention of Chapter 2 or 3 of the ACL if that matter arises in connection with another matter the subject of proceedings in the Tribunal. In deciding the matter of loss or damage, the Tribunal may award such sum, and make such ancillary orders, as it thinks fit.
This section was considered by the Appeal Panel in Robinson Murray v Bargshoon and Anr [2015] NSWCATAP 19. The Appeal Panel analysed the issue, correctly in my respectful opinion, at paragraphs [41] - [51] of that decision: 41. Another possible way that the claim could have been put against the first respondent was on the basis that the first respondent had engaged in misleading and deceptive conduct in contravention of section 18 of the ACL, found in Chapter 2 of the ACL. 42. The ACL is federal legislation and claims brought pursuant to the provisions of the ACL for orders under Part 5 of the ACL must be brought in a court. The Tribunal is not a court for the purpose of federal legislation: see Trust Company of Australia v Skiwing (2006) 66 NSWLR 77 and Australian Executor Trustees Ltd v Steak Plains Olive Farm Pty Ltd [2014] NSWCATCD 143. 43. However, the ACL also applies as a law of New South Wales pursuant to section 28 of the Fair Trading Act, 1987 (FT Act). In this regard the ACL is referred to as the Australian Consumer Law (NSW) 44. While the Tribunal is not a court for the purpose of making orders under Part 5 of the Australian Consumer Law (NSW): see section 30 of the FT Act, section 74 (3) of the FT Act provides as follows: … 45. Therefore, the issue is whether or not the present claim is a matter that "arises in connection with another matter the subject of proceedings in the Tribunal" and whether the FT Act otherwise grants jurisdiction to the Tribunal to determine claims by a consumer against a person who is not a "supplier" within the meaning of the CC Act. 46. In our view section 74(3) does not grant jurisdiction to the Tribunal to determine a matter of whether a party has suffered loss or damage suffered because of the contravention of Chapters 2 and 3 of the ACL unless: the person seeking to make that claim was otherwise entitled to bring proceedings in the Tribunal against the other party in respect of another matter for which the Tribunal has jurisdiction; and the contravening conduct arises in connection with the proceedings before the Tribunal. 47. In broad terms jurisdiction arises where: There is an entitlement to make an application to the Tribunal; In respect of defined disputes; and The Tribunal has power to make orders relevant and/or necessary to the adjudication and disposition of the dispute (whether by monetary award or otherwise) 48. The dispute for which jurisdiction is granted can be defined in various ways including by reference to particular parties, particular transactions, particular types of claims or a combination of these factors. The CC Act and the Home Building Act, 1989 provide examples of how the legislature has provided jurisdiction to the Tribunal. 49. In addition, disputes which might be determined by the Tribunal can be defined by reference to other disputes which have a connection with a dispute the Tribunal has jurisdiction to determine. 50. Jurisdiction is not divorced from the powers of the Tribunal, and the legislative scheme regulating the making of an application. In Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 , at page 561, Toohey J said, in construing the powers of the Federal Court to grant an amendment: "but the reasoning blurs notions of jurisdiction and power; importantly, it fails to accord due weight to limitation provisions expressed in the Act itself. "Jurisdiction", it has been said, means "the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way or its decision". In the exercise of its jurisdiction, a court has powers expressly or impliedly conferred by the legislation governing it. …". That authority is given to the Tribunal by the legislation enabling an application to be made, defining the claim for which an application can be made and giving power to the Tribunal to make orders to resolve the controversy. 51. Section 74(3) seeks to provide a connection between claims under the ACL and claims the subject of proceedings in the Tribunal by use of the expression "arises in connection with" so as to allow the Tribunal to decide a relevant matter under the ACL. The expression "arises in connection with" has a wide meaning.
In my opinion, provided the applicants are entitled to bring proceedings in the Tribunal against the other party in respect of another matter for which the Tribunal has jurisdiction and the contravening conduct arises in connection with the proceedings before the Tribunal in relation to that other matter, the Tribunal has jurisdiction to hear and determine the claim pursuant to the ACL.
It is not the subject of any dispute in these proceedings that the applicants are entitled to bring their claim pursuant to the HB Act. Similarly, it is not the subject of any dispute in these proceedings that those proceedings relate to residential building works. In my view, on the basis of the allegations and evidence set out above, there is no doubt the alleged contravening conduct arises in connection with the Home Building proceedings.
However, given the particular facts in these proceedings, there is an issue as to the appropriate nature of any remedy, or whether there can be more than one remedy. In my view, that depends on my findings in relation to which, if any, of Mr Park, Mr Kim and Mr Comer are to be regarded as the "builder". In order to make those findings, it is necessary to return to the facts, and the persons, before me.
I was most impressed with Ms Ng as a competent and shrewd person, although I do not necessarily accept all her evidence. This is because, having decided that she is a competent and shrewd person, I cannot believe she was taken in by Mr Comer to quite the extent she alleges. Assuming, without deciding for the moment, that Mr Comer did engage in misleading and deceptive conduct and misrepresented the true state of affairs, what did Ms Ng, and Mr Lauer, have before them?
Mr Comer turned up in answer to an inquiry on a web site, HI Pages. He presented, according to Ms Ng, as being obliging and positive, no matter what the issue was. He would organise everything, he would be available at all hours, he was a sales agent for one company and then for another company, he provided three separate contracts (2 to begin with), he wanted all payments to be in cash or cash cheques (but none of them to be $10,000 or more), he assured Ms Ng that the insurance situation was all in order (without providing any documentation), he stated he had other business interests, including one in relation to socks and he wondered whether Mr Lauer would be able to assist in selling these socks to Woolworths, another in relation to timber in Indonesia and would the applicants be interested in investing in that. Add to that Mr Comer's personality and manner, which is striking to say the least - "colourful", as suggested by Mr Zikmann. Place all those factors against Ms Ng's background of education and experience and I am unable to believe she noticed nothing to suggest that perhaps this "builder" might require a little easy investigation, such as checking his licence, checking the insurance, obtaining proper paperwork in relation to approval of the works by the relevant certifier (if required) and an appropriate engineer (if required). It simply defies belief that Ms Ng placed her trust in the respondent despite all these factors.
I find that the applicants sought and found a person who would have the relevant works carried out with a minimum of formality and the avoidance of any expense that could be avoided. I find also that the applicants did not wish to concern themselves with niceties such as insurance and licences.
However, at the same time, I have no doubt that Mr Comer did misrepresent his position, qualifications and experience. He did so in the witness box. Contrary to his oral evidence, I am satisfied that Mr Comer had previously worked for Mr Kim and Mr Park (but not at the same time), in relation to finding work for them to do in their capacity as builder or painter. The evidence for this in relation to Mr Park is not clear, but that is not true for his relationship with Mr Kim. The use of S & J letterhead and the two business cards for S & J and Satisall derived from this prior relationship.
Mr Comer, in my opinion, knew what he was about in making use of these prior relationships with Mr Park and Mr Kim. His experience with the L & R Heritage Roofing company makes that obvious. According to him, and I accept this evidence, this company was a thriving business employing many people and involved in many projects. It seemed clear to me, watching Mr Comer and carefully listening to his answers, that he was well aware of Home Building Act requirements in relation to licences and contracts and particularly in relation to avoiding obtaining home owners warranty insurance. His evidence was carefully tailored to avoid making any concessions in that area but his general familiarity was plain.
I find that Mr Comer was unconcerned whether he used a spurious current business relationship with Mr Park and Satisall, or Mr Kim and S & J, so long as he obtained the signatures of Mr Lauer and Ms Ng on his "contracts".
These contracts, as demonstrated comprehensively by the applicants, did not comply with the HB Act. I find this was a deliberately informal arrangement dressed up, a little, to look like a real building contract. As noted above, I find that the applicants were content with approach. I reject the submission and evidence of the applicants that had they known the true state of affairs they would not have signed the contracts, at least in the sense that in my view the applicants made no attempt to satisfy themselves of the true state of affairs.
I find that there was no actual, qualified and licensed builder on this project. I find Mr Kim had nothing to do with the actual works and that he was not aware that his company name (or an approximation of his company name) and his licence number were being used in the way they were. I am satisfied that all this was known to Mr Comer.
Mr Park was clearly involved with the project, but not, in my opinion, as the builder. I am satisfied that he was under the direction of Mr Comer. Although Mr Park may have, and on balance probably did, produce the "Credit Memos" and a tax invoice, that also was under the direction of Mr Comer and with the assistance of Mrs Comer. I am satisfied that Mr Park did organise the trades to work on the project and passed on amounts of money in payment, having received the funds from Mr Comer. However, I am otherwise unimpressed with Mr Park as a witness. His readiness to change his evidence in circumstances in which it appeared to me that he had no difficulty understanding the questions the first time, suggests and I find that he was willing to say, on occasion, anything which would help him avoid responsibility. The evidence in support of my findings in relation to organising trades and making payments is found in the documentary evidence provided by the applicants and to some extent supported by the applicants.
In the absence of any supporting evidence from Mr Comer, I do not accept their "my dog ate the homework" defence in relation to missing copies of business documents and emails. Both these witnesses claim to be running a variety of businesses and to have done so for some time. I do not accept their excuses for the lack of supporting documentation and of failing even rudimentary backup and preservation of business records.
Mr Comer's blustering denials that he made certain misrepresentations to the applicants were not persuasive. Taking his evidence as a whole, including his descriptions of L & R Heritage Roofing, his inability, and refusal, to provide any documentary support for his alleged previous experience, and the readiness with which he relied on, in my opinion, spurious business cards and invalid contractual documents, I am satisfied that the applicants have demonstrated Mr Comer breached s 18 of the ACL.
I am satisfied, in the absence of any finding that Mr Kim was involved in this project, or rather my finding that Mr Kim was not involved in the project, leads to the conclusion that Mr Comer was the moving party in producing and signing the three "contracts" and that he is therefore the "builder" for the purpose of these proceedings, at least in a contractual sense, if otherwise in breach of every relevant section of the HB Act.
In that sense, Mr Comer, as the other party to the contracts, is responsible for the building works, even if he did not personally perform any of the physical building tasks. Of course, that is not at all unusual in home building claims. That is the sense in which the applicants submitted that it was "irrelevant" who actually did the building work and in that sense I accept the submission.
Mrs Comer's evidence was, in my view, carefully designed to avoid any responsibility on her behalf or on her husband's behalf. She asserted she attached the scopes of work prepared by Mr Park to each of the contracts but cannot produce a copy of any one of the scope of works. I have already indicated I do not accept the convenient excuses for being unable to do so. Her evidence was characterised by a readiness to answer forcefully and positively in relation to any issue designed to relieve her or Mr Comer from any responsibility, then to immediately deny any further involvement, knowledge or understanding of the process in answer to follow up cross examination. Examples of this are given above in summarising the evidence.
I now turn to consider whether the applicants have succeeded in proving their entitlement to the orders sought.
First, I am satisfied that the applicants paid a total of $24,000 to Mr Comer for deposits for the kitchen and windows: this is not really disputed by the respondent. I find that the applicants have no contractual arrangement with either manufacturer and therefore no reason to approach either manufacturer for a refund of any amount paid to either. The evidence in relation to what may have actually been paid is inconclusive, but that is not an issue for the applicants. I order that Mr Comer pay the sum of $24,000 to the applicants within 28 days of the date of these orders.
In the absence of any challenge to the expert evidence, and indeed given what appeared to me to be a concession that the amount of $2,040 should be paid to the applicants in regard to defective works, I order that amount be paid by Mr Comer also within 28 days.
I find that works to the value of $26,000.00 have been completed and I accept the submission of the respondent that the applicants will be unjustly enriched if an order is made that those payments be returned. I am not satisfied the applicants have suffered any damage (apart from the very minor defects claim already accounted for) in that regard. Geoffrey Meadows Senior Member Civil and Administrative Tribunal of New South Wales 25 August 2015

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 October 2015

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Judgment (9 paragraphs)

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