Larsen v Tastec Pty Ltd [2023] NSWCA 39

Larsen v Tastec Pty Ltd [2023] NSWCA 39

The Court held that the respondents engaged in misleading or deceptive conduct regarding the nature of the cladding material and that the Larsens relied on those representations when agreeing to the contractual variation. The primary judge erred in the assessment of reliance and loss, particularly by failing to focus on the point at which the variation was agreed. The appellants were entitled to have their claims under the Australian Consumer Law remitted for assessment of relief. Claims for breach of contract in relation to windows and doors failed. The contract was made by the Larsens as trustees of the superannuation fund, not in their personal capacity.

Parties
First Appellant: Derek Larsen as trustee for the Larsen Superannuation Fund (ABN 95 894 143 943); Second Appellant: Floyd Larsen as trustee for the Larsen Superannuation Fund (ABN 95 894 143 943); First Respondent: Tastec Pty Ltd (formerly Wonders Building Company Pty Limited) (ACN 051 516 682); Second Respondent: Stephen Sainsbury
Jurisdiction
Australia
Judgment Date
09 March 2023
Procedural Posture
Appeal / Court of Appeal Decision on Appeal From District Court of New South Wales
Outcome
Appeal allowed in part
Legal Topics
Misleading or Deceptive Conduct, Breach of Contract, Capacity of Contracting Parties, Damages, Australian Consumer Law, Express Contractual Terms, Defective Building Works
Consumer Law Contracts Misleading or Deceptive Conduct Breach of Contract Capacity of Contracting Parties Damages Australian Consumer Law Express Contractual Terms +1 more

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Parties

Derek Larsen as trustee for the Larsen Superannuation Fund (ABN 95 894 143 943)

First Appellant

Floyd Larsen as trustee for the Larsen Superannuation Fund (ABN 95 894 143 943)

Second Appellant

Tastec Pty Ltd (formerly Wonders Building Company Pty Limited) (ACN 051 516 682)

First Respondent

Stephen Sainsbury

Second Respondent

Procedural Posture

Appeal / Court of Appeal Decision on Appeal From District Court of New South Wales

Legal Issues

  1. 1 Whether appellants relied on misleading or deceptive representations by respondents in deciding to proceed with a contractual variation relating to building cladding
  2. 2 Whether the representations regarding the cladding material were misleading or deceptive
  3. 3 Whether the appellants contracted in their personal capacity or as trustees

Ratio Decidendi

The Court held that the respondents engaged in misleading or deceptive conduct regarding the nature of the cladding material and that the Larsens relied on those representations when agreeing to the contractual variation. The primary judge erred in the assessment of reliance and loss, particularly by failing to focus on the point at which the variation was agreed. The appellants were entitled to have their claims under the Australian Consumer Law remitted for assessment of relief. Claims for breach of contract in relation to windows and doors failed. The contract was made by the Larsens as trustees of the superannuation fund, not in their personal capacity.

Court Disposition

Appeal allowed in part

Orders

  • Set aside Order 1 of the District Court orders of 17 December 2021 and Order 4 of the District Court orders of 4 March 2022.
  • In lieu, dismiss the plaintiffs' claim for damages for breach of contract against the first defendant.