Croll v Form and Colour Pty Ltd; Form and Colour Pty Ltd v Croll [2024] NSWCATCD 31

Croll v Form and Colour Pty Ltd; Form and Colour Pty Ltd v Croll [2024] NSWCATCD 31

The Tribunal found that Form and Colour did not engage in misleading or deceptive conduct as the statements about costs and fees were expressed as estimates with adequate caveats and no guarantee the project would be within $200,000. There was no breach of the consumer guarantee of due care and skill since there was no evidence Form and Colour's services were not performed with appropriate skill. The contract did not entitle Form and Colour to a cancellation fee, as that term was void for uncertainty. There was also insufficient evidence to establish that additional fees (beyond the design deposit) were owing. Accordingly, Ms Croll was not liable for the two invoices (cancellation fee and...

Parties
Applicant (hb 23/34272), Respondent (hb 23/34269): Felicity Croll; Respondent (hb 23/34272), Applicant (hb 23/34269): Form and Colour Pty Ltd
Jurisdiction
Australia
Judgment Date
08 March 2024
Procedural Posture
Civil (consumer and Commercial Division) / Final Decision After Rehearing
Outcome
Applicant succeeds in obtaining declaratory relief; otherwise, both applications are dismissed. Costs reserved.
Legal Topics
Misleading or Deceptive Conduct, Consumer Guarantees, Due Care and Skill, Termination of Contract, Repudiation of Contract, Uncertainty, Severance of Void Term
Consumer Law Contracts Misleading or Deceptive Conduct Consumer Guarantees Due Care and Skill Termination of Contract Repudiation of Contract Uncertainty +1 more

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Parties

Felicity Croll

Applicant (hb 23/34272), Respondent (hb 23/34269)

Form and Colour Pty Ltd

Respondent (hb 23/34272), Applicant (hb 23/34269)

Procedural Posture

Civil (consumer and Commercial Division) / Final Decision After Rehearing

Legal Issues

  1. 1 Whether Form and Colour engaged in misleading or deceptive conduct under s 18 of the ACL
  2. 2 Whether Form and Colour breached consumer guarantees (due care and skill) under s 60 ACL
  3. 3 Whether Form and Colour repudiated or breached the contract

Ratio Decidendi

The Tribunal found that Form and Colour did not engage in misleading or deceptive conduct as the statements about costs and fees were expressed as estimates with adequate caveats and no guarantee the project would be within $200,000. There was no breach of the consumer guarantee of due care and skill since there was no evidence Form and Colour's services were not performed with appropriate skill. The contract did not entitle Form and Colour to a cancellation fee, as that term was void for uncertainty. There was also insufficient evidence to establish that additional fees (beyond the design deposit) were owing. Accordingly, Ms Croll was not liable for the two invoices (cancellation fee and...

Court Disposition

Applicant succeeds in obtaining declaratory relief; otherwise, both applications are dismissed. Costs reserved.

Orders

  • Declare that the sums of $3,685 and $6,922.30, the subject of invoices issued by the respondent on or about 22 April, are not owing by the applicant to the respondent in proceedings HB 23/34272.
  • Application otherwise dismissed in HB 23/34272.