Gaskell and Bourke v Northshore Homes Pty Ltd and Nazha [2021] NSWCATCD 33

Gaskell and Bourke v Northshore Homes Pty Ltd and Nazha [2021] NSWCATCD 33

The Tribunal had jurisdiction under s74(3) of the Fair Trading Act 1987 (NSW) to award the claimed sum as the statutory cap in s79S did not apply. The director did not engage in misleading or deceptive conduct in relation to the website representations. However, the engineering representation that the director had the right to terminate the owners' engineer was misleading and deceptive and led to compensable loss, as the rectification costs would likely have been avoided had the owners' engineer continued involvement. The prior insurance payout to the applicants did not require reduction of the amount awarded for rectification costs.

Jurisdiction
Australia
Judgment Date
07 June 2021
Procedural Posture
Civil / Principal Judgment
Outcome
Application by Gaskell and Bourke allowed in part; award of damages for misleading engineering representation
Legal Topics
['misleading and Deceptive Conduct' "director's Liability" 'jurisdiction Under Fair Trading Act' 'australian Consumer Law S18' 'remedies for Misleading Conduct']
['building and Construction' 'consumer Law'] ['misleading and Deceptive Conduct' "director's Liability" 'jurisdiction Under Fair Trading Act' 'australian Consumer Law S18' 'remedies for Misleading Conduct']

Case Brief

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Procedural Posture

Civil / Principal Judgment

Legal Issues

  1. 1 ['Whether Sami Nazha engaged in misleading or deceptive conduct in breach of s18 of the ACL' 'Whether Tribunal has jurisdiction to award the claimed sum under s74(3) of the Fair Trading Act 1987 (NSW)' 'Whether there is a statutory limit to the Tribunal’s award in these proceedings' 'Whether the director was personally liable for website and engineering representations' 'Whether applicants are entitled to rectification costs given an insurance payout']

Ratio Decidendi

The Tribunal had jurisdiction under s74(3) of the Fair Trading Act 1987 (NSW) to award the claimed sum as the statutory cap in s79S did not apply. The director did not engage in misleading or deceptive conduct in relation to the website representations. However, the engineering representation that the director had the right to terminate the owners' engineer was misleading and deceptive and led to compensable loss, as the rectification costs would likely have been avoided had the owners' engineer continued involvement. The prior insurance payout to the applicants did not require reduction of the amount awarded for rectification costs.

Court Disposition

Application by Gaskell and Bourke allowed in part; award of damages for misleading engineering representation

Orders

  • ['Sami Nazha must pay Aaron Gaskell and Serena Bourke the sum of $221,344.00 immediately.' 'Any costs application must be lodged within 14 days, with procedural directions for filing and submission of supporting documents and responses.' 'Parties must indicate consent for determination of costs application on...