CBEM HOLDINGS PTY LTD v SUNSHINE EAST PTY LTD

2025/00156488

TRADE PRACTICES – in 2019, Chu Lin Fan, a director of the respondent, purchased land at 506 Galston Road, Dural, for the purpose of building a substantial residence – Mr Fan engaged Denton Homes Pty Limited to design a residence, and subsequently obtained development approval on 18 August 2022 – in April 2021, the respondent and Mr Fan entered into an agreement with ASY Construction Pty Limited (ASY) to perform the role of construction manager for the construction of the proposed residence – in December 2021, by ASY, the respondent and Mr Fan entered into a trade contract with the appellant for the performance of extensive civil and stormwater works (Trade Contract), which were performed between March 2022 and 1 November 2022 – during the course of works under the Trade Contract, the appellant submitted four payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA), totalling $985,859.48 – ASY, to whom the claims were submitted, approved payment of the first three claims (which were then paid by the respondent or Mr Fan), though the fourth claim, submitted on 27 October 2022, in the sum of $420,952.39, was neither approved nor paid – the appellant successfully sued the respondent and Mr Fan for payment of the amount of the fourth progress claim – on 1 May 2023, the respondent and Mr Fan commenced the impugned proceedings seeking restitution of the amounts which they claimed had been overpaid to the appellant, and for damages under s 236 of the Competition and Consumer Act 2010 (Cth) (ACL) on the basis of alleged breaches of s 18 of the ACL, such representations said to have been constituted by the making of payment claims by the appellant for purportedly-completed works – in respect of the restitution claim, the primary judge found that the works the subject of the first three payment claims by the appellant were of less value than that which was actually represented in those claims, and that ASY was not qualified or experienced in quantity surveying or civil engineering to the extent necessary to determine properly those claims – in respect of the claims under the ACL, the primary judge first found that the appellant’s payment claims were in fact representations made in trade or commerce, and that they were misleading and deceptive and causative of loss – the primary judge entered judgment for the respondent in the sum of $452,961.44 - whether the primary judge erred in finding the appellant conceded it claimed for work it had not performed or was paid more than the value of the work performed – whether the primary judge erred in finding the payment claims issued by the appellant constituted representations – whether the primary judge erred in finding the actions of the appellant, and not ASY, were causative of the loss or damage suffered by the respondent – whether the primary judge erred in finding that payments made to appellant were caused by a mistake that the work claimed by the appellant had been actually performed – whether the primary judge erred with respect to the quantum of final relief.