Bhatt v YTO Construction Pty Ltd

[2023] NSWCA 318

NSW Court of Appeal

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Interrogate

Catchwords

1. Building and Construction
2. › Security of payment
3. › Adjudication
4. › Adjudication application
5. › Representations made to adjudicator
6. › Whether conduct 'in trade or commerce' for purposes of Australian Consumer Law
7. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 17, 22
8. › Competition and Consumer Act 2010 (Cth), Sch 2, s 18
1. Consumer Law
2. › Misleading or deceptive conduct
3. › In trade or commerce
4. › Meaning of 'in trade or commerce'
5. › Whether representations in statutory dispute resolution process bear trading or commercial character
6. › Whether conduct which is incidental to trade or commerce is conduct 'in' trade or commerce
7. › Competition and Consumer Act 2010 (Cth), Sch 2, s 18

Quick Take

Misleading representations made in adjudication applications under the SOP Act cannot found a claim under s 18 of the ACL, as such conduct is not 'in trade or commerce'. Alternative remedies (such as fraud or setting aside the determination) must be pursued instead.