The recent case of Jonval Builders Pty Ltd v Commissioner for Fair Trading  NSWCA 233 considered remedies for unconscionable conduct in a construction context.
The Commissioner for Fair Trading sought compensation for consumers who had purchased villas at a holiday park, because they had been mislead to believe that the contractual terms and planning requirements that limited occupation to 180 days per year would not be enforced. The consumers had intended to live in the villas permanently. The primary judge held that the conduct was misleading and deceptive, and unconscionable. Jonval appealed against the latter finding. The appeal was dismissed as the Court held that Jonval’s director had personally engaged in unconscionable conduct as he was the ‘controlling mind of the company’ and had either personally executed the contracts or knew of and endorsed the conduct of his company’s employees.
The Court awarded compensation at 85% of the cost of improvements in circumstances where the occupiers had only made improvements because of the representations regarding permanent occupation. This case demonstrates the repercussions of misleading and deceptive, and unconscionable conduct.