Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117

Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117

Although the Tribunal Member misstated the measure of damages by referring to restoring the Appellant to the position before the contract, the appeal failed because the claims pursued on appeal were not proved by sufficient probative evidence as to quantum or necessity. The difficulty-in-assessing-damages rule did not assist where the Appellant had not supplied readily available evidence. The procedural fairness complaint could not be resolved in the Appellant's favour because no transcript or sound recording was provided despite directions. The costs discretion had miscarried, but the Appeal Panel concluded there were no special circumstances warranting costs because the Appellant...

Jurisdiction
Australia
Judgment Date
24 May 2017
Procedural Posture
Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division Decision Concerning Breach of Contract and Damages / Appeal Panel Final Decision
Outcome
The appeal is dismissed
Legal Topics
['breach of Contract' 'damages' 'onus of Proof' 'procedural Fairness' 'special Circumstances for Costs' 'consumer Services Supplied With Due Care and Skill']
['contract Law' 'consumer Law' 'civil Procedure' 'costs'] ['breach of Contract' 'damages' 'onus of Proof' 'procedural Fairness' 'special Circumstances for Costs' 'consumer Services Supplied With Due Care and Skill']

Case Brief

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Procedural Posture

Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division Decision Concerning Breach of Contract and Damages / Appeal Panel Final Decision

Legal Issues

  1. 1 ['Whether the Tribunal Member applied the wrong measure of damages by considering what amount would put the Appellant in the position she was in before the contract was entered into rather than the position she would have been in had the breach not occurred.' 'Whether the Appellant proved the quantum of the remaining claimed losses for skip hire, kickboards, electrical appliance connection and reconnection, carpet cleaning, and new flooring.' 'Whether the rule that difficulty in assessing damages is not a bar to assessment applied where the Appellant had not produced sufficient probative evidence of quantum.' 'Whether the Appellant was denied natural justice or procedural fairness by not being able to make oral submissions before the Tribunal Member.' 'Whether there were special circumstances warranting an award of costs under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW).']

Ratio Decidendi

Although the Tribunal Member misstated the measure of damages by referring to restoring the Appellant to the position before the contract, the appeal failed because the claims pursued on appeal were not proved by sufficient probative evidence as to quantum or necessity. The difficulty-in-assessing-damages rule did not assist where the Appellant had not supplied readily available evidence. The procedural fairness complaint could not be resolved in the Appellant's favour because no transcript or sound recording was provided despite directions. The costs discretion had miscarried, but the Appeal Panel concluded there were no special circumstances warranting costs because the Appellant...

Court Disposition

The appeal is dismissed

Orders

  • ['Appeal dismissed.']