Mikhail v JJ Built This Pty Ltd [2021] NSWCATAP 159

Mikhail v JJ Built This Pty Ltd [2021] NSWCATAP 159

The appeal in HB 20/23978 was dismissed because the appellant did not identify any appealable error in the Tribunal's factual findings, and the text message relied on to refute denial of access was sent after termination and could not undo the prior breach. The challenge concerning Payment 6 also failed because the Tribunal had found that the deposit constituted Progress Payment 1 and the appellant did not demonstrate error in that conclusion. However, in HB 20/309824 the Tribunal erred in awarding the respondent the balance of the contract price as loss of bargain damages. Because the contract was terminated, the respondent would not incur the costs of completing Payments 7, 8 and 9...

Jurisdiction
Australia
Judgment Date
31 May 2021
Procedural Posture
Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division, Home Building Contract Proceedings / Appeal Panel Decision
Outcome
Appeal in proceedings HB 20/23978 dismissed; time to appeal in proceedings HB 20/309824 extended; appeal in proceedings HB 20/309824 upheld and remitted on the single issue of proper assessment of the respondent's damages.
Legal Topics
['home Building Contract' 'repudiation' 'termination' 'denial of Access to Building Site' 'progress Payments' 'debt' 'loss of Bargain Damages' 'expectation Damages' 'remittal' 'extension of Time to Appeal']
['building and Construction' 'contract Law' 'civil Procedure'] ['home Building Contract' 'repudiation' 'termination' 'denial of Access to Building Site' 'progress Payments' 'debt' 'loss of Bargain Damages' 'expectation Damages' 'remittal' 'extension of Time to Appeal']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division, Home Building Contract Proceedings / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred in finding that the appellant denied the respondent access to the site and thereby breached the contract.' "Whether the Tribunal erred in rejecting the appellant's contention that Progress Payment 6 was not owing because the payment schedule had been varied and the deposit credited against that payment." "Whether the Tribunal applied the correct measure of damages for the respondent builder's loss of bargain after the appellant's repudiation of the contract." 'Whether time to appeal from the orders in proceedings HB 20/309824 should be extended.']

Ratio Decidendi

The appeal in HB 20/23978 was dismissed because the appellant did not identify any appealable error in the Tribunal's factual findings, and the text message relied on to refute denial of access was sent after termination and could not undo the prior breach. The challenge concerning Payment 6 also failed because the Tribunal had found that the deposit constituted Progress Payment 1 and the appellant did not demonstrate error in that conclusion. However, in HB 20/309824 the Tribunal erred in awarding the respondent the balance of the contract price as loss of bargain damages. Because the contract was terminated, the respondent would not incur the costs of completing Payments 7, 8 and 9...

Court Disposition

Appeal in proceedings HB 20/23978 dismissed; time to appeal in proceedings HB 20/309824 extended; appeal in proceedings HB 20/309824 upheld and remitted on the single issue of proper assessment of the respondent's damages.

Orders

  • ['Appeal in proceedings HB 20/23978 dismissed.' 'Time to appeal from the orders made in proceedings HB 20/309824 extended up to and including 3 March 2021.' 'Appeal in proceedings HB 20/309824 upheld.' "Proceedings HB 20/309824 are remitted to the original Tribunal to be heard on the single issue of the proper...