Krolczyk v Winner t/as J Winner Building Services (No 2) [2022] NSWCA 241

Krolczyk v Winner t/as J Winner Building Services (No 2) [2022] NSWCA 241

The appeal was allowed only in part because the appellants succeeded only on limited issues concerning the respondent's responsibility for items 1, 4 and 5, mitigation, and indemnity costs, while failing on most grounds including the primary contention that the respondent was the builder or supervisor. The Court preferred aspects of Mr Iskowicz's costing methodology to Mr Frizzell's estimates for items 1 and 5, allowed $5,199.15 for item 4, $9,335.70 for item 1, and $11,255.58 for item 5, producing damages of $25,790.43. Given the appellants' limited success, the disproportion between the damages recovered and the amount claimed, and the respondent's substantial success below, there was...

Jurisdiction
Australia
Judgment Date
29 November 2022
Procedural Posture
Appeal From District Court Civil Proceedings Concerning Building Works and Damages / Consequential Orders Following Appeal Judgment
Outcome
Appeal allowed in part.
Legal Topics
['consequential Orders' 'assessment of Damages for Defective Building Works' 'costs Discretion' 'limited Success on Appeal' 'expert Evidence on Rectification Costs']
['civil Procedure' 'costs' 'building and Construction' 'contract' 'negligence'] ['consequential Orders' 'assessment of Damages for Defective Building Works' 'costs Discretion' 'limited Success on Appeal' 'expert Evidence on Rectification Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal From District Court Civil Proceedings Concerning Building Works and Damages / Consequential Orders Following Appeal Judgment

Legal Issues

  1. 1 ["What final orders should be made to give effect to the Court's reasons in Krolczyk v Winner t/as J Winner Building Services [2022] NSWCA 196." "What amount of damages should be awarded for the respondent's responsibility for defective wall framing and related work comprising items 1, 4 and 5." "What costs orders should be made for the proceedings below and the appeal having regard to the appellants' limited success."]

Ratio Decidendi

The appeal was allowed only in part because the appellants succeeded only on limited issues concerning the respondent's responsibility for items 1, 4 and 5, mitigation, and indemnity costs, while failing on most grounds including the primary contention that the respondent was the builder or supervisor. The Court preferred aspects of Mr Iskowicz's costing methodology to Mr Frizzell's estimates for items 1 and 5, allowed $5,199.15 for item 4, $9,335.70 for item 1, and $11,255.58 for item 5, producing damages of $25,790.43. Given the appellants' limited success, the disproportion between the damages recovered and the amount claimed, and the respondent's substantial success below, there was...

Court Disposition

Appeal allowed in part.

Orders

  • ['The appeal be allowed in part.' 'There be no order as to costs of the appeal.' 'The orders dated 9 August 2021 and 20 October 2021 of the District Court be set aside and replaced by the following orders:' 'Judgment for the plaintiffs against the first defendant.' 'The first defendant pay the plaintiffs $25,790.43...