Baak v Concrete Services Group Pty Ltd [2016] NSWCATAP 42

Baak v Concrete Services Group Pty Ltd [2016] NSWCATAP 42

The Tribunal was not in breach of procedural fairness for not considering the floor thickness as the owners did not plead or claim it during the hearing, and did not seek to amend their claim. The award of $1,000, although described as nominal, was fair and equitable given limited evidence and is not to be disturbed given the limited proven loss and lack of quantification.

Parties
Appellant: Linda Baak; Appellant: Stuart Baak; Respondent: Concrete Services Group Pty Ltd
Jurisdiction
Australia
Judgment Date
17 January 2016
Procedural Posture
Appeal / Decision of Appeal on the Merits
Outcome
Appeal dismissed
Legal Topics
Procedural Fairness, Nominal Damages, Breach of Contract, Damages Assessment, Tribunal Procedure
Contract Law Consumer Law Building and Construction Law Procedural Fairness Nominal Damages Breach of Contract Damages Assessment Tribunal Procedure

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Parties

Linda Baak

Appellant

Stuart Baak

Appellant

Concrete Services Group Pty Ltd

Respondent

Procedural Posture

Appeal / Decision of Appeal on the Merits

Legal Issues

  1. 1 Whether the Tribunal denied procedural fairness by not considering or alerting parties to the failure to plead thickness of floor as a claim
  2. 2 Whether the award of only nominal damages for cracking to walls was an error due to insufficient quantification of loss

Ratio Decidendi

The Tribunal was not in breach of procedural fairness for not considering the floor thickness as the owners did not plead or claim it during the hearing, and did not seek to amend their claim. The award of $1,000, although described as nominal, was fair and equitable given limited evidence and is not to be disturbed given the limited proven loss and lack of quantification.

Court Disposition

Appeal dismissed

Orders

  • The appeal of Linda Baak and Stuart Baak is dismissed.