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

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mikhail v JJ Built This Pty Ltd [2021] NSWCATAP 159 Hearing dates: 18 May 2021 Date of orders: 31 May 2021 Decision date: 31 May 2021 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member J McAteer, Senior Member Decision: (1) Appeal in proceedings HB 20/23978 dismissed. (2) Time to appeal from the orders made in proceedings HB 20/309824 extended up to and including 3 March 2021. (3) Appeal in proceedings HB 20/309824 upheld. (4) Proceedings HB 20/309824 are remitted to the original Tribunal to be heard on the single issue of the proper assessment of the respondent's damages and in accordance with these reasons. (5) The remitted proceedings are to be determined on the evidence adduced by the parties at the original hearing, together with such further evidence as the Tribunal may allow. (6) If any party desires to make an application for costs of the appeal: (a) that party is to so inform the other parties within 14 days of the date of these reasons (we note the respondent has already done so); (b) the applicant for costs is to lodge with the Appeal Panel and serve on the respondent to the costs application any written submissions of no more than five pages on or before 14 days from the date of these reasons (the respondent is to comply with this direction in relation to any further submissions it wishes to make in light of our reasons for decision and is to comply with direction (e) below); (c) the respondent to any costs application is to lodge with the Appeal Panel and serve on the applicant for costs any written submissions of no more than five pages on or before 28 days from the date of these reasons; (d) any reply submissions limited to three pages are to be lodged with the Appeal Panel and served on the other party within 35 days of the date of these reasons; (e) the parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers. Catchwords: BUILDING AND CONSTRUCTION - contract -damages – repudiation by home owner – loss of bargain or expectation damages – proper measure of damages – builder entitled to lost profits rather than the balance of payments due under the contract had it not been repudiated Legislation Cited: Nil Cases Cited: Cominos v Di Rico [2016] NSWCATAP 5 Commonwealth of Australia v Amman Aviation (1991) 174 CLR 64; [1991] HCA 54 Mendonca v Legal Services Commissioner [2020] NSWCA 84 Texts Cited: Halsbury's Laws of Australia, online edition, [65-2155] Category: Principal judgment Parties: Guiguis Mikhail (Appellant) JJ Built This Pty Ltd (Respondent) Representation: Solicitors: Appellant (Self Represented) SKM Lawyers (Respondent) File Number(s): 2021/00061990 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 22 January 2021 Before: D G Charles, Senior Member File Number(s): HB 20/23978; HB 20/309824