Scott v Stewart [2021] NSWCATAP 326

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Scott v Stewart [2021] NSWCATAP 326 Hearing dates: 5 October 2021 Date of orders: 22 October 2021 Decision date: 22 October 2021 Jurisdiction: Appeal Panel Before: R C Titterton OAM, Senior Member J McAteer, Senior Member Decision: 1. In proceedings 2021/00146721: (a) leave to appeal refused; (b) appeal otherwise dismissed. 2. In proceedings 2021/00180102: (a) leave to appeal refused; (b) appeal otherwise dismissed. 3. Each party is to file submissions as to the costs of the appeals within seven days. Each party may reply to the other's submissions within 14 days. 4. The Tribunal proposes to determine the issue of costs in each appeal "on the papers" and without a hearing. 5. If either party opposes that course it should address that matter in their submissions. 6. Each set of submissions is to be no longer than five pages in length. Catchwords: CONTRACT LAW – termination on notice – substantial breach – meaning of "substantial". REPUDIATION – election – manner by which repudiation can be accepted – reasonable time to make election – conduct in performance of contract while considering notice under contract. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) – s 80(2)(b) Fair Trading Act 1987 (NSW) – s 79U(1) Home Building Act 1989 (NSW) – 4(1) Cases Cited: Allphones Retail Pty Ltd v Hoy Mobile Pty Ltd [2009] FCAFC 85. Collins v Urban [2014] NSWCATAP 17 Coulton v Holcombe [1986] HCA 33 Dimitropoulos v Capital Constructions Pty Ltd; Capital Constructions Pty Ltd v Dimitropoulos [2018] NSWCATAP 100 Drivas v Burrows [2014] NSWCATAP 87 Earnshaw v Gorman & Sons Pty Ltd [2001] WASCA 50 Halkidis v Bugeja [1974] 1 NSWLR 423 Hocking v Bell (1945) 71 CLR 430 McNally v Waitzer [1981]1 NSWLR 294 Palm Homes Pty Ltd v Kav's Constructions Pty Ltd [2015] NSWCATAP 113 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 State Bank of NSW v Brown (2001) 38 ASCR 715; [2001] NSWCA 223 Category: Principal judgment Parties: Appellant: Mark Owen Archibald Scott Respondent: Debra Stewart and Peter Meywe Representation: Counsel: M Gunning (for M Scott) M Klooster (for D Stewart and P Meywes)