Krolczyk v Winner t/as J Winner Building Services [2022] NSWCA 196

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Krolczyk v Winner t/as J Winner Building Services [2022] NSWCA 196 Hearing dates: 16 May 2022 Date of orders: 05 October 2022 Decision date: 05 October 2022 Before: White JA at [1] Kirk JA at [2] Griffiths AJA at [3] Decision: 1. Within 21 days hereof, the parties should seek to agree proposed short minutes of order which give effect to these reasons, including as to the costs of the appeal and the costs below. 2. If they are unable to reach agreement, each party should within that period file and serve written submissions not exceeding eight pages in length in support of their respective positions. 3. Final orders will then be made on the papers and without a further oral hearing. Catchwords: BUILDING AND CONSTRUCTION – Contract – Whether contract existed – Whether respondent engaged as either builder or supervisor – Alleged partly written and partly oral contract – No contract in existence BUILDING AND CONSTRUCTION – Defective work – Duty to mitigate loss – Whether appellants acted reasonably to mitigate loss Legislation Cited: Civil Procedure Act 2005 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Design and Building Practitioners Act 2020 (NSW) Home Building Act 1989 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Ayre Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 Braham v ACN 101 482 580 Pty Ltd [2020] VSCA 108 Cavasinni v Cavasinni [2001] NSWSC 223 Ermogenous Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 Expectation Pty Ltd v PRD Realty Pty Ltd 140 FCR 17; [2004] FCAFC 189 Fabre v Lui (No 2) [2015] NSWCA 312 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 House v The King (1936) 55 CLR 499; [1936] HCA 40 Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 193 CLR 603; [1998] HCA 38 Jadwan Pty Ltd v Rae & Partners (A Firm) (2020) 278 FCR 1; [2020] FCAFC 62 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 Krolczyk v Winner (t/as J Winner Building Services) (District Court of NSW, 20 October 2021, unrep) Krolczyk v Winner (t/as J Winner Building Services) (District Court of NSW, 9 August 2021, unrep) Le v Scott [2022] FCAFC 31 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Leichhardt Municipal Council v Green [2004] NSWCA 341 Magann v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2020] NSWCA 167 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Nutrient Water Pty Ltd v Baco Pty Ltd (No 2) [2010] FCA 304 Peric-Davies v Mazdo [2004] NSWCA 20; (2004) 40 MVR 210 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 Rockdale City Council v Micro Developments Pty Ltd [2008] NSWCA 128 Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd [1976] 1 NSWLR 5 The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2022] NSWSC 659 Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 193 CLR 603; [1998] HCA 38 Texts Cited: Cheshire & Fifoot Law of Contract (11th Australian ed, 2017) JD Heydon, Heydon on Contract (Thomson Reuters, 2019) Williston on Contracts, 3 ed Category: Principal judgment Parties: Ted Peter John Krolczyk (First Appellant) Janice Margaret Muir (Second Appellant) Jarad Keith Winner trading as J Winner Building Services (Respondent) Representation: Counsel: D O'Connor with C Langford (Appellants) M Klooster (Respondent) Solicitors: Adams & Partners Lawyers (Appellants) Michael Atkinson & Associates (Respondent) File Number(s): 2021/00243855 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: NA Date of Decision: 09 August 2021 Before: Olsson SC DCJ File Number(s): 2018/00133146