Middleton v Wrona [2023] NSWCATAP 158

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Middleton v Wrona [2023] NSWCATAP 158 Hearing dates: 16 December 2022 Date of orders: 14 June 2023 Decision date: 14 June 2023 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President D Robertson, Senior Member Decision: 1. To the extent necessary, leave to appeal order 3 made by the Tribunal on 1 September 2022 in application HB 20/12879 is granted, the appeal is allowed and order 3 is set aside. 2. The stay of order 1 made by the Appeal Panel on 28 October 2022 is lifted and order 4(1)(f) made on 1 September 2022 in application HB 20/12879 is amended to require the work the subject of order 1 made 1 September 2022 in application HB 20/12879 to be completed within 9 months from the date of this order. 3. Save as provided above, leave to appeal is refused and the appeal is otherwise dismissed. 4. In respect of the costs of these proceedings and of the proceedings at first instance, the following directions are made: a) Any party seeking costs (costs applicant) in respect of the proceedings at first instance or of this appeal is to file and serve any application for costs within 14 days from the date of these orders, such application to include any evidence and short submissions (not more than 8 pages) in support of the application. b) The respondent to any costs application is to file and serve any evidence and short submissions (not more than 8 pages) in response within 28 days from the date of these orders. c) The costs applicant is to file any submissions in reply within 35 days from the date of these orders. d) The submissions are to include submissions about whether an order should be made dispensing with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: BUILDING AND CONSTRUCTION – Lump sum contract – additional work – payment of progress payments – effect of progress payments – overpayment of contract sum – entitlement to recover overpayment – breach of contract – obligation to account RESTITUTION – entitlement to recovery – money had and received – need to prove "qualifying or vitiating" factor – onus of proof BUILDING AND CONSTRUCTION – Order to demolish and rebuild garage – competing evidence – challenge to Tribunal's evaluation of evidence Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Tribunal Rules, 2014 (NSW) Contracts Review Act 1980 (NSW) Home Building Act 1989 (NSW) Cases Cited: Amcor Ltd v Trevor Mark Barnes [2019] VSC 849 Baltic Shipping Company v Dillon (1993) 176 CLR 344; [1993] HCA 4 Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266; (1977) 52 ALJR 20; [1977] HCA 40; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24 Collins v Urban [2014] NSWCATAP 17 Coshott Family Pty Ltd v Lyons [2022] NSWCA 216 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 Friends' Provident Life Office v Hillier Parker May & Rowden (a firm) [1997] QB 85; [1995] 4 All ER 260 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 McGrath Corporation Pty Ltd v Global Construction Management (Qld) Pty Ltd and another [2011] QSC 178 Moody v M K Building Services Group Pty Ltd [2022] NSWCATAP 212 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Wright v Foresight Constructions Pty Ltd [2011] NSWCA 327 York Air Conditioning & Refrigeration (A/sia) Pty Ltd v Commonwealth (1949) 80 CLR 11; [1949] HCA 23 Texts Cited: "What's in a name? The taxonomical and conceptual divide between unjust enrichment and equity", The Hon Justice Julie Ward, 13 June 2019, University of Queensland Current Legal Issues Seminars 2019, law.uq.edu.au/files/46745/UnjustEnrichment_Aus_final.pdf Category: Principal judgment Parties: Lee Kenneth Middleton (Appellant) Linda May Wrona (First Respondent) Richard John Wrona (Second Respondent) Representation: Counsel: T Davie (Appellant) P Barham (Respondents)