Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184 Hearing dates: 17 November 2022 Date of orders: 07 July 2023 Decision date: 07 July 2023 Jurisdiction: Appeal Panel Before: K Ransome, Senior Member G Sarginson, Senior Member Decision: (1) Appeal allowed in part. (2) Decision of the Tribunal dated 29 August 2022 in Matter HB 21/08577 that appellant pay respondent $347,851 damages for loss of rental income is set aside. (3) Issue of what, if any, damages for loss of rental income should be awarded is remitted to the Tribunal to be determined according to law. (4) What, if any, fresh evidence is allowed in the remitted proceedings is a matter for determination by the Tribunal. (5) The appeal is otherwise dismissed. (6) Costs of the appeal are to be determined in the following manner: (a) Appellant to file with the Registry and serve on the respondent all costs submissions and documents by 14 days from the date of this decision. (b) Respondent to file with the Registry and serve on the appellant all costs submission and documents by 28 days from the date of this decision, both in response to any costs application by the appellant and in support of any costs application by the respondent. (c) Appellant to file with the Registry and serve on the appellant all costs submissions and documents in reply to the costs submissions and documents of the respondent by 35 days from the date of this decision. (d) The costs submissions of the parties are to address whether the parties seek to be orally heard on the issue of costs or whether the issue of costs should be determined on the papers and without an oral hearing. (e) Subject to consideration of the costs submission of the parties the Appeal Panel may determine it appropriate to determine the issue of costs without further oral hearing pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). (f) Either party may seek to vary the timetable for the filing and service of costs submissions by written application to the Appeal Panel by no later than the date of the applicable timetable obligation. Catchwords: APPEALS---Building and construction---Home Building Act 1989 (NSW)---Contract---Damages---Loss of ability to rent dwelling---Loss of profit---Principles applicable to assessment of damages Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Browne v Dunn (1893) 6 R 67 Bui v DB Homes Australia Pty Ltd [2017] NSWCATAP 218 Chi Building Pty Ltd v Wedgwood [2016] NSWCATAP 64 Christian Community Ministries Ltd v Minister for Education and Early Learning [2023] NSWSC 272 Clayton v Clayton [2023] NSWSC 399 Collins v Urban [2014] NSWCATAP 17 Commonwealth v Amman Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017 NSWCATAP 185 Divola v Natural Solar Power Pty Ltd [2022] NSWCATAP 379 Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145 Ho v Powell [2001] NSWCA 168 House v The King [1936] HCA 40; (1936) 55 CLR 499 Ippolito v Cesco [2020] NSWSC 561 Italiano v Carbone & Ors [2005] NSWCA 177 Jones v Dunkel & Anor [1959] HCA 8; (1959) 101 CLR 298 Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 Leeda Projects Pty Ltd v Zheng [2020] VSCA 192; (2020) VR 384 Leung v Alexakis [2018] NSWCATAP 11 McKerlie v Leeser [2023] NSWCATAP 112 Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Moses v Ratner [2022] NSWSC 1234 Pholi v Wearne [2014] NSWCATAP 78 Pollock v NSW Trustee & Guardian [2022] NSWSC 923 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Robinson v Harman (1848) 154 ER 363 Robinson v Hindmarsh Construction Australia Pty Ltd [2021] NSWCATAP 51 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 Selstam Pty Ltd v McGuiness; James Hardie & Coy Pty Limited v McGuiness [2000] NSWCA 29 Simjanovska v Dogan [2023] NSWCATAP 69 Toplace Pty Ltd v Rashidianfar [2021] NSWCATAP 235 Touma v Colantuono [2021] NSWCATAP 152 Water Board v Moustakas [1988] HCA 12; (1994) 180 CLR 491 Williams v McFarlane [1996] NSWCA 559 Wojciechowska v Blue Mountains City Council [2022] NSWCATAP 299 Texts Cited: None cited Category: Principal judgment Parties: Beechwood Homes (NSW) Pty Ltd (Appellant) Polixeni Hassos (Respondent) Representation: Counsel: D Neggo (Appellant) M Walsh (Respondent)