Mazurek v Fisniku [2023] NSWCATCD 81

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mazurek v Fisniku [2023] NSWCATCD 81 Hearing dates: 22 June 2023 Date of orders: 18 July 2023 Decision date: 18 July 2023 Jurisdiction: Consumer and Commercial Division Before: G Ellis SC, Senior Member Decision: (1) By consent, the respondents are to carry out a satisfactory rectification of items referred to in Appendix A (the works). (2) By consent, Central Coast Certifiers is to be the sole determiner of whether the works have been done in compliance with Order 1. (3) By consent, the respondents are to bear the costs of Central Coast Certifiers. (4) By consent, the respondents are to complete the works by 21 July 2023 (the completion date). (5) By consent, with prior written notice to the applicants, the completion date may be extended to no later than 4 August 2023 where unforeseen events prevent completion of the works by the completion date. (6) By consent, the applicants have leave to renew the proceedings, in accordance with clause 8(2) of Schedule 4 to the Civil and Administrative Tribunal Act 2013. (7) The application is otherwise dismissed. (8) Any application for costs is to be made by filing and serving, by 31 July 2023, submissions (not exceeding five pages), together with any relevant evidence. (9) Any submissions in response (not exceeding five pages), together with any relevant evidence, are to be filed and served by 14 August 2023. (10) Any submissions in reply from the party applying for costs (not exceeding two pages), together with any relevant evidence, are to be filed and served on or before 21 August 2023. (11) Any such submissions should include an indication of whether the party agrees that costs should be determined on the papers, without a further hearing. Catchwords: BUILDING AND CONSTRUCTION - Whether costs plus contract replaced by fixed price contract – validity of termination – finding of mutual termination ESTOPPEL - Promissory estoppel - estoppel by convention BUILDING AND CONSTRUCTION - Cost of completion - alleged overcharging - storage costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) – ss 38, 60 Civil and Administrative Tribunal Regulation (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) - rr 38, 39 Civil Procedure Act 2005 (NSW) - s 100 Home Building Act 1989 (NSW) - s 18B Cases Cited: Banco de Portugal v Waterlow and Sons [1932] AC 452 at 506 Bonita v Shen [2016] NSWCATAP 159 Browne v Dunn (1893) 6 R. 67, HL Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Limited [1986] HCA 14; 160 CLR 226 Dabbs v Seaman [1925] HCA26; 36 CLR 538 Fox v Percy [2003] HCA 22 Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; 59 CLR 641 Hadley v Baxendale (1854) 9 Exch 341 Hasell v Bagot, Shakes & Lewis Ltd [1911] HCA 62 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 Latoudis v Casey [1990] HCA 59 L'Estrange v F Graucob Ltd [1934] 2 KB 394 Legione v Hateley [1983] HCA 11; 152 CLR 406 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 McDonald v Dennys Lascelles Ltd [1933] HCA 25; 48 CLR 475 Moratic Pty Limited v Gordon [2007] NSWSC 5 News v Cotes [2019] NSWCATAP 186 Oshlak v Richmond River Council [1998] HCA 11 Pongrass v Small [2021] NSWCATAP 314 Precision Plastics Pty Ltd v Demir [1975] HCA 27; 132 CLR 372 at 370-371 Taylor v Johnson [1983] HCA 5 TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd [1963] HCA 57 Thompson v Chapman [2016] NSWCATAP 6 Waltons Stores (Interstate) Limited v Maher [1988] HCA 7; 164 CLR 387 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: None cited Category: Principal judgment Parties: Applicants – Jamie Mazurek and Donna Burgess