TRIMIS & ANOR v MINA (No 2) [1999] NSWCA 246

New South Wales Court of Appeal CITATION : TRIMIS & ANOR v MINA (No 2) [1999] NSWCA 246 FILE NUMBER(S) : CA 40164/98 HEARING DATE(S) : 17 March 1999 JUDGMENT DATE : 16 July 1999

PARTIES : Sofoclis TRIMIS & Anor v Nizik MINA JUDGMENT OF : Mason P at 1; Priestley JA at 1; Handley JA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 7949/94 LOWER COURT JUDICIAL OFFICER : George ADCJ

COUNSEL : TGR Parker (Appellant) M Galvin (Respondent) SOLICITORS : Coustas & Co (Appellant) Elias Gates & Associates (Respondent) CATCHWORDS : Costs - no matter of principle DECISION : Allowed in part

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40164/98 DC 7949/94 MASON P PRIESTLEY JA HANDLEY JA

Friday 16 July 1999

SOFOCLIS TRIMIS & ANOR v NAZIH MINA (NO 2)

JUDGMENT

1 THE COURT: Except as to costs, the parties are agreed as to the substance of the orders which should be made in the light of the reasons published on 18 May 1999. The judgment for the respondent (builder) is to be reduced from $50,720.83 inclusive of interest to $44,787.25 inclusive of interest, taking effect on the date judgment was entered in the District Court. 2 The judgment of Mason P records that the appellants failed in their submissions that the contract was repudiated by the builder (pars 42-45); that the builder's damages for breach of contract were assessed on an erroneous basis (pars 46-50); and that the owners' cross claim was wrongly dismissed (pars 65-75). 3 They succeeded in overturning the portion of the builder's verdict referable to five variations because they were not in writing and because the primary judge's resort to restitutionary principles to sidestep the absence of writing was in error. The total money involved in the five variations was $5,328.93 (with appurtenant interest of $604.65). 4 The appellants accept that they have substantially failed in the proceedings and in the appeal. And they accept that it is fair that they should, in consequence, pay a preponderance of the builder's costs. They submit that 70% is the appropriate amount, taking into account: