Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31

New South Wales Court of Appeal

CITATION: Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31

HEARING DATE(S): 11 and 12 December 2006

JUDGMENT DATE: 28 February 2007

JUDGMENT OF: Beazley JA at 1; Bryson JA at 161; Basten JA at 167

DECISION: 1. Appeal allowed; 2. Verdict, judgment and orders of the trial judge set aside; 3. Order that there be judgment for the appellant on the Statement of Claim; 4. Order that there be judgment for the appellant on the cross-claim with damages to be assessed; 5. Remit the matter to the District Court for assessment of damages in respect of the items, (including floors) specified in paragraph [70] of this judgment, together with the claim for liquidated damages and rent; 6. Order the respondent to pay the appellant's cost of the hearing at first instance and on the appeal, the respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if so entitled.

CATCHWORDS: CONTRACT – building contract – implication of term by custom or usage - whether custom or usage so well-known to home owners to imply term into contract – whether implication contrary to express terms of contract - REASONS FOR DECISION – whether trial judge gave adequate reasons for decision – whether trial judge failed to properly engage in fact-finding exercise – determination of expert evidence - DAMAGES – damages for breach of building contract – whether damage proved – rejection of evidence - difficulties in estimating loss – damages should not be nominal - UNREPRESENTED LITIGANT – duty of a trial judge - whether trial judge ensured unrepresented party understood procedural options – failure to provide explanation of processes - APPEAL – order for new trial - whether trial sufficiently unfair to demonstrate miscarriage