Dellagiacomo v Strauss and Dragh [2015] NSWCATCD 144

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dellagiacomo v Strauss and Dragh [2015] NSWCATCD 144 Hearing dates: 3 September 2015 Decision date: 01 December 2015 Jurisdiction: Consumer and Commercial Division Before: R C Titterton, General Member Decision: The second respondent is to pay the applicant the sum of $17,665.00 on or before 29 December 2015. Catchwords: CONTRACT – assessment of damages – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Commonwealth v Amann Aviation Pty Ltd (1992) 166 CLR 351 Donnellan v Woodland [2012] NSWCA 433 Hadley v Baxendale (1854) 9 Ex 341 at 354; 156 ER 145 Hungerfords v Walker (1990) 171 CLR 125 Robinson v Harman (1848) 1 Ex 850 Rowland v Composition Construction Pty Ltd [2014] NSWCATCD 32 Texts Cited: Carter and Harland, Contract Law in Australia, Third Ed. Category: Principal judgment Parties: Tess Dellagiacoma (applicant) John Igon Strauss and Pierre Dragh (respondents) File Number(s): HB 15/04205 Publication restriction: Nil

REASONS for decision 1. By application dated 28 January 2015 the applicant Ms Tess Dellagiacoma sought orders against the first respondent Mr John Strauss and against the second respondent Mr Pierre Dragh. 2. For the reasons that follow, the Tribunal orders the second respondent to pay Ms Dellagaicomo the sum of $17,665.00. That amount is to be paid within 28 days of the publication of these reasons.

Background 1. The application concerns the building of two granny flats on properties owned by the applicant, one at Blacktown and the other at Lalor Park (respectively the Blacktown property and the Lalor Park property). The application was filed electronically on 28 January 2015. The applicant sought orders that the Blacktown property be completed, and that her deposit in respect of the Lalor Park property be returned. The total amount claimed was $169,119.00. 2. The proceedings had a number of directions hearings. 3. The first directions hearing was held on 24 March 2015. On that occasion the hearing was adjourned to a date to be fixed and the parties encouraged to obtain advice and to have further similar discussions 4. The second directions hearing was held on 4 May 2015. Prior to that hearing on 28 April 2015 the applicant sent an email to the Registry attaching a letter from her to the respondents also dated 28 April 2015. In that letter the applicant: 1. Refers to accepting an offer from the respondents to refund the deposit paid on the contract for the granny flat at the Blacktown property. She states that she accepted their offer in response dated 31 March 2015. She asked that the $35,000, with being a deposit paid by her, be paid into her account. 2. States that she also accepted an offer from the respondents in her letter of 31 March 2015 to complete the works on the Lalor Park property by 30 May 2015. She states that if she does not receive proof that the building is well underway by 20 May 2015, and has reason to believe that completion will not occur by 30 May 2015, she will assume that the respondents have abandoned the works, and that on 30 May 2015 she will terminate the contract. 1. The respondents' response to that letter (an email dated 30 April 2014), also sent to the Tribunal by the applicant, states that he has been instructed that $35,000 (that is the deposit in respect of the Blacktown property) will be deposited into the applicant's account by 30 May 2015. The applicant's response, the following day states that "I look forward to getting my $35,000 returned for works never done". 2. At the second directions hearing on 4 May the following orders were made: 1. By determination of the member, the hearing was adjourned to a date to be fixed. 2. By consent, the respondents were to complete the granny flat at the Lalor Park property in accordance with plans and specifications. 3. By consent, the respondents were to pay the applicant $35,000 for refund of the deposit paid for the works which did not proceed at the Blacktown property on or before 30 May 2015. 4. The applicant was to provide to the respondents and the Tribunal a copy of all documents on which the applicant intended to rely the hearing by 22 May 2015 indicating the basis of the damages claim she wishes to make relating to a delay in the works. 5. The respondents were to provide their documents at the hearing by 5 June 2015. 1. While it might be thought that the applicant had resolved her claim in relation to the Blacktown property by consenting to the order for the return of the deposit, she made it plain at that directions hearing that she still wished to be compensated for her losses, in particular interest on loans taken out and loss of rental income. The Tribunal notes that neither the relevant order, nor the consent agreement on the Tribunal file, provided that the applicant had accepted the return of the deposit in full and final settlement of her claim. 2. A third directions hearing was held on 16 June 2015. Again, the matter was adjourned by determination of the member. The respondents were directed to provide to the applicant any documents on which they relied by 23 June 2015. A notation to the orders relevantly state: Despite consent orders being made on 4 May 2015, respondent has not complied with those orders to complete the works on one project, and to return the $35,000 deposit from the other project, apparently because of disputes in relation to some of the items claimed by the applicant and/or a dispute in relation to the reasonable cost of finishing that project the respondents were to complete by consent. It is not clear how those disputes prevented the consent orders from being complied with. The respondents also failed to comply with orders for the service of evidence. No reasonable excuse was provided in that regard, except that the respondents have commissioned a report on damages, which should in any case have been filed in accordance with the orders. 1. On 2 July 2015 the applicant caused to have issued to her a certificate under s 78 of the Civil and Administrative Tribunal Act 2013. The certificate certifies that the consent order was made on 4 May 2015 ordering the respondents to pay the applicant $35,000 on before 30 May 2015.