Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 Hearing dates: 15 February 2017 Date of orders: 07 September 2017 Decision date: 07 September 2017 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member G Sarginson, Senior Member Decision: In AP 16/52241:

1. The appeal is allowed in part. 2. Order 1 of the Tribunal dated 28 October 2016 is varied as follows: "The builder is to pay the homeowners the sum of $95,754.00 immediately". 3. The appeal is otherwise dismissed.

In AP 16/53370:

4. Time for National Strategic Construction Pty Ltd to lodge the appeal is extended to 7 December 2016. 5. Leave to appeal is refused. 6. The appeal is dismissed.

In both applications:

7. Any application for costs is to be made in writing to the Tribunal (with a copy sent to the other party) within 14 days of the date of publication of these reasons for decision and is to be accompanied by a submission not exceeding three pages in length.

8. Any submission in response to the costs application is not to exceed three pages in length and is to be provided to the Tribunal and the other party within 14 days of receipt of the costs application.

9. Any submission in reply is to be provided to the Tribunal within seven days thereafter.

10. In their submissions on costs, the parties are to address whether the issue of costs can be determined without a hearing, on the basis of the written submissions. Catchwords: APPEAL – Assessment of damages – principle in Bellgrove v Elldridge – Assessment of consequential loss – conventional estoppel – waiver Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Home Building Act 1989 Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 251 ALR 322; [2008] HCA 57 Barwick v Shetab [2017] NSWCATAP 127 Bellgrove v Eldridge [1954] HCA 36; 90 CLR 613 Brewarrina Shire Council v Beckhaus Civil Pty Ltd & 1 Or [2005] NSWCA 248; Chi Building Pty Ltd v Wedgwood [2016] NSWCATAP 64 Collins v Urban [2014] NSWCATAP 17 G MacFayden and Anor v G Tadrosse [2014] NSWCATCD 194 Head Mod Nominees Pty Ltd v Macken [2016] NSWCATAP 106 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Little v J & K Homes Pty Ltd [2017] NSWCATAP 84 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 Miller Heiman Pty Ltd v Sales Principles Pty Ltd [2017 NSWCA 106 Robinson v Harman (1848) 1 Ex 850; 145 ER 363 Sidhu v Van Dyke (2014) 214 CLR 505 [2014] HCA 19 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27 Wheeler v Ecroplot Pty Ltd [2010] NSWCA 61 Category: Principal judgment Parties: Paul Deacon and Emilie Deacon – Appellants and cross-respondents National Strategic Constructions Pty Ltd – Respondent and cross-appellant Representation: Counsel: Mr G Carolan for Paul Deacon and Emilie Deacon Mr A Justice for National Strategic Constructions Pty Ltd