Blue Haven Pools South Pty Ltd v Maloney [2019] NSWCATAP 259

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Blue Haven Pools South Pty Ltd v Maloney [2019] NSWCATAP 259 Hearing dates: 7 June and 9 August 2019 Date of orders: 17 October 2019 Decision date: 17 October 2019 Jurisdiction: Appeal Panel Before: Dr R Dubler SC, Senior Member J Kearney, Senior Member Decision: (1) Leave to appeal is refused; (2) The appeal is dismissed;

Blue Haven has been unsuccessful. The Appeal Panel makes the following directions on the determination of any application for costs:

(3) If the Respondent wishes to seek an order for costs of this appeal in her favour, she is to file and serve within 14 days of this decision a short outline of submissions as to why the Appeal Panel should make such an order and as to whether the question of costs should be determined on the papers; (4) If the Appellant opposes any costs order being made, the appellant is to file and serve a short outline of submissions as to why such an order should not be made and dealing with whether the issue of costs should be determined by the Appeal Panel on the papers, 14 days after receipt of the Respondent's submissions on costs; and (5) The Respondent is to file and serve any reply submissions on costs within 14 days after service of the Appellant's submissions. Catchwords: APPEAL – whether permitted to raise new issue on appeal CONTRACT – construction of contract – whether capricious, unreasonable, inconvenient or unjust CONTRACT – repudiation – whether retracted by conduct Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Australian Broadcasting Commission v Australasian Performing Rights Association Ltd (1973) 129 CLR 99 Collins v Urban [2014] NSWCATAP 17 Coulton v Holcombe (1986) 162 CLR 1 Godecke v Kirwan (1973) 129 CLR 629 Hume Steel Ltd v A-G (Vic) (1927) 39 CLR 455 Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd [2008] NSWCA 5 NAJT v Minister for Immigration & Indigenous Affairs [2005] FCAFC 134 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Suttor v Gundowda Pty Ltd [1950] HCA 35 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 W & K Holdings (NSW) Pty Ltd v Laureen Margaret Mayo [2013] NSWSC 1063 Walker v Citygroup Global Markets Australia Pty Ltd [2006] FCAFC 101 Wentworth Partners estate Agents Pty Ltd t/as RE MAX Gold v Gordony [2007] NSWSC 1135 Texts Cited: None cited Category: Principal judgment Parties: Blue Haven Pools South Pty Ltd (Appellant) Christine Maloney (Respondent) Representation: Counsel: B Lloyd (Respondent)