Torok v Petersen; Gauci v Petersen [2020] NSWSC 482

Supreme Court New South Wales

Medium Neutral Citation: Torok v Petersen; Gauci v Petersen [2020] NSWSC 482 Hearing dates: 19, 20 March 2020 Date of orders: 20 April 2020 Decision date: 07 April 2020 Jurisdiction: Equity Before: Rein J Decision: See [2], [41]-[43]. Catchwords: CONTRACTS – Breach of contract – Forms of breach – Non-performance – Where, in the Torok case, plaintiff contracted with first defendant to build a floating home – Defendant failed to complete project within the contracted period and refused to deliver the uncompleted floating home to the plaintiff without further payment beyond the contract price – Where, in the Gauci case, the plaintiff contracted with the second defendant (being the first defendant's company) to build a floating home and second defendant failed to complete the project; plaintiff sued for return of her deposit – Held: in the Gauci case, during the hearing the second defendant consented to judgment against it in the amount of the deposit plus interest. In the Torok case, the Court made a declaration that the plaintiff is the legal owner of the floating home and is entitled to possession and control of it.

CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Rule in Hadley v Baxendale – Where, in the Torok case, plaintiff sued for damages for rental income that he would have earnt from leasing out the floating home, a bank loan and additional labour/repairs on the floating home that the plaintiff had to pay for as a result of the first defendant's non-performance, as well as insurance and mooring fees – Held: plaintiff entitled to damages for lost rental income, as defendant knew this was what the plaintiff intended to do with the floating home when completed; plaintiff also entitled to damages for additional labour/repair costs, etc., and for the amount of the bank loan and interest paid on that loan; however, plaintiff not entitled to damages for cost of insurance and mooring fees because plaintiff would have had to pay those costs in order to rent out the floating home. Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145 Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd [1938] HCA 66; (1938) 61 CLR 286 Robinson v Harman (1848) 1 Ex 850; 154 ER 363 Wenham v Ella [1972] HCA 43; (1972) 127 CLR 454 Texts Cited: Carter, J. W., Carter on Contracts (LexisNexis Butterworths, 6th ed, 2011) Davis, J. L. R. (ed), Contract: General Principles: The Laws of Australia (Thomson Lawbook Co, 2006) Category: Principal judgment Parties: Mr Andras Torok (Plaintiff in Torok matter) Ms Michelle Gauci (Plaintiff in Gauci matter) Mr Ed Petersen (First Defendant in both matters) The Petersen Modules and Associates Pty Ltd (Second Defendant in both matters) Representation: Counsel: Ms L. Beange (for the Plaintiff in both matters)