Krolczyk v Winner t/as J Winner Building Services

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Krolczyk v Winner t/as J Winner Building Services [2022] NSWCA 196
Hearing dates: 16 May 2022
Date of orders: 05 October 2022
Decision date: 05 October 2022
Before: White JA at [1]
Kirk JA at [2]
Griffiths AJA at [3]
Decision:

1. Within 21 days hereof, the parties should seek to agree proposed short minutes of order which give effect to these reasons, including as to the costs of the appeal and the costs below.

2. If they are unable to reach agreement, each party should within that period file and serve written submissions not exceeding eight pages in length in support of their respective positions.

3. Final orders will then be made on the papers and without a further oral hearing.

Catchwords:

BUILDING AND CONSTRUCTION – Contract – Whether contract existed – Whether respondent engaged as either builder or supervisor – Alleged partly written and partly oral contract – No contract in existence

BUILDING AND CONSTRUCTION – Defective work – Duty to mitigate loss – Whether appellants acted reasonably to mitigate loss

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Design and Building Practitioners Act 2020 (NSW)

Home Building Act 1989 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Ayre Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309

Braham v ACN 101 482 580 Pty Ltd [2020] VSCA 108

Cavasinni v Cavasinni [2001] NSWSC 223

Ermogenous Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8

Expectation Pty Ltd v PRD Realty Pty Ltd 140 FCR 17; [2004] FCAFC 189

Fabre v Lui (No 2) [2015] NSWCA 312

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

House v The King (1936) 55 CLR 499; [1936] HCA 40

Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 193 CLR 603; [1998] HCA 38

Jadwan Pty Ltd v Rae & Partners (A Firm) (2020) 278 FCR 1; [2020] FCAFC 62

Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313

Krolczyk v Winner (t/as J Winner Building Services) (District Court of NSW, 20 October 2021, unrep)

Krolczyk v Winner (t/as J Winner Building Services) (District Court of NSW, 9 August 2021, unrep)

Le v Scott [2022] FCAFC 31

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Leichhardt Municipal Council v Green [2004] NSWCA 341

Magann v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2020] NSWCA 167

Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344

Nutrient Water Pty Ltd v Baco Pty Ltd (No 2) [2010] FCA 304

Peric-Davies v Mazdo [2004] NSWCA 20; (2004) 40 MVR 210

Robinson Helicopter CoInc v McDermott [2016] HCA 22; (2016) 331 ALR 550

Rockdale City Council v Micro Developments Pty Ltd [2008] NSWCA 128

Sacher InvestmentsPty…

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Details
Case
[2022] NSWCA 196
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between the appellants, Mr Krolczyk and Ms Krolczyk, and the respondent, Mr Winner, trading as J Winner Building Services. The appellants alleged that they had entered into a partly written and partly oral contract with the respondent for building services, which had been performed defectively. The primary judge had found that no contract existed between the parties. The appeal was heard by White and Kirk JJA and Griffiths AJA in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether a contract for building services had been formed between the parties, and if so, whether the work performed was defective. A further issue, contingent on the existence of a contract and defective work, was whether the appellants had acted reasonably to mitigate their loss.

The Court of Appeal found that the primary judge had erred in their approach to weighing the evidence and drawing inferences regarding the existence of a contract. The Court of Appeal held that it was their duty to independently assess the conflicting evidence and determine for themselves which of the competing hypotheses – that a contract existed or that it did not – was the more probable. The Court concluded that the primary judge had failed to undertake this task adequately, thereby making good the appellants' second ground of appeal. The Court of Appeal then proceeded to re-evaluate the evidence to determine the existence of a contract and the other issues raised.

Orders

Orders of the court

was neither glaringly improbable nor contrary to compelling inferences. It was the duty of the Court of Appeal to decide for itself which of the two hypotheses was the more probable. It was the duty of the Court of Appeal to persist in its task of “weighing [the] conflicting evidence and drawing its own inferences and conclusions”, and, ultimately, to decide for itself which of the two hypotheses was the more probable. It did not. The appellant's second ground is made good. (footnotes omitted)

90.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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