Krolczyk v Winner t/as J Winner Building Services

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.