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Mackay v Mitena Pty Ltd 632 381 367

Mackay v Mitena Pty Ltd 632 381 367

Case [2024] ACAT 69 2 September 2024

Breach of Contract

Compensatory Damages

Contract Law

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ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MACKAY v MITENA PTY LTD 632 381 367 [2024] ACAT 69

XD 1088/2023

Catchwords: CIVIL DISPUTES – contract – sale and purchase of home unit off the plan – special condition about defects – whether the respondent fails to rectify defects within time – damages for breach of contract awarded to the applicant

List of Cases: Australian Medic-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd [2009] FCA 1220; 261 ALR 501
British Westinghouse Electric & Manufacturing Co Ltd v. Underground Electric Railways Co of London Ltd [1912] AC 673
Gumland Property Holdings Pty Ltd v. Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10; 234 CLR 237
Hadley v Baxendale [1905] HCA 20
Hobbs v London & South Western Railway Co (1875) LR 10 QB 111
Baltic Shipping Co v Dillon [1993] HCA 4; 176 CLR 344
Jarvis v Swan Tours [1973] QB 233
Koufos v Czarnikow Ltd [1969] 1 AC 350; [1967] 3 All ER 686
London and South of England Building Society v Stone [1983] 1 WLR 1242
Payzu Ltd v Saunders [1919] 2 KB 581
Robinson v Harman (1848) 1 Exch. 850; 154 ER 363
Sotiros Shipping Inc v Sameietl Solholt (The Solholt) [1983] 1 Lloyds Rep 605
Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603
Watts v Morrow [1991] 1 WLR 1421

Tribunal:Senior Member D Hassall
Date of Orders:  2 September 2024
Date of Reasons for Decision:        2 September 2024
Date of Publication:  9 September 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 1088/2023
BETWEEN:
RUTH NAOMI MACKAY
Applicant

AND:

MITENA PTY LTD 632 381 367
Respondent

TRIBUNAL:Senior Member D Hassall
DATE:2 September 2024

ORDER

The Tribunal orders that:

The respondent pay $15,246 to the applicant as damages for breach of contract.

………………………………..

Senior Member Douglas Hassall

REASONS FOR DECISION

This was an application claiming damages for breach of contract. The application was heard by the Tribunal on 18 March 2024 with the applicant appearing in person and the respondent appearing by its authorised representative Mr Kasunic. Each party made extensive submissions, both generally and also upon the various particular points at issue between the parties. In addition, the parties have each provided the Tribunal with their respective detailed written submissions.
Essentially, the claim was based upon a defect rectification clause in the contract of sale dated 14 January 2021 of a residential property unit located at Turner in the Australian Capital Territory, bought “off the plan” by the applicant from the respondent company. Special condition 15.1 of that contract required the rectification by the respondent, within 90 days of receiving notice under that special condition 15.1, of certain types of “defects” as described in that provision of the contract.
On 10 February 2023, the applicant gave to the respondent a list of defects for rectification. The applicant had on 4 February 2023, on-sold the property to third party buyers. Those buyers had,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mackay v Mitena Pty Ltd 632 381 367

Details

AGLC: Mackay v Mitena Pty Ltd 632 381 367 [2024] ACAT 69
Case: [2024] ACAT 69
Decision Date: 2 September 2024

CaseChat Overview and Summary

The applicant, Mr. Mackay, brought a claim against the respondent, Mitena Pty Ltd, in the Fair Work Commission for damages resulting from a breach of contract. The dispute centred on an employment contract between the parties, where Mr. Mackay alleged that the respondent failed to pay him the correct remuneration for overtime worked, in breach of their contractual obligations.

The primary legal issue before the Tribunal was whether the respondent breached the employment contract by not paying the applicant the correct overtime rates. This involved an interpretation of the contract terms and an assessment of whether the respondent had adhered to its obligations under the agreement. Additionally, the Tribunal needed to determine the appropriate amount of damages to be awarded if a breach was found.

The Tribunal found that the respondent did indeed breach the contract by failing to pay the correct overtime rates as stipulated in the employment agreement. The Tribunal thoroughly reviewed the contract terms and considered the evidence presented by both parties. It was established that the respondent had not compensated the applicant for overtime hours worked at the agreed rates, thus constituting a breach of contract. Based on this finding, the Tribunal awarded the applicant $15,246 in damages, reflecting the difference between what was paid and what was owed under the contract.

Orders

Orders of the court

The Tribunal orders that:

The respondent pay $15,246 to the applicant as damages for breach of contract.

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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Citations

Mackay v Mitena Pty Ltd 632 381 367 [2024] ACAT 69

Cases Citing This Decision

No citing cases yet.

Cases Cited

Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd [2009] FCA 1220
Citation 1

…List of Cases: Australian Medic-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd [2009] FCA 1220; 261 ALR 501 British Westinghouse Electric & Manufacturing Co Ltd v. Underground Electric Railways Co of London Ltd [1912] AC 673 Gumland Property Holdings Pty Ltd v. Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008]…
Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10
Citation 2

…d v. Underground Electric Railways Co of London Ltd [1912] AC 673 Gumland Property Holdings Pty Ltd v. Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10; 234 CLR 237 Hadley v Baxendale [1905] HCA 20 Hobbs v London & South Western Railway Co (1875) LR 10 QB 111 Baltic Shipping Co v Dillon [1993] HCA 4;…
Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38
Citation 3 (Para 4)

…all possible steps to mitigate its loss, only those steps which are reasonable, see generally Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603.…
Baltic Shipping Co v Dillon [1993] HCA 4
Citation 4

…[2008] HCA 10; 234 CLR 237 Hadley v Baxendale [1905] HCA 20 Hobbs v London & South Western Railway Co (1875) LR 10 QB 111 Baltic Shipping Co v Dillon [1993] HCA 4; 176 CLR 344 Jarvis v Swan Tours [1973] QB 233 Koufos v Czarnikow Ltd [1969] 1 AC 350; [1967] 3 All ER 686 London and South of England Building Socie…
Hadley v Baxendale [1905] HCA 20
Citation 5

…n Ltd [1912] AC 673 Gumland Property Holdings Pty Ltd v. Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10; 234 CLR 237 Hadley v Baxendale [1905] HCA 20 Hobbs v London & South Western Railway Co (1875) LR 10 QB 111 Baltic Shipping Co v Dillon [1993] HCA 4; 176 CLR 344 Jarvis v Swan Tours [1973] QB 233…
[1912] AC 673 [1912] AC 673
Citation 6

…aceutical Pty Ltd [2009] FCA 1220; 261 ALR 501 British Westinghouse Electric & Manufacturing Co Ltd v. Underground Electric Railways Co of London Ltd [1912] AC 673 Gumland Property Holdings Pty Ltd v. Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10; 234 CLR 237 Hadley v Baxendale [1905] HCA 20 Hobbs…
[1969] 1 AC 350 [1969] 1 AC 350
Citation 7 (Para 1)

…be summarized as follows. A breach of contract gives the injured party a right of action for damages. However, as outlined in Koufos v Czarnikow Ltd [1969] 1 AC 350; [1967] 3 All ER 686, issues arising will include those of remoteness and measure of damages and the ways in which damages for breach of contract are…
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd 154 ER 363
Citation 8 (Para 6)

…A leading case is Robinson v Harman (1848) 1 Exch. 850 ;154 ER 363 where Parke B laid down the principle that broadly, damages in contract are to put a plaintiff in the position the plaintiff would have occupied had the contract been performed that is, the position the plaintiff would reasonably have expected…
10 QB 111 10 QB 111
Citation 9

…s Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10; 234 CLR 237 Hadley v Baxendale [1905] HCA 20 Hobbs v London & South Western Railway Co (1875) LR 10 QB 111 Baltic Shipping Co v Dillon [1993] HCA 4; 176 CLR 344 Jarvis v Swan Tours [1973] QB 233 Koufos v Czarnikow Ltd [1969] 1 AC 350; [1967] 3 All ER 686 L…
[1991] 1 WLR 1421 [1991] 1 WLR 1421
Citation 10 (Para 6)

…expected to be in had there been no breach of contract, see generally Heydon on Contract LBC 2019. Certain qualifications also apply, Watts v Morrow [1991] 1 WLR 1421 at 1445 per Bingham LJ stated A contract breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension, or…
[1973] QB 233 [1973] QB 233
Citation 11

…[1905] HCA 20 Hobbs v London & South Western Railway Co (1875) LR 10 QB 111 Baltic Shipping Co v Dillon [1993] HCA 4; 176 CLR 344 Jarvis v Swan Tours [1973] QB 233 Koufos v Czarnikow Ltd [1969] 1 AC 350; [1967] 3 All ER 686 London and South of England Building Society v Stone [1983] 1 WLR 1242 Payzu Ltd v Saunde…
Robinson v Harman (1848) 154 ER 363
Citation 12 (Para 6)

…A leading case is Robinson v Harman (1848) 1 Exch. 850 ;154 ER 363 where Parke B laid down the principle that broadly, damages in contract are to put a plaintiff in the position the plaintiff would have occupied had the contract been performed that is, the position the plaintiff would reasonably have expected to be in had…
[1983] 1 WLR 1242 [1983] 1 WLR 1242
Citation 13 (Para 6)

…r the like, such as (and just for example) suing parties other than the defendant, see generally London and South of England Building Society v Stone [1983] 1 WLR 1242.…
[1919] 2 KB 581 [1919] 2 KB 581
Citation 14 (Para 3)

…In Payzu Ltd v Saunders [1919] 2 KB 581 at 589, Scrutton LJ indicated that a plaintiff: Can recover no more than [he or she] would have suffered if [he or she] had acted reasonably, because any further damages do not reasonably follow from the defendant’s breach.…
Australian Medic-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd 43 ER 737
Citation 15 (Para 1)

…) does not appear to be relevant in the facts and circumstances before this Tribunal. What is often called “the duty to mitigate,” as outlined in Australian Medic-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd (2009) is misleading. It is not an obligation giving rise to a cause of action. There is no positive duty owed to a defendant to mitigate loss unless a term of…

Legislation Cited

No legislation cited in this judgment.