Legal Research
Cases
Mazurek v Fisniku

Mazurek v Fisniku

Case [2023] NSWCATCD 81 18 July 2023

Civil Litigation & Procedure

Building and Construction

No judgment structure available for this case.

Type to search within this case.

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Mazurek v Fisniku [2023] NSWCATCD 81
Hearing dates: 22 June 2023
Date of orders: 18 July 2023
Decision date: 18 July 2023
Jurisdiction: Consumer and Commercial Division
Before: G Ellis SC, Senior Member
Decision:
(1) By consent, the respondents are to carry out a satisfactory rectification of items referred to in Appendix A (the works).
(2) By consent, Central Coast Certifiers is to be the sole determiner of whether the works have been done in compliance with Order 1.
(3) By consent, the respondents are to bear the costs of Central Coast Certifiers.
(4) By consent, the respondents are to complete the works by 21 July 2023 (the completion date).
(5) By consent, with prior written notice to the applicants, the completion date may be extended to no later than 4 August 2023 where unforeseen events prevent completion of the works by the completion date.
(6) By consent, the applicants have leave to renew the proceedings, in accordance with clause 8(2) of Schedule 4 to the Civil and Administrative Tribunal Act 2013.
(7) The application is otherwise dismissed.
(8) Any application for costs is to be made by filing and serving, by 31 July 2023, submissions (not exceeding five pages), together with any relevant evidence.
(9) Any submissions in response (not exceeding five pages), together with any relevant evidence, are to be filed and served by 14 August 2023.
(10) Any submissions in reply from the party applying for costs (not exceeding two pages), together with any relevant evidence, are to be filed and served on or before 21 August 2023.
(11) Any such submissions should include an indication of whether the party agrees that costs should be determined on the papers, without a further hearing.

Catchwords:
BUILDING AND CONSTRUCTION - Whether costs plus contract replaced by fixed price contract – validity of termination – finding of mutual termination
ESTOPPEL - Promissory estoppel - estoppel by convention
BUILDING AND CONSTRUCTION - Cost of completion - alleged overcharging - storage costs

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW) – ss 38, 60
Civil and Administrative Tribunal Regulation (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW) - rr 38, 39
Civil Procedure Act 2005 (NSW) - s 100
Home Building Act 1989 (NSW) - s 18B

Cases Cited:
Banco de Portugal v Waterlow and Sons [1932] AC 452 at 506
Bonita v Shen [2016] NSWCATAP 159
Browne v Dunn (1893) 6 R. 67, HL
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Limited [1986] HCA 14; 160 CLR 226
Dabbs v Seaman [1925] HCA26; 36 CLR 538
Fox v Percy [2003] HCA 22
Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; 59 CLR 641
Hadley v Baxendale (1854) 9 Exch 341
Hasell v Bagot, Shakes & Lewis Ltd [1911] HCA 62
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313
Latoudis v Casey [1990] HCA 59
L’Estrange v F Graucob Ltd

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 Mazurek v Fisniku

Details

AGLC: Mazurek v Fisniku [2023] NSWCATCD 81
Case: [2023] NSWCATCD 81
Decision Date: 18 July 2023

CaseChat Overview and Summary

The dispute between the applicants, Mazurek, and the respondents, Fisniku, was heard in the Civil and Administrative Tribunal of New South Wales. The primary issue was whether the original costs plus contract for the construction of a home was replaced by a fixed price contract. Additionally, the court had to determine the validity of the termination of the contracts and whether there was a mutual termination. The applicants also argued that the respondents had overcharged for the cost of completion and storage.

The court considered the legal principles of promissory estoppel and estoppel by convention in relation to the contract variation and termination. It also examined the evidence regarding the cost of completion and storage. The court concluded that the original costs plus contract was indeed replaced by a fixed price contract, and that the termination of the contracts was mutual. The court found that there was no overcharging by the respondents. The applicants' claims for costs were dismissed, and the respondents were ordered to complete the works by a specified date, with the possibility of an extension in case of unforeseen events.

The court's orders included the rectification of specified works, the appointment of a certifier to ensure compliance, and the allocation of costs. The applicants were granted leave to renew the proceedings, and a process was established for applications for costs, with specific deadlines for submissions and evidence. The court also provided for the possibility of determining costs on the papers, without a further hearing, if agreed by the parties.

Orders

Orders of the court

(1) By consent, the respondents are to carry out a satisfactory rectification of items referred to in Appendix A (the works).

(2) By consent, Central Coast Certifiers is to be the sole determiner of whether the works have been done in compliance with Order 1.

(3) By consent, the respondents are to bear the costs of Central Coast Certifiers.

(4) By consent, the respondents are to complete the works by 21 July 2023 (the completion date).

(5) By consent, with prior written notice to the applicants, the completion date may be extended to no later than 4 August 2023 where unforeseen events prevent completion of the works by the completion date.

(6) By consent, the applicants have leave to renew the proceedings, in accordance with clause 8(2) of Schedule 4 to the Civil and Administrative Tribunal Act 2013.

(7) The application is otherwise dismissed.

(8) Any application for costs is to be made by filing and serving, by 31 July 2023, submissions (not exceeding five pages), together with any relevant evidence.

(9) Any submissions in response (not exceeding five pages), together with any relevant evidence, are to be filed and served by 14 August 2023.

(10) Any submissions in reply from the party applying for costs (not exceeding two pages), together with any relevant evidence, are to be filed and served on or before 21 August 2023.

(11) Any such submissions should include an indication of whether the party agrees that costs should be determined on the papers, without a further hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Mazurek v Fisniku [2023] NSWCATCD 81

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 21 of 21 shown

Moratic Pty Ltd v Gordon
[2007] NSWSC 5 Para 11

…r Pty Gold Mines Ltd [1937] HCA 58; 59 CLR 641 at 676) and the assumption may be contrary to any contract between them ( Moratic Pty Limited v Gordon [2007] NSWSC 5).…
Fox v Percy
[2003] HCA 22 Para 34

…lusions on contemporary materials, objectively established facts, and the apparent logic of events, consistent with what McHugh J said in Fox v Percy [2003] HCA 22 at [30]-[31].…
Makita (Australia) Pty Ltd v Sprowles
[2001] NSWCA 305 Para 16

…Decisions such as Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ( Makita ) make it clear that, for expert evidence to be accepted (1) the opinion must clearly indicate the facts upon which it is based, (2) those facts must be proved so there is a factual basis for the opinion, (3) reasons or the process of…
Karacominakis v Big Country Developments Pty Ltd
[2000] NSWCA 313 Para 15

…e been had the innocent party acted reasonably: Hasell v Bagot, Shakes & Lewis Ltd [1911] HCA 62, Karacominakis v Big Country Developments Pty Lt d [2000] NSWCA 313 at [187].…
Oshlack v Richmond River Council
[1998] HCA 11 Para 79

…outcome of the case) unless there is disentitling behaviour by the successful party: Latoudis v Casey [1990] HCA 59, Oshlak v Richmond River Council [1998] HCA 11.…
Watson v Foxman
[1995] NSWCA 497 Para 32

…that human memory of what was said in a conversation is fallible for a variety of reasons and may be expected to decrease with time: Watson v Foxman (1995) 49 NSWLR 315 at 319. Further, it is noted that each of the lay witnesses has an interest in the outcome of these proceedings.…
Latoudis v Casey
[1990] HCA 59 Para 79

…r is that costs follow the event (ie follow the outcome of the case) unless there is disentitling behaviour by the successful party: Latoudis v Casey [1990] HCA 59, Oshlak v Richmond River Council [1998] HCA 11.…
Waltons Stores (interstate) Ltd v Maher
[1988] HCA 7 Para 9

…CLR 406, 420-1 (Gibbs CJ and Murphy J), 437 (Mason and Deane JJ). Following what was said by Brennan J in Waltons Stores (Interstate) Limited v Maher [1988] HCA 7; 164 CLR 387 at 428, for the builder’s defence of promissory estoppel to succeed, it must be established that:…
Con-stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd
[1986] HCA 14 Para 10

…lationship: Dabbs v Seaman [1925] HCA26; 36 CLR 538, 549; Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Limited [1986] HCA 14; 160 CLR 226 at 244-5. In the circumstances of this case, the builder must prove that:…
Legione v Hateley
[1983] HCA 11 Para 9

…Promissory estoppel was accepted in Australia by the High Court in Legione v Hateley [1983] HCA 11; 152 CLR 406, 420-1 (Gibbs CJ and Murphy J), 437 (Mason and Deane JJ). Following what was said by Brennan J in Waltons Stores (Interstate) Limited v Maher [1988] HCA 7; 164 CLR 387 at 428, for the builder’s defence…
Taylor v Johnson
[1983] HCA 5 Para 7

…eference to what either of the parties thought or what they intended. Many decisions, such as that of the High Court of Australia in Taylor v Johnson [1983] HCA 5, have held that contract law is concerned not with the subjective intentions of the parties to a contract, but rather with the outward manifestations…
Precision Plastics Pty Ltd v Demir
[1975] HCA 27 Para 33

…While evidence that is not challenged is commonly accepted ( Precision Plastics Pty Ltd v Demir [1975] HCA 27; 132 CLR 372 at 370-371) and while courts often require a party to out its case to the other party’s witnesses ( Browne v Dunn (1893) 6 R. 67, HL), it is plainly unreasonable, a stringent application of…
TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd
[1963] HCA 57 Para 15

…r loss, but the onus is on the other party to show the innocent party acted unreasonably: TC Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd [1963] HCA 57. However, it must be noted that when an innocent party is required to take steps to mitigate, the steps required will not be set too high: Banco de Por…
Grundt v Great Boulder Pty Gold Mines Ltd
[1937] HCA 58 Para 11

…estoppel by convention, the assumption may be contrary to the actual state of affairs between the parties ( Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; 59 CLR 641 at 676) and the assumption may be contrary to any contract between them ( Moratic Pty Limited v Gordon [2007] NSWSC 5).…
McDonald v Dennys Lascelles Ltd
[1933] HCA 25 Para 46

…ased on entitlements which accrued prior to termination can be maintained as only subsequent rights are extinguished: McDonald v Dennys Lascelles Ltd [1933] HCA 25; 48 CLR 475 at 476-7.…
Hasell v Bagot, Shakes & Lewis Ltd
[1911] HCA 62 Para 15

…to mitigate loss, the damages are reduced to what they would have been had the innocent party acted reasonably: Hasell v Bagot, Shakes & Lewis Ltd [1911] HCA 62, Karacominakis v Big Country Developments Pty Lt d [2000] NSWCA 313 at [187].…
Dabbs v Seaman
[1925] HCA 26 Para 10

…Estoppel by convention requires adoption by the parties of an assumption as the basis of their relationship: Dabbs v Seaman [1925] HCA26; 36 CLR 538, 549; Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Limited [1986] HCA 14; 160 CLR 226 at 244-5. In the circumstances of th…
[1932] AC 452
[1932] AC 452 Para 15

…at when an innocent party is required to take steps to mitigate, the steps required will not be set too high: Banco de Portugal v Waterlow and Sons [1932] AC 452 at 506. Where there has been a failure to mitigate loss, the damages are reduced to what they would have been had the innocent party acted reasonably:…
[1934] 2 KB 394
[1934] 2 KB 394 Para 12

…a departure from the well-established starting point that parties are bound by the terms of a signed, written contract ( L’Estrange v F Graucob Ltd [1934] 2 KB 394).…
Browne v Dunn
113 ER 1206 Para 33

…tics Pty Ltd v Demir [1975] HCA 27; 132 CLR 372 at 370-371) and while courts often require a party to out its case to the other party’s witnesses ( Browne v Dunn (1893) 6 R. 67, HL), it is plainly unreasonable, a stringent application of those principles is clearly inappropriate in a Tribunal when one of the parties is…
Hadley v Baxendale
[1854] 154 ER 145 Para 14

…The English decision in Hadley v Baxendale (1854) 9 Exch 341 established that one of two tests for the recovery of damages for a breach of contract be met: (1) damages which may fairly and reasonably considered to arise naturally (first limb); and (2) damages which may reasonably be supposed to have been in the contemplatio…

Legislation cited in this decision · 4

Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 57)
Civil and Administrative Tribunal Rules 2014 (NSW)
1 mention (from Para 74)
Civil Procedure Act 2005 (NSW)
1 mention (from Para 75)
Home Building Act 1989 (NSW)
1 mention (from Para 6)

Medium Neutral Citation:	Mazurek v Fisniku [2023] NSWCATCD 81
Hearing dates:	22 June 2023
Date of orders:	18 July 2023
Decision date:	18 July 2023
Jurisdiction:	Consumer and Commercial Division
Before:	G Ellis SC, Senior Member
Decision:	(1) By consent, the respondents are to carry out a satisfactory rectification of items referred to in Appendix A (the works). (2) By consent, Central Coast Certifiers is to be the sole determiner of whether the works have been done in compliance with Order 1. (3) By consent, the respondents are to bear the costs of Central Coast Certifiers. (4) By consent, the respondents are to complete the works by 21 July 2023 (the completion date). (5) By consent, with prior written notice to the applicants, the completion date may be extended to no later than 4 August 2023 where unforeseen events prevent completion of the works by the completion date. (6) By consent, the applicants have leave to renew the proceedings, in accordance with clause 8(2) of Schedule 4 to the Civil and Administrative Tribunal Act 2013. (7) The application is otherwise dismissed. (8) Any application for costs is to be made by filing and serving, by 31 July 2023, submissions (not exceeding five pages), together with any relevant evidence. (9) Any submissions in response (not exceeding five pages), together with any relevant evidence, are to be filed and served by 14 August 2023. (10) Any submissions in reply from the party applying for costs (not exceeding two pages), together with any relevant evidence, are to be filed and served on or before 21 August 2023. (11) Any such submissions should include an indication of whether the party agrees that costs should be determined on the papers, without a further hearing.
Catchwords:	BUILDING AND CONSTRUCTION - Whether costs plus contract replaced by fixed price contract – validity of termination – finding of mutual termination ESTOPPEL - Promissory estoppel - estoppel by convention BUILDING AND CONSTRUCTION - Cost of completion - alleged overcharging - storage costs
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) – ss 38, 60 Civil and Administrative Tribunal Regulation (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) - rr 38, 39 Civil Procedure Act 2005 (NSW) - s 100 Home Building Act 1989 (NSW) - s 18B
Cases Cited:	Banco de Portugal v Waterlow and Sons [1932] AC 452 at 506 Bonita v Shen [2016] NSWCATAP 159 Browne v Dunn (1893) 6 R. 67, HL Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Limited [1986] HCA 14; 160 CLR 226 Dabbs v Seaman [1925] HCA26; 36 CLR 538 Fox v Percy [2003] HCA 22 Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; 59 CLR 641 Hadley v Baxendale (1854) 9 Exch 341 Hasell v Bagot, Shakes & Lewis Ltd [1911] HCA 62 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 Latoudis v Casey [1990] HCA 59 L’Estrange v F Graucob Ltd