Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Opal Construction Group Pty Ltd v Christoff [2025] NSWCATCD 127 Hearing dates: 16, 17 and 18 July 2024 (submissions to 27 September 2024) Date of orders: 3 February 2025 (Amended 22 August 2025) Decision date: 03 February 2025 Jurisdiction: Consumer and Commercial Division Before: R C Titterton OAM, Senior Member Decision: The Tribunal makes the following amended orders under section 63 of the Civil Administrative Tribunal Act 2013:
(1) On or before 17 February 2025, the parties are to provide an agreed version of draft short minutes of order which complete the following proposed draft orders in (a), (b), (c) and (d) below in respect of the agreed reliance damages:
(a) In matter 2023/00390181, on or before 3 March 2025, the respondents are to pay the applicant the sum of $3093.74.
(b) Matter 2023/00390181 is otherwise dismissed.
(c) In matter 2023/00390707, on or before 3 March 2025, the respondents are to pay the applicant the sum of $3093.74.
(d) Matter 2023/00390707 is otherwise dismissed.
(2) Costs are reserved.
(3) Any party seeking costs should file submissions and if necessary evidence on or before 3 March 2025.
(4) The other party may respond on or before 17 March 2025.
(5) The moving party(ies) may reply on or before 23 March 2025.
(6) Submissions are to be limited to 5 pages (not including any evidence).
Catchwords: BULDING AND CONSTRUCTION – expectation damages – whether expert reports have proper factual foundation
Cases Cited: Commonwealth of Australia v Amann Aviation (1991) 174 CLR 64
Construction & Design Australia Pty Ltd v Robinson (No 2) [2024] NSWSC 376
Dyna Constructions Pty Ltd v Bocco Developments Pty Ltd [2021] NSWDC 507
Epperson v Dampney (1976) 10 ALR
JLW (Vic) Pty Ltd v Tsiloglou and Others [1994] VicRp 16; [1994] 1 VR 237
Malone on behalf of the Western Kangoulu People v State of Queensland (2021) 287 FCR 240
Mikhail v JJ Built This Pty Ltd [2021] NSWCATAP 159
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
North Sydney Leagues Club Limited v Synergy Protection Agency Pty Limited [2012] NSWCA 168
North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd (formerly Joseph Merhi Industries Pty Ltd) t/as Synergy Protection Agency [2011] NSWSC 286
Pacific Wireless Pty Ltd v Breeze Logistics Australia Pty Ltd [2019] VSC 64
R Developments Pty Ltd v Forth [2016] ACTSC 8
Troulis v Vamvoukakis [1998] NSWCA 237
Web Offset Printers Ltd v Independent Media Ltd [1996] CLC 77
Western Kangoulu People v State of Queensland (2021) 287 FCR 240; [2021] FCAFC 176
Texts Cited: Halsbury’s Laws of Australia, online edition
McGregor on Damages, 22nd Edition
Rawlinsons, Australian Construction Handbook 2023
Category: Principal judgment Parties: Opal Construction Group Pty Ltd, Applicant
L Christoff and H Rake, RespondentsRepresentation: Counsel:
Applicant, A Hopkins
Solicitors:
Respondent, S Ipp
Applicant, Reuben George Lawyers
Respondent, ABW Lawyers
File Number(s):
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- AGLC
- Opal Construction Group Pty Ltd v Christoff [2025] NSWCATCD 127
- Case
- [2025] NSWCATCD 127
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether the expert reports submitted by the applicants had a proper factual foundation to support the claimed expectation damages. The court had to assess the adequacy of the factual basis provided in the expert reports to determine if they were reliable and sufficient to substantiate the damages claimed. The court also needed to consider whether the expert evidence was necessary and whether the applicants could have established their case without it.
The Tribunal found that the expert reports did not have a proper factual foundation. The reports were based on assumptions that were not adequately supported by the evidence presented. The Tribunal concluded that the applicants had not provided sufficient factual information to underpin the expert's calculations and conclusions. As a result, the applicants were unable to rely on the expert reports to establish their entitlement to expectation damages. The Tribunal dismissed the claims for reliance damages and ordered that the applicants pay the respondents' costs.
The Tribunal made amended orders under section 63 of the Civil Administrative Tribunal Act 2013. The applicants were ordered to pay the respondents' costs, and the claims for reliance damages were dismissed. The Tribunal also set timelines for the parties to provide an agreed version of draft short minutes of order and to file submissions on costs.
Orders
Orders of the court
The Tribunal makes the following amended orders under section 63 of the Civil Administrative Tribunal Act 2013:
(1) On or before 17 February 2025, the parties are to provide an agreed version of draft short minutes of order which complete the following proposed draft orders in (a), (b), (c) and (d) below in respect of the agreed reliance damages:
(a) In matter 2023/00390181, on or before 3 March 2025, the respondents are to pay the applicant the sum of $3093.74.
(b) Matter 2023/00390181 is otherwise dismissed.
(c) In matter 2023/00390707, on or before 3 March 2025, the respondents are to pay the applicant the sum of $3093.74.
(d) Matter 2023/00390707 is otherwise dismissed.
(2) Costs are reserved.
(3) Any party seeking costs should file submissions and if necessary evidence on or before 3 March 2025.
(4) The other party may respond on or before 17 March 2025.
(5) The moving party(ies) may reply on or before 23 March 2025.
(6) Submissions are to be limited to 5 pages (not including any evidence).
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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