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Pickett v Savage

Pickett v Savage

Case [2024] NSWCATCD 19 29 January 2024

Breach of Contract

Repudiation & Termination

Compensatory Damages

Contract Law

No judgment structure available for this case.

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Pickett v Savage [2024] NSWCATCD 19
Hearing dates: 30 October 2023
Date of orders: 29 January 2024
Decision date: 29 January 2024
Jurisdiction: Consumer and Commercial Division
Before: G Sarginson, Senior Member
Decision:
(1) The application is dismissed.

Catchwords:
BUILDING AND CONSTRUCTION---Home building---Termination of contract---Repudiation---Defective work---Unlicensed and uninsured work---Assessment of damages---Adequacy of evidence of loss

Legislation Cited:
Australian Consumer Law 2010 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Fair Trading Act 1987 (NSW).
Home Building Act 1989 (NSW)
Home Building Regulation 2014 (NSW)
Queensland Building and Construction Commission Act 1991 (Qld)

Cases Cited:
Alati v Kruger (1955) 94 CLR 216; [1955] HCA 64
Bauskis v Liew [2013] NSWCA 297
Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184
Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36
Cachia v Haines (1994) 179 CLR 403; [1994] HCA 14
Curtis v Potter & Co Pty Ltd t/as The Africa Safari Co [2016] NSWCATAP 196
Equuscorp Pty Ltd v Glengallen Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55
Halil v NSW Land and Housing Corporation (No 2) [2023] NSWSC 1646
Hamod v State of New South Wales [2011] NSWCA 375
John McDonald Building Services Pty Ltd v Gusa [2022] NSWCATAP 60
Jubian v Clark; Clark v Jubian [2016] NSWCATAP 56
Khan v Kang [2014] NSWCATAP 48
Mendonca v Legal Services Commissioner [2020] NSWCA 84
Millen v Skyview Homes Pty Ltd [2021] NSWCATCD 137
Mills v Walsh [2022] NSWCA 255
Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 2) [2022] NSWSC 561
Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235
Murphy v Zubkrycki & Anor [2020] NSWDC 538
Pollock v NSW Trustee & Guardian [2022] NSWSC 923
Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41
Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31
SDL Project Solutions Pty Ltd v Kim; Kim v SDL Project Solutions Pty Ltd [2022] NSWCATCD 10
Sleiman t/as Perfect Kitchens v Dempsey [2020] NSWCATAP 26
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228

Texts Cited:
None cited

Category: Principal judgment
Parties: Luke Pickett and Eliza Pickett (Applicants)
Shaun Savage (Respondent)
Representation: L. Pickett, self-represented (Applicants)
S. Savage, self-represented (Respondent)

File Number(s): 2023/00409756 (Previously HB 23/07571)
Publication restriction: Nil

REASONS FOR DECISION

This is a dispute involving residential building work. The work the subject of the dispute is structural landscaping work. The Tribunal has jurisdiction in the matter by reason of ss 48A and 48K of the Home Building Act 1989 (NSW) (HB Act).
The applicants raised causes of action under both the HB Act and the Australian Consumer Law 2010 (NSW) (ACL). The Tribunal also has jurisdiction to consider ACL causes of action in the context of a dispute involving residential building work (John McDonald…

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 Pickett v Savage

Details

AGLC: Pickett v Savage [2024] NSWCATCD 19
Case: [2024] NSWCATCD 19
Decision Date: 29 January 2024

CaseChat Overview and Summary

In the matter of Pickett v Savage, the dispute arose between the plaintiff, Pickett, and the defendant, Savage, concerning a home building contract. The crux of the disagreement involved the termination of the contract by the plaintiff due to alleged repudiation by the defendant. The plaintiff claimed that the defendant had engaged in defective work, operated without the necessary licenses, and lacked insurance. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether the defendant's actions constituted a repudiation of the contract, the adequacy of the plaintiff's evidence in demonstrating the loss incurred due to the alleged defective work, and the appropriateness of the termination of the contract by the plaintiff. Additionally, the court had to determine whether the damages claimed by the plaintiff were adequately supported by evidence and whether the termination was justified.

The court found that the defendant's actions did not constitute a repudiation of the contract, as there was no clear and unequivocal statement or conduct by the defendant that demonstrated an inability or unwillingness to perform the contract. The court also determined that the plaintiff's evidence of loss was insufficient to support the claims made. The termination of the contract by the plaintiff was deemed unjustified, and the damages claimed were not adequately supported by the evidence presented. Consequently, the court dismissed the application.

The court's final order was that the application by the plaintiff to terminate the contract and claim damages was dismissed. The defendant was not found to have repudiated the contract, and the plaintiff's evidence of loss and claim for damages were not upheld.

Orders

Orders of the court

(1) The application is dismissed.

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.

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Citations

Pickett v Savage [2024] NSWCATCD 19

Most Recent Citation

The Owners - Strata Plan 69205 v Community Association DP 270244 (No. 3) [2025] NSWCATCD 105

Cases Citing This Decision

The Owners - Strata Plan 69205 v Community Association DP 270244 (No. 3) [2025] NSWCATCD 105
Citation 1 (Para 4)

…69205 v Community Association DP 270244 [2024] NSWCATCD 29 January 2024 2. The Owners-Strata Plan 69205 v Community Association DP 270244 (No.2) [2024] NSWCATCD 19 April 2024…

See all citing cases →

Cases Cited

Halil v NSW Land and Housing Corporation (No 2) [2023] NSWSC 1646
Citation 1 (Para 98)

…Chen J aptly described this task in Halil v NSW Land and Housing Corporation (No 2) [2023] NSWSC 1646 at [63] as “to fairly and justly identify the nub of what was sought to be argued”.…
Mills v Walsh [2022] NSWCA 255
Citation 2 (Para 196)

…L for misleading and deceptive conduct involving representations about being duly licensed was considered by the NSW Court of Appeal in Mills v Walsh [2022] NSWCA 255 ( Mills v Walsh ).…
Pollock v NSW Trustee & Guardian [2022] NSWSC 923
Citation 3 (Para 155)

…In respect of proving a fact on the balance of probabilities, Hallen J in Pollock v NSW Trustee & Guardian [2022] NSWSC 923 summarised the applicable authorities as follows at [74]-[75]:…
Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 2) [2022] NSWSC 561
Citation 4 (Para 141)

…to form a contract, Payne JA summarised the relevant principles in Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 2) [2022] NSWSC 561 as follows (at [363]-[364]):…
Delaney v Delaney [2022] VSCA 48
Citation 5 (Para 57)

…rby v Goldberg (1964) 112 CLR 597 at 607; [1964] HCA 41 (Menzies J). As explained recently by the Victorian Court of Appeal in Delaney v Delaney [2022] VSCA 48 at [57]: “… The essential terms commonly (although not always) include terms identifying the parties, subject matter, consideration or price, and date(s)…
SDL Project Solutions Pty Ltd v Kim; Kim v SDL Project Solutions Pty Ltd [2022] NSWCATCD 10
Citation 6 (Para 13)

…ts; and the inherent probabilities and improbabilities of purported events ( SDL Project Solutions Pty Ltd v Kim; Kim v SDL Project Solutions Pty Ltd [2022] NSWCATCD 10 ( SDL v Kim ) at [248] and the authorities referred to therein).…
Millen v Skyview Homes Pty Ltd [2021] NSWCATCD 137
Citation 7 (Para 206)

…ntract, as distinct from the effects of defective work (see Murphy v Zubkrycki & Anor [2020] NSWDC 538 at [157]-[163]; Millen v Skyview Homes Pty Ltd [2021] NSWCATCD 137 at [121]-[125]) the evidence of Mr Pickett does not establish distress and inconvenience sufficient to make an award of general damages in favour of…
Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31
Citation 8 (Para 105)

…ent evidence that loss has been caused by the breach of contract (or ACL) of the respondent (S abouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 at [41]-[42] summarising the applicable legal principles regarding whether there has been sufficient proof of loss).…
Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235
Citation 9 (Para 96)

…d litigant has not missed some arguable point”: Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21]; Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [42].…
Murphy v Zubkrycki [2020] NSWDC 538
Citation 10 (Para 206)

…ess and inconvenience could be brought for repudiation of the contract, as distinct from the effects of defective work (see Murphy v Zubkrycki & Anor [2020] NSWDC 538 at [157]-[163]; Millen v Skyview Homes Pty Ltd [2021] NSWCATCD 137 at [121]-[125]) the evidence of Mr Pickett does not establish distress and inconve…
Mendonca v Legal Services Commissioner [2020] NSWCA 84
Citation 11 (Para 96)

…sconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point”: Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21]; Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [42].…
Curnow Consulting Pty Ltd v JPD Media and Design Pty Ltd t/as Durie Design [2017] NSWSC 1171
Citation 12 (Para 344)

…v Comboyuro Investments Pty Ltd [1976] HCA 21; (1976) 136 CLR 444 at 453; Curnow Consulting Pty Ltd v JPD Media and Design Pty Ltd t/as Durie Design [2017] NSWSC 1171 at [344]. It is axiomatic that to terminate a contract based on repudiatory conduct, the first step is to identify the specific purported repudiatory…
Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228
Citation 13 (Para 3)

…There are a number of QCAT authorities commencing with the decision of Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228 that, by reason of licensing and insurance obligations on builders and tradespersons under the Queensland Building and Construction Commission Act 1991 (Qld) there is an implied term in building c…
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26
Citation 14

…ached present agreement “upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations”: Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 at [57] (Gageler J), quoting Lord Clarke of Stone-cum-Ebony JSC in RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG…
DCT Projects Pty Ltd v Champion Homes Sales Pty Ltd [2016] NSWCA 117
Citation 15

…In DCT Projects Pty Limited v Champion Homes Sales Pty Limited [2016] NSWCA 117, the NSW Court of Appeal summarised the principles applicable to repudiation as follows at [39]-[42]: For the conduct of a party to constitute a renunciation of its contractual obligations it must be shown that the party is either unwil…
Re Hair Industrie Penrith Pty Ltd, Hair Industrie Merrylands Pty Ltd [2015] NSWSC 1578
Citation 16 (Para 20)

…could have been adduced, but was not. I followed that decision in Re Hair Industrie Penrith Pty Ltd, Hair Industrie Merrylands Pty Ltd [2015] NSWSC 1578 at [20], on which I have drawn for the summary which appears above.…
G MacFayden and Anor v G Tadrosse [2014] NSWCATCD 194
Citation 17 (Para 46)

…each of statutory warranty. In our view, the relevant principle was succinctly stated by Senior Member Goldstein in G MacFayden and Anor v G Tadrosse [2014] NSWCATCD 194 at [46] as follows: …[E]vidence that work does not comply with the Building Code of Australia would establish a basis for a finding that sub section…
Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2013] FCA 1071
Citation 18

…Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 wrote at [48]: “When proof of any fact is required, the court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Me…
Bauskis v Liew [2013] NSWCA 297
Citation 19 (Para 96)

…giving legal advice or conducting the case on behalf of one party ( Hamod v State of New South Wales [2011] NSWCA 375 at [309]-[312]; Bauskis v Liew [2013] NSWCA 297 at [66]-[70]). The Tribunal is not, however, “is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions…
Ballard v Multiplex [2012] NSWSC 426
Citation 20 (Para 126)

…n question was more likely than not to have occurred; with “a probability in excess of 50%”. His Honour repeated that view in Ballard v Multiplex [2012] NSWSC 426 at [126].…
Hamod v New South Wales [2011] NSWCA 375
Citation 21 (Para 96)

…procedural fairness to both parties and without giving legal advice or conducting the case on behalf of one party ( Hamod v State of New South Wales [2011] NSWCA 375 at [309]-[312]; Bauskis v Liew [2013] NSWCA 297 at [66]-[70]). The Tribunal is not, however, “is not required to undertake a partisan analysis of len…
Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123
Citation 22 (Para 48)

…Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 wrote at [48]: “When proof of any fact is required, the court must feel an actual persuasion of the occurrence or existence of that fact before it can be found.…
Janos v Chama Motors Pty Ltd [2011] NSWCA 238
Citation 23 (Para 73)

…epudiation and subsequent termination: Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248 at [73]; Janos v Chama Motors Pty Ltd [2011] NSWCA 238 at [23]; Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537. The commencement of proceedings and/or the service of an appropriate pleading can act…
Almond Investors Ltd v Kualitree Nursery Pty Ltd [2011] NSWCA 198
Citation 24 (Para 62)

…ng the essential terms of the contract altogether: Rawson v Hobbs [1961] HCA 72; 107 CLR 466 at 481; Almond Investors Ltd v Kualitree Nursery Pty Ltd [2011] NSWCA 198 at [62] (Bathurst CJ; Giles JA and Handley AJA agreeing). It is well accepted that factual inability must be proved “in fact and not in supposition”:…
Cooper v Kinsella [2011] NSWCA 45
Citation 25 (Para 70)

…at an end is sufficient: see Vitol SA v Norelf Ltd [1996] AC 800; 3 All ER 193 at 200 per Lord Steyn, and cited with approval in Cooper v Kinsella [2011] NSWCA 45 at [70]. Secondly, where the innocent party has by conduct elected to treat the contract as at an end, it is sufficient that the fact of election comes…
McCrohon v Harith [2010] NSWCA 67
Citation 26 (Para 128)

…dictate that … a figure should be plucked out of the air”. That decision has been approved in subsequent cases, including McCrohan v Harith [2010] NSWCA 67 at [128], where McColl JA (with whom Campbell JA and Handley AJA agreed) held that an estimate of damages, in the nature of a “guess”, should not be made where…
Wheeler v Ecroplot Pty Ltd [2010] NSWCA 61
Citation 27 (Para 10)

…the Guide are of significant relevance in establishing whether work has been performed in a proper and workmanlike manner (Wheeler v Ecroplot Pty Ltd [2010] NSWCA 61 at [10]), the absence of such evidence does not automatically mean a homeowner has failed to establish breach of statutory warranty. In our view, the…
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Citation 28

…In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, speaking with the concurrence of McColl and Bell JJA, McDougall J, similarly, had expressed the view, at [44]-[52], that proof on the balance of probabilities required a feeling of actual persuasion; that the event in question was more likely than not to have occurre…
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61
Citation 29

…d v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; 166 CLR 623 at 634, 647-648, 658; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; 233 CLR 115 ( Koompahtoo ) at [44]. Repudiation is a serious matter and is not to be lightly found or inferred: Shevill at 633 (Wilson J). Where ina…
Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31
Citation 30 (Para 135)

…v Amann Aviation Pty Ltd above at 83, per Mason CJ and Dawson J, 125 per Deane J, 153 per Gaudron J. In Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 at [135], Beazley JA observed that: “Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss i…
Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248
Citation 31 (Para 73)

…s communication of the innocent party’s acceptance of repudiation and subsequent termination: Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248 at [73]; Janos v Chama Motors Pty Ltd [2011] NSWCA 238 at [23]; Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537. The commencement of proceedings…
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55
Citation 32 (Para 47)

…he subjective views of the parties as to what they thought was the agreement ( Equuscorp Pty Ltd v Glengallen Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 at [34]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [38]).…
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52
Citation 33 (Para 47)

…corp Pty Ltd v Glengallen Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 at [34]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [38]).…
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10
Citation 34 (Para 38)

…bly available to the parties: State of New South Wales v Moss (2000) 54 NSWLR 536 at [72]; Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768 at [38]. In Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 319, Pincus J noted that “if the evidence called on behalf of [the plain…
State of New South Wales v Moss [2000] NSWCA 133
Citation 35

…case law also recognises that damages must be proved with a degree of precision which reflects the proof that is reasonably available to the parties: State of New South Wales v Moss (2000) 54 NSWLR 536 at [72]; Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768 at [38]. In Schindler Lifts Australia Pty Ltd v D…
Troulis v Vamvoukakis [1998] NSWCA 237
Citation 36

…t approach was approved by Brooking J in JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 at 243 and by the Court of Appeal in Troulis v Vamvoukakis [1998] NSWCA 237 where Gleeson CJ observed that, where damages were susceptible of evidentiary proof, but there was an absence of raw material to which good sense may be…
Cachia v Hanes [1994] HCA 14
Citation 37 (Para 4)

…y a self-represented litigant, not reimbursement for time spent in preparing for and attending a hearing ( Cachia v Haines (1994) 179 CLR 403 at 411; [1994] HCA 14; Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41 at [21]).…
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54
Citation 38

…adequate compensation for the loss or injury” which it sustained by reason of that breach or repudiation: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 116 per Deane J. The Court must do the best it can to make a reliable assessment of damages, where damages are difficult to assess, including where a pa…
Foran v Wight [1989] HCA 51
Citation 39

…rior to performance being due, a party manifests an inability or unwillingness to perform the contract at all or in substance: Foran v Wright (1989) 168 CLR 385 at 441. In this case, the other party may terminate forthwith: Cheshire and Fifoot at 21.13. Actual breach may also amount to repudiation whether or not the…
Schindler Lifts Australia Pty Ltd v Debelak [1989] FCA 439
Citation 40

…LR 536 at [72]; Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768 at [38]. In Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 319, Pincus J noted that “if the evidence called on behalf of [the plaintiff] fails to provide any rational foundation for a proper estimate of da…
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23
Citation 41

…ill v Builders Licensing Board [1982] HCA 47; 149 CLR 620 ( Shevill ) at 625-626 (Gibbs CJ); Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; 166 CLR 623 at 634, 647-648, 658; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; 233 CLR 115 ( Koompahtoo ) at [44]. Repu…
Shevill v Builders Licensing Board [1982] HCA 47
Citation 42

…tends to fulfil the contract only in a manner substantially inconsistent with its obligations and in no other way: Shevill v Builders Licensing Board [1982] HCA 47; 149 CLR 620 ( Shevill ) at 625-626 (Gibbs CJ); Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; 166 CLR 623 at 634, 647-648,…
Perri v Coolangatta Investments Pty Ltd [1982] HCA 29
Citation 43

…Beckhaus Civil Pty Ltd [2005] NSWCA 248 at [73]; Janos v Chama Motors Pty Ltd [2011] NSWCA 238 at [23]; Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537. The commencement of proceedings and/or the service of an appropriate pleading can act as either the election to treat the contract as at an end, or the co…
Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21
Citation 44

…illingness on the part of the party who has wrongfully terminated to perform its obligations under the contract: Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21; (1976) 136 CLR 444 at 453; Curnow Consulting Pty Ltd v JPD Media and Design Pty Ltd t/as Durie Design [2017] NSWSC 1171 at [344]. It is axiomatic th…
Thorby v Goldberg [1964] HCA 41
Citation 45

…Müller GmbH & Co KG (UK Production) [2010] 1 WLR 753 at 771 [45]; [2010] 3 All ER 1 at 18; see also Thorby v Goldberg (1964) 112 CLR 597 at 607; [1964] HCA 41 (Menzies J). As explained recently by the Victorian Court of Appeal in Delaney v Delaney [2022] VSCA 48 at [57]: “… The essential terms commonly (although…
Rawson v Hobbs [1961] HCA 72
Citation 46

…n is that the party in question has become wholly and finally disabled from performing the essential terms of the contract altogether: Rawson v Hobbs [1961] HCA 72; 107 CLR 466 at 481; Almond Investors Ltd v Kualitree Nursery Pty Ltd [2011] NSWCA 198 at [62] (Bathurst CJ; Giles JA and Handley AJA agreeing). It i…
Alati v Kruger [1955] HCA 64
Citation 47 (Para 174)

…ght to rescind the contract and be awarded damages on the basis of principle of restitutio in integrum ( Alati v Kruger (1955) 94 CLR 216 at 223-224; [1955] HCA 64).…
Bellgrove v Eldridge [1954] HCA 36
Citation 48 (Para 164)

…ly performed, so that the applicants were not put in a better position than had the contract been performed ( Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36 at [5]-[6]; Sleiman t/as Perfect Kitchens v Dempsey [2020] NSWCATAP 26).…
Briginshaw v Briginshaw [1938] HCA 34
Citation 49

…e court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2; [1938] HCA 34; [1938] ALR 334 at 342.”…
Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21
Citation 50

…reference to conduct constituting breach which it had not relied on at the time of termination: Shepherd and Felt & Textiles of Australia Ltd [1931] HCA 21, 41 CLR 359 (Shepherd) at 377-8, referred to by Handley AJA in Sarker at [28]. It is not sufficient, however, that a party’s conduct be repudiatory. The cont…

Legislation Cited

Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 7)
Crimes Act 1900 (ACT)
1 mention (from Para 5)
Environmental Planning and Assessment Act 1979 (NSW)
1 mention
Fair Trading Act 1987 (WA)
1 mention (from Para 2)
Home Building Act 1989 (NSW)
1 mention (from Para 1)
Queensland Building and Construction Commission Act 1991 (Qld)
1 mention (from Para 3)

Medium Neutral Citation:	Pickett v Savage [2024] NSWCATCD 19
Hearing dates:	30 October 2023
Date of orders:	29 January 2024
Decision date:	29 January 2024
Jurisdiction:	Consumer and Commercial Division
Before:	G Sarginson, Senior Member
Decision:	(1) The application is dismissed.
Catchwords:	BUILDING AND CONSTRUCTION---Home building---Termination of contract---Repudiation---Defective work---Unlicensed and uninsured work---Assessment of damages---Adequacy of evidence of loss
Legislation Cited:	Australian Consumer Law 2010 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Fair Trading Act 1987 (NSW). Home Building Act 1989 (NSW) Home Building Regulation 2014 (NSW) Queensland Building and Construction Commission Act 1991 (Qld)
Cases Cited:	Alati v Kruger (1955) 94 CLR 216; [1955] HCA 64 Bauskis v Liew [2013] NSWCA 297 Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184 Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36 Cachia v Haines (1994) 179 CLR 403; [1994] HCA 14 Curtis v Potter & Co Pty Ltd t/as The Africa Safari Co [2016] NSWCATAP 196 Equuscorp Pty Ltd v Glengallen Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 Halil v NSW Land and Housing Corporation (No 2) [2023] NSWSC 1646 Hamod v State of New South Wales [2011] NSWCA 375 John McDonald Building Services Pty Ltd v Gusa [2022] NSWCATAP 60 Jubian v Clark; Clark v Jubian [2016] NSWCATAP 56 Khan v Kang [2014] NSWCATAP 48 Mendonca v Legal Services Commissioner [2020] NSWCA 84 Millen v Skyview Homes Pty Ltd [2021] NSWCATCD 137 Mills v Walsh [2022] NSWCA 255 Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 2) [2022] NSWSC 561 Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 Murphy v Zubkrycki & Anor [2020] NSWDC 538 Pollock v NSW Trustee & Guardian [2022] NSWSC 923 Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41 Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 SDL Project Solutions Pty Ltd v Kim; Kim v SDL Project Solutions Pty Ltd [2022] NSWCATCD 10 Sleiman t/as Perfect Kitchens v Dempsey [2020] NSWCATAP 26 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Luke Pickett and Eliza Pickett (Applicants) Shaun Savage (Respondent)
Representation:	L. Pickett, self-represented (Applicants) S. Savage, self-represented (Respondent)
File Number(s):	2023/00409756 (Previously HB 23/07571)
Publication restriction:	Nil