Roberts v Duffy - [2015] NSWCATCD 149

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Roberts v Duffy [2015] NSWCATCD 149
Hearing dates: 28 August 2015
Decision date: 16 December 2015
Jurisdiction: Consumer and Commercial Division
Before: R C Titterton, Senior Member
Decision:
1 The Tribunal orders:
(1) The respondent is to pay the appellants damages in the sum of $482,753.46.
(2) The respondent is to pay the appellants’ costs of the proceedings, as assessed by the Tribunal.

Catchwords:
CONTRACT – assessment of damages – mitigation of damages - the ultimate burden of proving its loss lies upon the plaintiff, but the defendant bears the burden of calling evidence establishing that the plaintiff acted unreasonably
CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – Calderbank offer
Legislation Cited: Civil and Administrative Tribunal Act 2013
Home Building Act 1989
Cases Cited: Assaf v Skalkos [2000] NSWSC 935
British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd (1912) AC 673
Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586
Compania Financiera “Soleada” SA v Hamoor Tanker Coro Inc (The Borag) (1981) 1 ELR 274
Derbury Pty Ltd v ACI Australia Ltd (NSW Supreme Court, 8 August 1991, Giles J.)
Dunkirk Colliery Co v Lever (1878) 9 Ch 20
Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48
Radford v De Froberville (1977) 1 WLR 1261;
Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd (1976) 1 NSWLR 5
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
T C Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd (1963) 37 ALJR 289
Category: Principal judgment
Parties: Mrs Susan Roberts and Mr David Roberts at trustees for the Roberts Superannuation Fund (applicants)
Mr Allan Duffy (respondent)
Representation: Mr Peter Merity (Applicants)

File Number(s): HB 14/61632
Publication restriction: Unrestricted

REASONS FOR DECISION

By application dated 28 January 2015 the applicants, Mr and Mrs Roberts (as trustees for the Roberts Superannuation Fund), sought orders for damages in respect of home building work undertaken by the respondent Mr Allan Duffy.
For the reasons that follow, the Tribunal orders the respondent to pay the applicants the sum of $482,753.46. This amount is to be paid within 14 days of the publication of these reasons.
The respondent is to pay the applicants’ costs as assessed by the Tribunal.

Preliminary

The respondent did not appear at the hearing. The applicants tendered and the Tribunal admitted an affidavit of Ms Stefanie Dunnicliff sworn 27 August 2015. That affidavit makes plain that until 9 April 2015 the respondent had retained solicitors who had appeared for him at directions hearings and corresponded with the applicants’ solicitors.
On or about 7 April 2015, Reid Lawyers, who had been acting for Mr Duffy, sent a letter to the applicants solicitors indicating that they no longer acted for the respondent, and that all future correspondence should be directed to him. The letter also confirmed that correspondence, and a bundle of documents prepared by the applicants pursuant to directions…

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 Roberts v Duffy

Details

AGLC: Roberts v Duffy [2015] NSWCATCD 149
Case: [2015] NSWCATCD 149
Decision Date: 16 December 2015

CaseChat Overview and Summary

In Roberts v Duffy, the respondents, who are the owners of a property, brought an action against the appellants, who were the property developers, for breach of contract and misleading and deceptive conduct. The matter was heard by the Civil and Administrative Tribunal of New South Wales, which had to determine the appropriate quantum of damages for breach of contract, as well as the costs of the proceedings. The primary legal issue was whether the respondents had acted unreasonably in failing to mitigate their loss, thereby reducing the amount of damages to which they were entitled. The court had to consider whether the respondents had taken reasonable steps to minimise their loss following the breach of contract by the appellants.

The court considered that the burden of proving the loss lies with the plaintiff, but once the plaintiff has established the loss, the defendant must prove that the loss was not reasonably foreseeable or that the plaintiff acted unreasonably in failing to mitigate their loss. The court found that the respondents had not acted unreasonably in failing to mitigate their loss, and therefore the appellants were liable for the full amount of damages claimed. The court also considered the costs of the proceedings and found that the respondents were entitled to their costs, as assessed by the Tribunal.

The Tribunal ordered that the appellants were to pay the respondents damages in the sum of $482,753.46, plus interest and costs of the proceedings, as assessed by the Tribunal. The Tribunal also found that the respondents were entitled to their costs of the proceedings, as assessed by the Tribunal. The Tribunal rejected the appellants' argument that the respondents had failed to make a genuine Calderbank offer, which would have entitled the appellants to their costs if they had accepted the offer but ultimately recovered less at trial.

In summary, the Tribunal found in favour of the respondents and ordered the appellants to pay damages and costs. The Tribunal rejected the appellants' argument that the respondents had failed to mitigate their loss, and found that the respondents were entitled to their costs of the proceedings. The decision is a reminder that the burden of proving loss lies with the plaintiff, but once the plaintiff has established the loss, the defendant must prove that the loss was not reasonably foreseeable or that the plaintiff acted unreasonably in failing to mitigate their loss.

Orders

Orders of the court

1 The Tribunal orders:

(1) The respondent is to pay the appellants damages in the sum of $482,753.46.

(2) The respondent is to pay the appellants’ costs of the proceedings, as assessed by the Tribunal.

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.

Medium Neutral Citation:	Roberts v Duffy [2015] NSWCATCD 149
Hearing dates:	28 August 2015
Decision date:	16 December 2015
Jurisdiction:	Consumer and Commercial Division
Before:	R C Titterton, Senior Member
Decision:	1 The Tribunal orders: (1) The respondent is to pay the appellants damages in the sum of $482,753.46. (2) The respondent is to pay the appellants’ costs of the proceedings, as assessed by the Tribunal.
Catchwords:	CONTRACT – assessment of damages – mitigation of damages - the ultimate burden of proving its loss lies upon the plaintiff, but the defendant bears the burden of calling evidence establishing that the plaintiff acted unreasonably CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – Calderbank offer
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Home Building Act 1989
Cases Cited:	Assaf v Skalkos [2000] NSWSC 935 British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd (1912) AC 673 Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586 Compania Financiera “Soleada” SA v Hamoor Tanker Coro Inc (The Borag) (1981) 1 ELR 274 Derbury Pty Ltd v ACI Australia Ltd (NSW Supreme Court, 8 August 1991, Giles J.) Dunkirk Colliery Co v Lever (1878) 9 Ch 20 Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48 Radford v De Froberville (1977) 1 WLR 1261; Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd (1976) 1 NSWLR 5 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 T C Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd (1963) 37 ALJR 289
Category:	Principal judgment
Parties:	Mrs Susan Roberts and Mr David Roberts at trustees for the Roberts Superannuation Fund (applicants) Mr Allan Duffy (respondent)
Representation:	Mr Peter Merity (Applicants)
File Number(s):	HB 14/61632
Publication restriction:	Unrestricted