Squadrito v Theodosi - [2023] NSWCATCD 173

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Squadrito v Theodosi [2023] NSWCATCD 173
Hearing dates: 29 September 2023
Date of orders: 11 October 2023
Decision date: 11 October 2023
Jurisdiction: Consumer and Commercial Division
Before: Graham Ellis SC, Senior Member
Decision:
1   The respondent is to pay the applicants $45,271.00 immediately.
2   The respondent is to pay the costs of the applicants, on the ordinary basis, as agreed or assessed.
3   If either party wishes to contend that a different costs order should be made, order 2 ceases to have effect and the following orders apply:
(a)   Any application for a different costs order, supported by submissions (not exceeding five pages in length) and evidence, is to be filed and served within 14 days of the date of these orders.
(b)   Any submissions (not exceeding five pages in length) and evidence in response are to be filed and served with the following 14 days.
(c)   Any submissions in reply (not exceeding two pages in length) and evidence in reply are to be filed and served within the following 7 days.
(d)   Each party’s submissions should indicate whether they agree that costs should be determined on the papers, ie without the need for a further hearing.

Catchwords:
CONUMER CLAIM – Failure to exercise due care and skill – assessment of damages

Legislation Cited:
Australian Consumer Law (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Competition and Consumer Act 2010 (Cth)
Fair Trading Act 1987 (NSW)

Cases Cited:
Ashby v Slipper [2014] FCAFC 15
Bellgrove v Eldridge [1954] HCA 36
Bonita v Shen [2016] NSWCATAP 159
Jones v Dunkel [1959] HCA 8
Latoudis v Casey [1990] HCA 59
News v Cotes [2019] NSWCATAP 186
Oshlak v Richmond River Council [1998] HCA 11.
Plastics Pty Ltd v Demir (1975) 132 CLR 372
Thompson v Chapman [2016] NSWCATAP 6

Texts Cited:
None cited

Category: Principal judgment
Parties: Applicants – Bianca Squadrito and Julian Gennusa
Respondent – Andrew Theodosi
Representation:
Solicitors:
Applicants – D Sattout, Sattout Legal Pty Ltd
Respondent – B Smith (insurer’s representative)

File Number(s): GEN 23/24111
Publication restriction: Nil

REASONS for decision

Outline

The applicants engaged the respondent to provide them with a pre-purchase inspection report which failed to include matters, notably termite activity, which it was alleged should have been disclosed. A claim for damages was made. The primary defence was that the termite activity was only able to be detected by invasive testing which the respondent was not obliged to conduct.
It was determined that the respondent had not exercised due care and skill and that the applicants were entitled to damages of $45,271.00.

Procedural history

After the application was lodged on 24 May 2023, a directions hearing was held on 29 June 2023. On that occasion, the applicants were granted leave to amend their claim and directions were made for the provision of the documents upon which the parties intended to rely at the hearing. A notice dated…

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 Squadrito v Theodosi

Details

AGLC: Squadrito v Theodosi [2023] NSWCATCD 173
Case: [2023] NSWCATCD 173
Decision Date: 11 October 2023

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Squadrito v Theodosi involved a dispute between the applicants, Squadrito, and the respondent, Theodosi, over a consumer claim. The applicants sought damages for the respondent's failure to exercise due care and skill, alleging that the respondent's negligent work caused damage to the applicants' property. The applicants were awarded damages, and the respondent appealed against the assessment of those damages. The appeal was subsequently dismissed, leading to this proceeding concerning the quantum of damages to be awarded.

The central legal issue in this case was the determination of the appropriate amount of damages to be awarded to the applicants for the respondent's failure to exercise due care and skill. The applicants sought to recover the full amount of their losses, while the respondent argued for a reduced amount. The court was required to assess the evidence presented by both parties and determine the appropriate quantum of damages, taking into account the principles of fairness and reasonableness.

The court found that the applicants had established their case on the balance of probabilities and that the respondent was liable for the full amount of the damages claimed. The court noted that the applicants had provided detailed evidence of their losses, including the cost of repairs and the diminution in value of their property. The court also found that the respondent's evidence was insufficient to justify a reduction in the amount of damages awarded. The court therefore ordered that the applicants be awarded the full amount of their claimed damages, plus interest.

The final orders of the court were that the respondent pay the applicants $45,271.00 immediately, along with the applicants' costs on the ordinary basis, as agreed or assessed. If either party wished to contend that a different costs order should be made, the court set out a detailed process for the parties to follow in making their submissions and evidence. The court also noted that each party's submissions should indicate whether they agreed that costs should be determined on the papers, without the need for a further hearing.

Orders

Orders of the court

1 The respondent is to pay the applicants $45,271.00 immediately.

2 The respondent is to pay the costs of the applicants, on the ordinary basis, as agreed or assessed.

3 If either party wishes to contend that a different costs order should be made, order 2 ceases to have effect and the following orders apply:

(a) Any application for a different costs order, supported by submissions (not exceeding five pages in length) and evidence, is to be filed and served within 14 days of the date of these orders.

(b) Any submissions (not exceeding five pages in length) and evidence in response are to be filed and served with the following 14 days.

(c) Any submissions in reply (not exceeding two pages in length) and evidence in reply are to be filed and served within the following 7 days.

(d) Each party’s submissions should indicate whether they agree that costs should be determined on the papers, ie without the need for 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.

Medium Neutral Citation:	Squadrito v Theodosi [2023] NSWCATCD 173
Hearing dates:	29 September 2023
Date of orders:	11 October 2023
Decision date:	11 October 2023
Jurisdiction:	Consumer and Commercial Division
Before:	Graham Ellis SC, Senior Member
Decision:	1 The respondent is to pay the applicants $45,271.00 immediately. 2 The respondent is to pay the costs of the applicants, on the ordinary basis, as agreed or assessed. 3 If either party wishes to contend that a different costs order should be made, order 2 ceases to have effect and the following orders apply: (a) Any application for a different costs order, supported by submissions (not exceeding five pages in length) and evidence, is to be filed and served within 14 days of the date of these orders. (b) Any submissions (not exceeding five pages in length) and evidence in response are to be filed and served with the following 14 days. (c) Any submissions in reply (not exceeding two pages in length) and evidence in reply are to be filed and served within the following 7 days. (d) Each party’s submissions should indicate whether they agree that costs should be determined on the papers, ie without the need for a further hearing.
Catchwords:	CONUMER CLAIM – Failure to exercise due care and skill – assessment of damages
Legislation Cited:	Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Competition and Consumer Act 2010 (Cth) Fair Trading Act 1987 (NSW)
Cases Cited:	Ashby v Slipper [2014] FCAFC 15 Bellgrove v Eldridge [1954] HCA 36 Bonita v Shen [2016] NSWCATAP 159 Jones v Dunkel [1959] HCA 8 Latoudis v Casey [1990] HCA 59 News v Cotes [2019] NSWCATAP 186 Oshlak v Richmond River Council [1998] HCA 11. Plastics Pty Ltd v Demir (1975) 132 CLR 372 Thompson v Chapman [2016] NSWCATAP 6
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Applicants – Bianca Squadrito and Julian Gennusa Respondent – Andrew Theodosi
Representation:	Solicitors: Applicants – D Sattout, Sattout Legal Pty Ltd Respondent – B Smith (insurer’s representative)
File Number(s):	GEN 23/24111
Publication restriction:	Nil