New South Wales
Court of Appeal
CITATION: Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31 HEARING DATE(S): 11 and 12 December 2006
JUDGMENT DATE:
28 February 2007JUDGMENT OF: Beazley JA at 1; Bryson JA at 161; Basten JA at 167 DECISION: 1. Appeal allowed; 2. Verdict, judgment and orders of the trial judge set aside; 3. Order that there be judgment for the appellant on the Statement of Claim; 4. Order that there be judgment for the appellant on the cross-claim with damages to be assessed; 5. Remit the matter to the District Court for assessment of damages in respect of the items, (including floors) specified in paragraph [70] of this judgment, together with the claim for liquidated damages and rent; 6. Order the respondent to pay the appellant’s cost of the hearing at first instance and on the appeal, the respondent to have a certificate under the Suitors’ Fund Act 1951 (NSW) if so entitled. CATCHWORDS: CONTRACT – building contract – implication of term by custom or usage - whether custom or usage so well-known to home owners to imply term into contract – whether implication contrary to express terms of contract - REASONS FOR DECISION – whether trial judge gave adequate reasons for decision – whether trial judge failed to properly engage in fact-finding exercise – determination of expert evidence - DAMAGES – damages for breach of building contract – whether damage proved – rejection of evidence - difficulties in estimating loss – damages should not be nominal - UNREPRESENTED LITIGANT – duty of a trial judge - whether trial judge ensured unrepresented party understood procedural options – failure to provide explanation of processes - APPEAL – order for new trial - whether trial sufficiently unfair to demonstrate miscarriage LEGISLATION CITED: Civil Procedure Act 2005 (NSW) s 56 (1),(2)
Supreme Court Act 1970 (NSW) s 75A
Supreme Court Rules 1970 (NSW) Pt 51 r 23CASES CITED: Adidas-Salomon AG v Turner [2003] FCA 421
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Chaplin v Hicks (1911) 2 KB 786
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226
Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167
Fink v Fink (1946) 74 CLR 127
Hull v Thompson [2001] NSWCA 359
King v The Queen (2003) 215 CLR 150; [2003] HCA 42
MacPherson v The Queen (1981) 147 CLR 512
Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48
Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438
Neil v Nott (1994) 68 ALJR 509
Nelson v Dahl (1879) 12 Ch. D. 568
Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257; [2003] HCA 10
Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported)
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
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Details
- Case
- [2007] NSWCA 31
- Decision Date
CaseChat Overview and Summary
Uszok (the appellant) brought proceedings against Henley Properties (NSW) Pty Ltd (the respondent) concerning a building contract. The dispute involved allegations of breach of contract and claims for damages. The matter was heard on appeal in the Court of Appeal of New South Wales.
The Court of Appeal was required to determine whether the trial judge had given adequate reasons for their decision, whether the trial judge had failed to properly engage in the fact-finding exercise, particularly in relation to expert evidence, and whether the trial judge had adequately considered the difficulties in estimating loss when awarding damages. Furthermore, the appeal considered whether the trial judge had fulfilled their duty to an unrepresented litigant by ensuring they understood procedural options and by providing explanations of processes. The overarching question was whether the trial had been sufficiently unfair to demonstrate a miscarriage of justice.
The Court of Appeal found that the trial judge had not provided adequate reasons for their decision and had failed to properly engage with the evidence, particularly the expert evidence. The court also determined that the trial judge had not adequately considered the difficulties in estimating the appellant's loss, leading to an insufficient award of damages. The court concluded that the trial judge had not adequately discharged their duty to the unrepresented appellant, contributing to a miscarriage of justice.
Consequently, the appeal was allowed, and the verdict, judgment, and orders of the trial judge were set aside. Judgment was entered for the appellant on the statement of claim and for the appellant on the cross-claim with damages to be assessed. The matter was remitted to the District Court for the assessment of damages, and the respondent was ordered to pay the appellant's costs.
The Court of Appeal was required to determine whether the trial judge had given adequate reasons for their decision, whether the trial judge had failed to properly engage in the fact-finding exercise, particularly in relation to expert evidence, and whether the trial judge had adequately considered the difficulties in estimating loss when awarding damages. Furthermore, the appeal considered whether the trial judge had fulfilled their duty to an unrepresented litigant by ensuring they understood procedural options and by providing explanations of processes. The overarching question was whether the trial had been sufficiently unfair to demonstrate a miscarriage of justice.
The Court of Appeal found that the trial judge had not provided adequate reasons for their decision and had failed to properly engage with the evidence, particularly the expert evidence. The court also determined that the trial judge had not adequately considered the difficulties in estimating the appellant's loss, leading to an insufficient award of damages. The court concluded that the trial judge had not adequately discharged their duty to the unrepresented appellant, contributing to a miscarriage of justice.
Consequently, the appeal was allowed, and the verdict, judgment, and orders of the trial judge were set aside. Judgment was entered for the appellant on the statement of claim and for the appellant on the cross-claim with damages to be assessed. The matter was remitted to the District Court for the assessment of damages, and the respondent was ordered to pay the appellant's costs.
Orders
Orders of the court
1. Appeal allowed; 2. Verdict, judgment and orders of the trial judge set aside; 3. Order that there be judgment for the appellant on the Statement of Claim; 4. Order that there be judgment for the appellant on the cross-claim with damages to be assessed; 5. Remit the matter to the District Court for assessment of damages in respect of the items, (including floors) specified in paragraph [70] of this judgment, together with the claim for liquidated damages and rent; 6. Order the respondent to pay the appellant's cost of the hearing at first instance and on the appeal, the respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if so entitled.
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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