Gordon v Mirosevich; Mirosevich v Gordon [2025] NSWCATCD 87 | Case summary

NCAT Consumer and Commercial|2025-06-19

By application filed 6 June 2024 in the New South Wales Civil and Administrative Tribunal (proceedings 2024/00209442), the applicant sought a money order against the respondents, in the amount of $28,700.00, as a refund arising from a contract for the installation of a swimming pool. At the hearing of her application, Ms. Gordon indicated that she was seeking a money order in the amount of $33,700.00.
The applicant is a proprietor of a residential property in the suburb of Cromer, New South Wales. The respondents were involved in late 2023 to early 2024 with businesses that supplied and installed swimming pools at residential properties. In addition to their business connexion, the respondents are domestic partners who are engaged to be married to each other.
By application filed 8 April 2025, Mr. Mirosevich (proceedings 2025/00146203), who is also the first respondent to Ms. Gordon's application filed 6 June 2024, seeks $32,000.00 against Ms. Gordon for his expected profit which he says he would have made, but for Ms. Gordon "incorrectly terminat[ing] the contract".
The principal issues in this proceeding were: (a) whether contractual obligations in relation to the supply and installation of the swimming pool were transferred from a third-party to the proceedings to either of the respondents; (b) whether the contract in relation to the supply and installation of the swimming pool was breached and if so, by whom; and (c) if the contract was breached, was the breach a repudiation of the contract or was there a breach of an essential term in the contract.

The first day of the hearing was on 23 January 2025, with Ms. Gordon's application being set down for hearing over a number of hours. On that occasion, each of the three parties appeared in person and represented themselves.
At the outset of the hearing, the applicant outlined her case, explaining the nature of her application and the money order she sought. The respondents then outlined their response to Ms. Gordon's claim and why they believed they were not liable to Ms. Gordon. Mr. Mirosevich indicated that he believed that in fact, he had his own application against Ms. Gordon.
The evidence that the parties had previously lodged with the Tribunal was not available, with the hearing file, on that day. The Tribunal made inquiries with the parties to see what materials they had with them which had been served on the other parties.
There was some confusion about what material had been served by the parties upon each other. The applicant entered the witness box and gave oral evidence about the bundles of documents she had served on the respondents.
The applicant tendered a bundle of documents. The bundle of documents was not page numbered. The title page has a table of contents which indicates that the material within the bundle is divided into four sections, headed 'NCAT order', 'summary of evidence by Justene Gordon', 'Justene Gordons response to Richard Mirosevich evidence' and 'Justene Gordon response to Emma Ward's evidence.'
The bundle became exhibit A in the hearing.
Within the second section of exhibit A, there is a document headed "Timeline". This part of the document has an account of dealings between the applicant and the respondents. It sets out, for example, dates, the course of events, conversations, when text messages and email transmissions were transmitted.
The applicant, when giving oral evidence, gave evidence that the matters set out as part of the "Timeline" were true and correct to the best of her knowledge and belief. The Tribunal stated that it would treat the "Timeline" as the applicant's witness statement.
Ms. Gordon tendered a five page document. The document is a quotation and was on the letterhead of "DFP Direct Fibreglass Pools." It is dated 30 September 2023 and addressed to Ms. Gordon. The document became exhibit B.
Mr. Mirosevich, and then Ms. Ward, cross-examined Ms. Gordon.
At that point on the first day of the hearing, further directions were made requiring the respondents to lodge with the Tribunal and serve on the applicant the evidence upon which they would rely at the hearing, arranging the material in folders with the pages of the evidence consecutively numbered. Further, Mr. Mirosevich was directed to lodge with the Tribunal, and serve on Ms. Gordon, by 20 February 2025, any application against her (because, as mentioned above, Mr. Mirosevich had stated that he had a claim against Ms. Gordon) and the Tribunal directed that any new application served was to be listed and heard with this application. Directions were also made for the filing and serving of evidence on Mr. Mirosevich's foreshadowed application.
No other progress was made on the first day of the hearing and the proceedings were adjourned part-heard.
No application was filed by Mr. Mirosevich by 20 February 2025.
The hearing resumed on 8 April 2025 and lasted the whole day.
When the hearing resumed on 8 April 2025, Ms. Gordon suggested she would apply to join Direct Fibreglass Pools Pty Ltd as a respondent to the proceedings. The Tribunal asked questions about that proposed course. Ms. Gordon informed that Tribunal that she would not make the application to join Direct Fibreglass Pools Pty Ltd.
Mr. Mirosevich then indicated that he had filed a new application with the Registry of the Tribunal and would seek to rely upon that application. He provided to the Tribunal a copy of the application, stamped by the Registry on 8 April 2025. In the application, Mr. Mirosevich claims an order of $32,000.00 against Ms. Gordon. The application states that Ms. Gordon "incorrectly terminated the contract" and that Mr. Mirosevich's "expected profit" was $32,000.00.
The Tribunal asked the parties questions about that proposed course. Ms. Gordon said that she would consent to Mr. Mirosevich's application against her being heard by the Tribunal as part of this hearing. The Tribunal accepted Mr. Milosevich's application.
Thus, both Ms. Gordon's application filed on 6 June 2024 and Mr. Mirosevich's application filed 8 April 2025 fall for determination by the Tribunal.
For his evidence, Mr. Mirosevich tendered a bundle of documents filed on 6 February 2025. The bundle is not page numbered. The first document in the bundle is headed "affidavit." It is not an affidavit and it was not sworn or affirmed before any relevant person. The document presents as Mr. Mirosevich's witness statement and the Tribunal accepts it as a witness statement. Also contained within the bundle include email transmissions, photographs of text messages, an ASIC current and historical extract for the company Direct Fibreglass Pools Pty Ltd and a certificate in respect of insurance for residential building work, with a policy date of 29 November 2023, relating to the installation of a fibreglass swimming pool by Mr. Mirosevich for Ms. Gordon.
The bundle became exhibit 1.
Ms. Gordon then cross-examined Mr. Mirosevich.
For her evidence, Ms. Ward tendered a bundle of documents filed on 6 February 2025. The bundle is ten pages in length. The first document in the bundle is headed "affidavit." It is not an affidavit and it was not sworn or affirmed before any relevant person. The document presents as Ms. Ward's witness statement and the Tribunal accepts it as a witness statement. Other documents that are part of the bundle include a copy of a search relating to Mr. Mirosevich's Australian Business Number, email transmissions, photographs of text messages and a photograph of a letter from St George bank.
The bundle became exhibit 2.
Ms. Gordon then cross-examined Ms. Ward.
Next, Ms. Gordon tendered as evidence, in response to exhibits 1 and 2, a bundle of documents that is 12 pages in length.
The Tribunal stated that it regarded the first three pages of the bundle as submissions rather than evidence. There was no objection by any party to that course and the bundle became exhibit C.
The parties then each made oral submissions. During Ms. Gordon's oral submissions, about the events of 29 January 2024, there was a point where the Tribunal queried that submissions were being made suggesting a telephone conversation took place on that day between her and Mr. Mirosevich but the evidence did not make that clear. Ms. Gordon was permitted to re-open her case. She gave some additional oral evidence in the witness box and was further cross-examined. Ms. Gordon then resumed her place at the bar table and re-commenced her submissions.
Following the completion of oral submissions, the Tribunal raised with the parties the possibility of them having a confidential discussion amongst themselves to see if they could settle their dispute by way of a compromise. The parties asked for that opportunity. The proceedings were briefly adjourned so that the parties could have discussions to see if they could reach a resolution. Following the adjournment, the parties advised the Tribunal that no agreement to resolve the proceedings had been reached. The parties, when they returned from their discussions, also made open offers to settle the proceedings. Those open offers were put as a compromise without any admission by any party as to the strengths or weaknesses of the parties' respective cases. The Tribunal does not place any weight on the open offers that were made. In reaching the decision recorded in these reasons for decision, the Tribunal does not take into account the fact offers were made, nor who it was that made an offer, and nor the amounts of any of the offers.
The Tribunal then reserved its decision and now provides its orders resolving the dispute and its reasons for decision.

In approaching its task of findings facts in this matter, the Tribunal applies the following principles.
First, in considering this matter, the Tribunal is not obliged to apply the rules of evidence: s. 38(1) and (2) of the Civil and Administrative Act 2013.
Secondly, the Tribunal is permitted to proceed with as little formality as the circumstances of the case permit and according to equity, good conscience and without regard to legal technicalities: s. 38(4) of the Civil and Administrative Act 2013. Conversations between Ms. Gordon and Mr. Mirosevich, that are recounted in the evidence, were not recounted in the parties' evidence in direct speech. Given the Tribunal's obligations when applying the Civil and Administrative Act and its rules (s. 36(1) and (2) of the Civil and Administrative Act), together with the circumstance that the parties are not legally trained, given the limited progress of the hearing on 23 January 2025, the circumstances that notice of the respective parties' accounts of conversations had been disclosed in the written evidence served before the relevant party was cross-examined and the parties were given the opportunity to cross-examine each other, the Tribunal formed the view that it accorded with equity, good conscience and without regard to legal technicalities, to accept and rely upon the evidence about what had been said in conversations, even though the conversations were not set out in direct speech.
Thirdly, Ms. Gordon bears the onus of proof on her application and must prove her case on the balance of probabilities.
Fourthly, Mr. Mirosevich bears the onus of proof on his application and must prove his case on the balance of probabilities.
The Tribunal has applied these principles in coming to its findings about the facts of this case.
Based on the evidence referred to above, and applying the principles referred to above, the Tribunal finds that the facts of this matter are as follows:
Ms. Gordon and her husband are the proprietors of a property located at Cromer, New South Wales ("the Property"). There is a building on the Property designed or constructed for use as a residence, which the Tribunal infers from parts of the evidence that refer to Ms. Gordon's "home" on the Property: e.g. [2] in exhibit 2.
On 25 September 2023, Ms. Gordon made an enquiry with a business known as "Direct Fibreglass Pools". Ms. Ward was working for that business at that time. She fielded the inquiry and arranged for Mr. Mirosevich to attend the Property.
Following Ms. Gordon's enquiry, Mr. Mirosevich met Ms. Gordon.
It was on 30 September 2023, that Mr. Mirosevich met with Ms. Gordon. According to Ms. Gordon's account of the conversation, Mr. Mirosevich attended the Property to view it and to give a quotation to supply and instal a fibreglass pool at the Property. Mr. Mirosevich said that he had a pool shell in storage, was paying $500.00 a month for storage of it, the shell had been supplied by Barrier Pools and was finished in "blue shimmer". Mr. Mirosevich said that as he had the pool in storage he was ready to go for installation by Christmas. Mr. Mirosevich quoted a price of $72,000.00. Ms. Gordon explained she did not have the cash flow to make full payment until 26 December 2023. Mr. Mirosevich indicated that he would find a way. He asked for $5,000.00 as a deposit and for the complying development certificate, with the remaining amount to be paid at completion of the build and no later than 5 January 2024. Ms. Gordon agreed.
The Tribunal accepts Ms. Gordon's account and preferred Ms. Gordon's account of the 30 September 2023 conversation to Mr. Mirosevich's account. The Tribunal found Ms. Gordon's account more detailed than Mr. Mirosevich's account of the conversation. Mr. Mirosevich's account made no mention of any of the characteristics of the pool shell that Ms. Gordon sought, yet on Mr. Mirosevich's account she "said yes straight away and that she had $30,000 but she could pay me $15,000 to 20,000." The Tribunal did not find that aspect of Mr. Mirosevich's evidence persuasive.
There is in evidence (exhibit B) a quotation dated 30 September 2023. The quotation was issued to Ms. Gordon. The quotation is on the letter head of "DFP Direct Fibreglass Pools." The quotation sets out a six-part payment schedule and says the amounts identified for each payment are payable to Direct Fibreglass Pools Pty Ltd. A BSB number and an account number follow the reference to Direct Fibreglass Pools Pty Ltd.
The pool design type was identified in the quotation as a Barrier Reef Brooklyn Slimline 8.2 x 3.5 m. pool and spa. The document identified the features of the Barrier Reef Brooklyn Slimline 8.2 x 3.5 m. pool and spa and then stated:

"There is no other pool that can offer all of these features."

The pool measurements, the spa measurements, the coping, the steps and ledges were all identified in the quotation or by reference to documents referred to therein. Amongst other things too, site specific excavation requirements, the concrete strength, bond beam and steel strength, plumbing, equipment and accessories, options and upgrades and exclusions, were all identified in the quotation. The pool finish was identified as "Barrier Reef Sky Blue Shimmer." Part of the quotation dealt with warranties and insurance.
The payment schedule reflects milestones in the performance of any prospective contract were the quotation to be accepted: the deposit, 7 days prior to delivery of the pool shell (35% of the price), the point prior to excavation (20% of the price), the point prior to installation of the pool shell (25% of the price), prior to work completion (the total price minus amounts already paid and minus the payment of $500.00 on handover) and handover ($500.00).
The quotation also includes the following:

"SPECIAL PAYMENT AGREEMENT Deposit only, $5,000. CDC Payment by 30th October 2023, $4,050. Payment along the way will be deducted of [sic] the final amount. Final on or before 5th January 2024. All approved variations or approved additional cost by owner to be paid to be paid [sic] on or before 5th January 2024."

The total of the payment from Ms. Gordon that appeared in the quotation was $78,500.00. The price was inclusive of GST.
As mentioned, the quotation identified exclusions from it. The quotation also identifies "approvals" which include the complying development approval ("CDC") involving: architectural pool plans, design management, portal lodgement and assessment by a private certifier. The price of this approval was $4,050.00 and is treated in the quotation as an item that is not part of the $78,500.00.
"Richard" was identified as Ms. Gordon's "point of contact for everything throughout the entire project" and his mobile telephone number and an email address provided. Near the end of the quotation appears the name Richard Mirosevich, his mobile telephone number and the words "Thank you for approving the quote!"
Text on the front page of the quotation suggests that it had to be approved by pressing a green button and with the next step then being to pay the deposit.
The Tribunal pauses here to note that an ASIC current and historical company extract search for the corporate entity known as "Direct Fibreglass Pools Pty Ltd", which is in the evidence, shows that until 16 August 2023, Mr. Mirosevich was the director of, and that he held beneficially all the share capital in, Direct Fibreglass Pools Pty Ltd. Until 27 August 2023, Mr. Mirosevich was also the company secretary for Direct Fibreglass Pools Pty Ltd. Mr. Sutton became the director of and sole shareholder in Direct Fibreglass Pools Pty Ltd on 16 August 2023. When he submitted his resignation as company secretary, in August 2023, Mr. Mirosevich indicated that he would continue as an employee of the company.
Direct Fibreglass Pools Pty Ltd issued Ms. Gordon with an invoice for $5,000.00 on 5 October 2023.
Ms. Gordon paid the deposit of $5,000.00 on 6 October 2023.
The evidence does not identify directly and precisely how and when it was that the quotation was made available to Ms. Gordon and when she approved it. The Tribunal finds that the quotation must have been prepared by Mr. Mirosevich after the conversation that took place between him and Ms. Gordon on 30 September 2023 at the Property. That is because the "special payment agreement" reflects parts of the conversation that took place at the Property on that date such as Mr. Mirosevich's agreement that $5,000.00 would be payable by Ms. Gordon as the deposit and that the build of the pool would be completed by 5 January 2024. Further the quotation was prepared before 6 October 2023 as that was when Ms. Gordon paid the deposit. The Tribunal makes that finding because there is a banking record in evidence showing that Ms. Gordon paid the $5,000.00 referred to in exhibit B into the same bank account that is identified in exhibit B as the payee's account.
The Tribunal further finds that Ms. Gordon approved the quotation by 6 October 2023, as the text on the front page of the quotation suggests that the process for approval involved first, selecting a green button to show approval and then paying the deposit. There are textual indications in the quotation that suggest it was a document that was accessed on-line and approval for the quotation was also communicated on-line. The textual indications that support that finding including parts of the document such as "if viewing on a phone turn the phone horizontally" and the references to pressing the green button to indicate approval and the blue button for a different purpose.
On 9 October 2023, Direct Fibreglass Pools Pty Ltd issued Ms. Gordon with another invoice for CDC approval, CDC site visits and various other items identified in the invoice. The invoice amount was $4,050.00 including GST. The oral evidence at the hearing indicated that Ms. Gordon dealt directly with an organisation known as "PSC" in relation to the CDC process. Ms. Gordon paid for the CDC (see text message sent on 5 February 2024 at 11.26 a.m.). No party made any application for any order by the Tribunal in relation to any payments for the CDC or CDC process.
There is an email transmission dated 10 October 2023, on Barrier Reef Pools paperwork, to Ms. Gordon thanking her for registering her warranty with Barrier Reef Pools. However, Mr. Mirosevich explained in his evidence (see [5] in his affidavit) that the email was "auto generated." There was no evidence explaining the significance, if any, of an automatically generated message about the registration of the warranty.
In early November 2023 Ms Ward spoke with Ms. Gordon regarding the scheduling of Ms. Gordon's pool installation. The CDC for the swimming pool at the Property had just been approved and submitted to Northern Beaches Council, being the council for the local government area that includes the suburb of Cromer.
On 17 November 2023, Mr. Sutton of Direct Fibreglass Pools Pty Ltd, closed access to all of that company's banking accounts, quoting systems and accounting systems and he did not then operate that business "in any way" (see Ms. Ward's evidence).
On 22 November 2023, Ms. Ward established a business as an individual/sole trader using the business names "Instapools" and "Insta pools". The business was established under Ms. Ward's Australian Business Number "as a stop gap with the plan to change this over to the first respondents ABN when he had the chance to".
On 29 November 2023, Mr. Mirosevich obtained a certificate for insurance complying with ss. 92 and 96 of the Home Building Act 1989. The certificate identified the work the subject of the insurance as "installation of fibreglass swimming pool" at the Property. The homeowner was identified as Ms. Gordon and the contract amount was $78,500. The certificate identified Mr. Mirosevich as the person who would carry out the work and the certificate records a licence number for Mr. Mirosevich.
On 30 November 2023 Ms. Ward started to have complications from a previous surgery and ended up in hospital.
On 5 December 2023, Ms. Gordon sent Mr. Mirosevich a text message "Richard ... cdc done. Not expecting pool before Christmas however do you have an install eta?? Ta justene." The response by text message was "Yippee [emoji] I will schedule you in for January. So happy it came through." Ms. Gordon responded "No problem. Ta Justene." On 9 December 2023, Ms. Gordon had sent an email transmission to both respondents asking for an "exact date" for the pool installation in January.
On 15 December 2023, Ms. Gordon sent Mr. Mirosevich another text message " ... I'm wondering if you have a specific time our pool will start. Ta Justene." The response by text message was " ... We want to lock in your instal to start 1week of the 16th January."
There is then a dispute in the evidence about the events of 3 or 4 January 2024.
Ms. Gordon says that on 4 January 2024 she had a telephone conversation with Mr. Mirosevich. She says that in the conversation, Mr. Mirosevich said:

(1) The pool was all set for delivery and the build would commence on the Thursday of the second week in January;

(2) The second payment for the pool shell and delivery was now due and an invoice would be sent;

(3) He was no longer operating under Direct Fibreglass Pool[s] due to falling out with his business partner;

(4) He terminated the contract with Direct Fibreglass Pools and "requested [Ms. Gordon] to continue with him";

(5) He asked for payment into a new account;

(6) He explained that he was in the process of launching his own pool company with Ms. Ward, "Instapools".

Ms. Gordon said that she agreed to pay $25,000.00. Ms. Gordon said she was confused, felt pressured and that she had no other choice, and that was why she agreed.
Mr. Mirosevich's account is different. His evidence suggests that on 3 January 2024, he went to see Ms. Gordon at her home. He said he explained what happened with Direct Fibreglass Pools. His evidence then provides "I said I could take the contact over. I told her the contract would be the existing quote, but I take over less money already paid."
Mr. Mirosevich then says that on the next day, Thursday 4 January, "Ms. Gordon was more than happy with the service and agreed. I said to get the contract on foot she needed to pay the deposit as this conforms the contract."
Before explaining the Tribunal's finding as to which account the Tribunal accepts about the conversation or conversations that took place on 4 January 2024, or 3 and 4, January 2024, the Tribunal makes the following findings about other events on 4 January 2024.
First, on 4 January 2024, an invoice was issued to Ms. Gordon. The invoice included the following:

"

......

INSTAPOOLS [address]

Ph [mobile telephone number]

ABN [number]

CLIENT DETAILS

Justene Gordon

[address]

Deposit 6th October 2023 $5,000.00

Paid Thank you

Pool shell/delivery $25,000.00

DUE

Total inc GST $28,700.00

Note: NEW BANK DETAILS. Please use this bank details only.

Trading as Instapools

Banking Details

Richard Mirosevich

BSB [number]

Acc No [number]."

The mobile telephone number that was provided in the tax invoice was the same mobile telephone number that had been provided as Mr. Mirosevich's contact telephone number in the 30 September 2023 quotation referred to above in these reasons. The Australian Business Number that was provided in the tax invoice was the same ABN that Ms. Ward had said in her written evidence was her ABN.
Secondly, on 4 January 2024, Ms. Gordon paid $28,700.00 to the bank account identified in the invoice dated 4 January 2024, that being an account that differed from the bank account to which Ms. Gordon had earlier paid the $5,000.00 referred to above. There is a text message in evidence, sent from Ms. Gordon to Mr. Mirosevich at 8.27 pm on 4 January 2024 that states "Hi Richard, please see payment notice attached. Full price on quote is 78500 inclusive GST. No idea of the gst split etc so just working off full inclusive quote. Have paid $33700 for pool (cdc extra). Therefore remaining 44800 to pay. Ta Justene."
The attachment features a banking record showing a payment of $28,700 to Mr. Mirosevich's bank account and with the payee "instapools", made on 4 January 2024. The words "Pool payment" have been inserted to correspond to both the "Your reference" and "Payee's description" boxes in the banking record.
Having referred to the invoice and banking record, the Tribunal returns now to the issue of the dispute between Ms. Gordon's evidence and Mr. Mirosevich's evidence about 4 January, or 3 and 4 January 2024.
The Tribunal accepts the account of Ms. Gordon that she had a telephone conversation with Mr. Mirosevich on 4 January 2024. The Tribunal is of the view that Mr. Mirosevich's recollection about a meeting with Ms. Gordon on 3 January 2024 and then another conversation with her on 4 January 2024 is mistaken.
The reasons for why the Tribunal reaches the findings recorded in the preceding paragraph of these reasons are as follows.
The Tribunal was generally impressed with Ms. Gordon as a witness who gave truthful and accurate evidence to the Tribunal. Her account was consistent with documents and communications that were contemporaneous with the events the subject of the parties' dispute. Her demeanour and answers when challenged during cross-examination led the Tribunal to form a favourable view of her credit. Ms. Gordon's account of the conversation that took place on 4 January 2024 between her and Mr. Mirosevich was much more complete than Mr. Mirosevich's account. Ms. Gordon's account explains how "Instapools" was introduced to her. Mr. Milosevich's account (see paragraphs 7 and 8 in the so-called affidavit in Exhibit 1) makes no mention of "Instapools." The banking record showing that Ms. Gordon paid "Instapools" on 4 January 2024 tends to support Ms. Gordon's account of the conversation she claims took place on 4 January 2024. Ms. Gordon's account explains why she was not surprised to receive a tax invoice from Instapools, since Mr. Mirosevich had explained to her why Direct Fibreglass Pools Pty Ltd was no longer involved and he had also explained the connexion between himself and the business Instapools. On the other hand, Mr. Milosevich's account is not persuasive because it does not account for why or how Ms. Gordon would know to expect an invoice in the name Instapools and to make a payment to "Instapools".
Further, Mr. Mirosevich's evidence that on 4 January 2024, he told Ms. Gordon she "needed to pay the deposit" is not persuasive. Ms. Gordon had already paid what she and Mr. Mirosevich had earlier agreed as the amount for the deposit on 6 October 2023. It does not seem to the Tribunal to be plausible that Ms. Gordon would have accepted Mr. Mirosevich claiming on 4 January 2024 that she needed to pay another "deposit", without raising a query with him about what he was talking about or the basis for another deposit. The tax invoice dated 4 January 2024 is a document, relatively contemporaneous with the 4 January 2024 conversation, which confirms that the deposit had already been "paid" on 6 October 2023 and that no new "deposit" was required by Mr. Mirosevich on 4 January 2024.
Further, Mr. Mirosevich's statement that Ms. Gordon was "more than happy" on 4 January 2024 is not persuasive. On 5 December 2023, Ms. Gordon had sent Mr. Mirosevich a text message asking for the pool installation time. On 9 December 2023, Ms. Gordon had sent an email transmission to both respondents asking for an "exact date" for the pool installation in January. On 15 December 2023, Ms. Gordon had sent another text message asking for "a specific time our pool will start." Those repetitive inquiries from Ms. Gordon were against the background of the 30 September 2023 quotation which had suggested completion of the pool installation and final payment by 5 January 2024. In the Tribunal's view, it is not plausible that on 4 January 2024, Ms. Gordon said or gave some indication to Mr. Mirosevich that she "was more than happy with the service." The Tribunal accepts Ms. Gordon's evidence that she was confused and felt pressured at the time she spoke to Mr. Mirosevich on 4 January 2024.
The process of installing the swimming pool at the Property did not start by the Thursday of the second week of January 2024, being 11 January 2024.
On 11 January 2024, at 9.39 a.m., Mr. Mirosevich sent an email transmission to Luci at Barrier Pools about a Brooklyn, sky blue pool shell, shell #54021. The email transmission stated "This shell I sold to Justene Gordon and I had this on the paperwork in October when I order the pool. I require the pool delivery next week. Please confirm this pool is ready for pick up."
The respondents' evidence does not show any email transmission from "Luci" replying to that message.
Mr. Mirosevich says at [11] in his "affidavit": "[Luci] informed me that the shell was sold, and later said it was never order in Ms. Gordon Pool." The evidence is not clear that it was on 11 January 2024 that Luci had told Mr. Mirosevich that the pool shell had never been ordered for Ms. Gordon. The evidence from the respondents does not show when the "later" conversation with Luci, implied by Mr. Mirosevich's evidence (at [11] in his "affidavit"), took place.
However, Mr. Mirosevich's evidence does reveal that back in the preceding year, that is, back on 5 December 2023, Luci Wiliams, who is identified in the email transmission as a "manufacture and logistics manager", had sent an email transmission to Mr. Mirosevich as follows: "Good Morning Richard, I have a dealer interested in the above shell. It was originally for customer Guiffre. Can you please let me know ASAP?"
Ms. Williams' email transmission dated 5 December 2023 appears, from the way Mr. Mirosevich presented his evidence of the transmissions in exhibit 1, and the Tribunal finds, the preceding part of an email chain that led to and was followed by the 11 January 2024 email transmission referred to above. Mr. Mirosevich has not provided any evidence, apart from the 11 January 2024 email transmission, showing what response he made to Ms. Williams entreating him on 5 December 2023 to let her know "ASAP" what to do with pool shell.
On 15 January 2024, Ms. Gordon sent Mr. Mirosevich a text message. The message was "Hi Richard, just confirming start this Thursday?? Need to manage work so I'm her but just confirming all is on track?". The response was "Have to push back due to rain 1week."
There then follow a series of text messages between Ms. Gordon and Mr. Mirosevich. Ms. Gordon made requests on 19 and 20 January 2024 about the build schedule. There was no response. On 22 January 2024 she sent a text message "Hi Richard, I'm getting rather concerned ..." On 22 January 2024, Mr. Mirosevich sent a text message to Ms. Gordon explaining that he would call her tomorrow.
On 23 January 2024, Ms. Gordon sent a text message to Mr. Mirosevich which included " ... I have decided it is best that I cancel the contract as build has not commenced stated. Please refund all monies paid to date except cdc payment. Total $33700 ..."
Further on 23 January 2024, a telephone conversation took place between Ms. Gordon and Mr. Mirosevich. Amongst other things, he said that the pool shell had been sold by Barrier Reef Pools without his knowledge. He was looking to have a new pool shell, being one white in colour, shipped down from Newcastle. The pool build just needed to be pushed back another week. As a back-up he had another pool and spa in storage, that he had purchased for his own new home. He would install that for Ms. Gordon at his own cost. It was bigger with a separate spa.
The Tribunal accepts Ms. Gordon's account of the conversation on 23 January 2024 provided in her written evidence. Mr. Mirosevich's account of the conversation is consistent with her account in that he agrees that he offered her a solution by providing other pool shells, including a shell that he had obtained for his own home. Mr. Mirosevich's account includes evidence about some additional content in the conversation about Mable [...]. The Tribunal accepts Mr. Mirosevich's evidence about that part of the conversation. It was not contested in cross-examination and receives some support from a text message in the evidence and sent by Mr. Mirosevich that refers to "Mabel neighbour".
On 25 January 2024, Ms. Gordon sent Mr. Mirosevich another text message. In the message, Ms. Gordon referred to their discussion and his explanation regarding the pool shell being "on sold". Ms. Gordon referred to Mr. Mirosevich's sourcing of an alternative, equivalent pool, and if that could not be obtained, that he had a larger pool that would be used at the same build cost. The text continued "I am happy to continue with the pool build at this stage providing I receive regular updates on the status of the build and the build commences shortly." Ms. Gordon then asked for confirmation of key dates relating to pool shell availability, when it would be on its way, date of arrival, when the dig would commence, when the pool would be craned in, when plumbing and electrics, and coping and concreting performed. She also asked for an update.
There were further text messages passing between Ms. Gordon and Mr. Mirosevich and then on 25 January 2024 at 11.11 pm he wrote to her "Hello Justine. I was waiting for Barrier to reply. I'm happy if they don't reply by end of Tuesday to install the seperate square spa and billabong 7.5 m in white."
Further text messages passed between Ms. Gordon and Mr. Mirosevich. One of the text messages on 29 January 2024 was from Ms. Gordon about Zorka [...] posting something on a new pools website, with Ms. Gordon adding that she would be foolish not to be incredibly concerned.
On 29 January 2024, there was a telephone conversation between Ms. Gordon and Mr. Mirosevich. (The written evidence from Ms. Gordon did not make it clear that it was a telephone conversation; Ms. Gordon gave evidence it was a telephone conversation in her oral evidence when she was given leave to re-open her case in the course of submissions, as mentioned above in these reasons). In the conversation, Mr. Mirosevich indicated that he had spoken to the architect to update plans for the bigger pool, that Ms. Gordon should call the architect herself, all was on track, they should be done in a week or so and build would commence as soon as possible, possible week and a half.
On 2 February 2024 at 2.56 pm, Ms. Gordon sent a text message to Mr. Mirosevich "... how are things tracking with the updated cdc?" There was no response. Later that day, at 6.54 pm there was a further text message "Hi Richard, any news? ..." On 3 February 2024, Mr. Mirosevich responded "Will follow up and see where PSQ are with the change." Ms. Gordon responded "So not likely to start next week ..." There was no response.
On 5 February 2024 Ms. Gordon contacted the architect Kayt from PSQ. The architect said that she had spoken with Mr. Mirosevich on 29 January 2024 about the new plan. The architect said however that Mr. Mirosevich had not lodged a request through the appropriate pathway and had not provided any information so they could start the process and thus no work at all had commenced.
To put that evidence in context, the evidence before the Tribunal was that no scheduling for a pool build could be done until the CDC was complete: see [4] in Ms. Ward's 'affidavit.' That is, if a larger pool was now going to be installed at the Property, the updated CDC process to enable that had not been commenced and no scheduling for the steps needed as part of the pool build could be prepared.
At 11.26 a.m. on 5 February 2024 Ms. Gordon sent Mr. Mirosevich a text message:

"Hi Richard, I have spoken with Kayt. Whilst you spoke with her on Monday I'm sure you would be aware that you needed to submit an order through the website as she is unable to start any work without that. So absolutely nothing has been commenced around the updated plans. Given no further funds have been expended and I don't want this new pool and it not what I have a contract for. I have come to the decision that at this stage with the stress and uncertainty and summer ended soon I will not be progressing with any pool at this time. The contract I signed for a pool has been breached given the delays. Please provide a refund for funds paid. A pool has not been purchased for me so there is no outlay there. I have paid for the cdc. Please provide a refund by Wednesday 7th Feb. Regards Justene."

In a further message to Mr. Mirosevich, Ms. Gordon provided her bank account details and told Mr. Mirosevich not to engage Kayt on new drawings.
On 7 February 2024, in the evening, Ms. Gordon texted Mr. Mirosevich again, noting she had requested a refund by that day and stated "I would appreciate a response to my message ..." On the evening of the same day, she texted him again "Richard, given the breaches in contract and loss of confidence in build I have requested a refund ... Send screenshot of funds transferred. Please do the right thing here."
Mr. Mirosevich responded by text message to Ms. Gordon:

"Evening Justene, I'm sorry you feel that way. Firstly your pool shell you requested in white is built and ready for transport. Your request was for the pool to be delayed and installed Feb/March, due to funding. You called me to say you were concerned due to comments you read from Zorka and Marbel. As per your text serious concerns. Both ladies claims are unfounded without merit. ..."

In the balance of the text message, amongst other things, Mr. Mirosevich stated that he was very, very proud of his workmanship, referred to the number of pools which he had built, attached photographs of other pools he had built and commented on the standard of his work shown in the photographs.
On 8 February 2024, Ms. Gordon responded by text message "Richard, this matter is not about your capacity to build a structurally sound pool. This about the capacity to deliver, I do not have trust in the process and will not continue with the weekly vague changes to the plan which has resulted in me being out of pocket with nothing to show, my sleep is now being impacted."
The test message continued:

"As of Saturday 3rd Feb you indicated you would check with Kayt as to the updated cdc for the plan to install a completely different shell (your own shell) at your own cost for extra works, as Barrier reef did not have a shell available. You are now informing me that there is a shell underway in Brisbane to match current cdc. This is now the 4th plan of delivery that you have communicated to me and the first I have heard about it. I reiterate that I no longer wish to engage in discussions around this matter and further seek reimbursement of payments made ..."

On 9 February 2024, Ms. Gordon texted Mr. Mirosevich stating she would commence legal action if her funds were not returned by 5.00 p.m. on 9 February 2024.
Mr. Mirosevich responded on 9 February 2024 "Hello Justene, The shell you preferred is built. As per your request you want the pool to be installed Feb/March 2024. Can you please advise a date for starting, so we can schedule the install."
Ms. Gordon responded by saying she did not have a contract with Mr. Mirosevich and asking for a refund of her money.
Mr. Mirosevich then sent Ms. Gordon a text "Let me know when you want to schedule the installation."
Ms. Gordon responded by saying she did not have a contract with Mr. Mirosevich and "Please do not do this."
However, Mr. Mirosevich then sent Ms. Gordon a text "Let me know when you want to schedule the installation", that is, in precisely the same terms as his preceding text and consistent with his first text message of that day which included "Can you please advise a date for starting, so we can schedule the install."
Ms. Gordon responded by saying she would be lodging a complaint with the Fair Work Commission.
However, Mr. Mirosevich then sent Ms. Gordon a text "Let me know when you want to schedule the installation", that is, in precisely the same terms as his two preceding text messages, and consistent with his first text message of that day which included "Can you please advise a date for starting, so we can schedule the install."
There are other text messages in the evidence, after the ones referred to above, which are in the evidence and have been read and considered by the Tribunal.
On 24 - 26 February 2024 Ms. Gordon contacted Barrier Reef Pools. She did so, she explained, to understand what had happened to the original pool she had been allocated, as she had received an email transmission containing warranty details. She said that Barrier Pools informed her that the order for the blue shimmer shell had been suspended or cancelled in December 2023 due to a lack of payment. Further, Barrier Pools told her that they had suspended the production of any further pool shell associated with Mr. Mirosevich. Barrier Reef Pools further informed Ms. Gordon that there was no pool shell allocated for her in production or for delivery in her name or at her address. Ms. Gordon specifically asked if a white Brooklyn pool was in Brisbane ready for delivery to her and they advised her there was not.
The Tribunal accepts the evidence of Ms. Gordon recounted in the previous paragraph of these reasons. The Tribunal is mindful that Ms. Gordon's recount involves hearsay. However, as noted above, the Tribunal is not bound by the rules of evidence. The Tribunal is satisfied that it can rely upon what has been recounted by Ms. Gordon. There was no suggestion that Mr. Mirosevich challenged that evidence in that there was no cross-examination by Mr. Mirosevich challenging what is recounted in the previous paragraph of these reasons. Further, Mr. Mirosevich, having read that evidence from Ms. Gordon served before the first day of the hearing, if he did dispute it, could have adduced his own evidence (if there were some) showing a further pool shell that he had in fact ordered from Barrier Reef pools for Ms. Gordon, or for her Property, and he could have adduced his own evidence disputing the statement of the suspension or cancellation in December 2023, and disputing the information that Barrier Pools had suspended the production of any further pool shell associated with Mr. Mirosevich. He adduced no such evidence.
On 4 March 2024 Ms. Gordon made a complaint to NSW Fair Trading about the two respondents. On 26 March 2024 Ms. Gordon went to the home of Ms. Ward and, through the intercom, asked to speak to Ms. Ward. Ms. Ward "hung up" the call. On 27 March 2024 Mr. Mirosevich sent a text message to Ms. Gordon asking her not to come this door again and making other points.
On 6 June 2024, as mentioned above, Ms. Gordon commenced these proceedings.

To summarise the parties' principal submissions, Ms. Gordon made submissions about the course of events as disclosed by the evidence. Ms. Gordon submitted that she is entitled to a refund of the $33,700.00 she paid. She says that she was entitled to terminate the contract for the supply and installation of the swimming pool on 5 February 2024 and that she did terminate the contract on that date. Despite paying $33,700.00, no swimming pool shell was ever supplied to her and no swimming pool installed.
She submits that Mr. Mirosevich, the first respondent, should be ordered to refund the $5,000.00 deposit which she paid. She submits that Mr. Mirosevich indicated to her that he had control of Direct Fibreglass Pools Pty Ltd and so he should be responsible for the refund of the $5,000.00. Ms. Gordon submits that Ms. Ward, the second respondent, should be ordered to return the $28,700.00. She submits that Ms. Ward was a partner in Mr. Mirosevich's business and further, the invoice dated 4 January 2024 for the amount of $28,700.00 came from "Instapools", which, because the evidence suggests that Ms. Ward operated that business, as Ms. Ward's Australian Business Number appears on the invoice, means that Ms. Ward should be obliged to repay the $28,700.00.
Mr. Mirosevich made submissions about the course of events as disclosed by the evidence. He denied that he had ever received the deposit and said he had been an employee of Direct Fibreglass Pools Pty Ltd and that company "closed its doors" in mid or late November 2023.
He said he then obtained home warranty insurance for the swimming pool installation at the Property in his own name. He told Ms. Gordon that he would step in and complete the contract for the swimming pool supply and installation. He submitted that Ms. Gordon's contract was with him.
On 11 January 2024, he found out from Barrier Reef Pools that the swimming pool shell that had been intended for Ms. Ward had been sold. He accepted that he did say rain was the cause of the delay but the truth was mainly that the shell was the cause of the delay. He told the Tribunal that he used the rain as an excuse. He could have done the excavation for the swimming pool at the Property but he did not want to alarm Ms. Gordon.
Mr. Mirosevich said he had options to obtain other pool shells. He spoke to Ms. Gordon on 20 January 2024 about obtaining access to the Property through an adjoining golf course. However, she then cancelled or repudiated the contract on 23 January 2024 in her text message. When questioned by the Tribunal about whether or not he was suggesting that he had accepted Ms. Gordon's asserted repudiation on 23 January 2024, Mr. Mirosevich then pointed to Ms. Gordon cancelling the contract on 5 February 2024. He said there was no allowance or basis for her to do that. The Tribunal queried whether the delay in delivering the swimming pool may have justified Ms. Gordon 'cancelling' the contract. In response, Mr. Mirosevich submitted that on 15 January 2024, Ms. Gordon had agreed to push the delivery of the pool back another week.
He later submitted that on 23 January 2024, he was still within the timeline of what had been quoted. The contract was still in place, he had offered a pool upgrade and on 25 January 2024, Ms. Gordon agreed to keep the contract on foot. He says at no stage could it be said that he could not deliver the pool to Ms. Gordon. He says he was not in breach of the contract on 5 February 2024 when Ms. Gordon tried again to cancel the contract. He said he had been allowed three weeks to complete the work. As to how the delay in delivering any pool shell should be considered in the light of the terms of the 30 September 2023 quotation, Mr. Mirosevich submitted that such delay had nothing to do with him, that was a matter for Direct Fibreglass Pools Pty Ltd. He only took over on 4 January 2024. He said he could have had the pool built and finalised within 4 weeks. Ms. Gordon was premature in cancelling the contract.
As to his application bought against Ms. Gordon, he submitted that he was willing to complete the contract, Ms. Gordon had cancelled the contract without a proper basis and he was entitled to his loss of profits on the contract. The Tribunal queried where there was any evidence of the quantum of his loss of profits. Mr. Mirosevich said that he had been in a Supreme Court case in 1999 which stated that the quantification of loss of profits could only be done by a Court appointed third-party.
For her part, Ms. Ward submitted that there was no basis for any money order to be made against her. She had no legal responsibility for the $5,000.00. She had merely done administrative work, on a voluntary basis for the company Direct Fibreglass Pools Pty Ltd. She had been involved early on in speaking with Ms. Gordon, entering her name into the customer records and sending Ms. Gordon a congratulatory message. She later had her surgery and then had nothing to do with Ms. Gordon until the hearing. When things were very busy in November 2023, Ms. Ward had set up the "Instapools" business and did so using her own Australian Business Number. The intention behind that was to be helpful and was that Instapools would be associated with her ABN for only a short period. She said that as for the $28,700.00 sought by Ms. Gordon against Ms. Ward, that had nothing to do with her (Ms. Ward) as Ms. Gordon's contract was with Mr. Mirosevich.

No submission was made by any of the parties that the Tribunal does not have jurisdiction to resolve this application.
The Tribunal is satisfied that Ms. Gordon is an "owner" (see (a) in the definition of "owner" in Schedule 1 of the Home Building Act 1989 NSW ("the Act") making a claim for the payment of a specified sum of money that arises from a supply of building goods and services whether under a contract or not (see 48K(1) and 48A(1)(a) of the Act and definition of "building claim"), supplied for or in connection with the carrying out of "residential building work". That is because the work involved in this case is included in the definition of "dwelling", as Direct Fibreglass Pools Pty Ltd was to construct structures or improvements, in the form of a swimming pool and a spa, for use in conjunction with a "dwelling" (the Act, Schedule 1, clause 1, clause 2(1)(a) and clause 3(2)(a)), being a building designed constructed or adapted for use by Ms. Gordon as a residence.
The claim is within the jurisdictional limit of the Tribunal (the Act s 48K(1)). The application was filed on 6 June 2024 and so has been brought within time (ss 48K(7) and 18E(1) of the Act).
The Tribunal is satisfied that it has jurisdiction to determine Ms. Gordon's claim. The Tribunal is also satisfied that it has jurisdiction to determine Mr. Mirosevich's claim: ss 48K(1) and 48A(1)(a) of the Act.

The Tribunal finds that the 30 September 2023 quotation was an offer, for the purposes of the law of contract, setting out the express terms of the contract. Ms. Gordon accepted that offer when she, as explained above, selected the green button made available to her as part of that quotation and then by paying the deposit of $5,000.00 referred to in the quotation on 6 October 2023.
A contract was accordingly formed on 6 October 2023 ("the Contract").
The Tribunal applies an objective approach when ascertaining whether there is an offer and acceptance giving rise to a contract: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [46] and [47] per French CJ, Nettle and Gordon JJ. What parties may have intended, their actual beliefs or intentions, are not determinative. The Tribunal instead has regard to how words and conduct would be reasonably understood.
The Tribunal finds that the Contract was made by Ms. Gordon with Direct Fibreglass Pools Pty Ltd. Applying the objective theory or approach to which I have referred, the reason the Tribunal reaches that conclusion is that the 30 September 2023 quotation refers to Direct Fibreglass Pools Pty Ltd as the payee. The quotation refers to Direct Fibreglass Pools providing the highest quality pools shells, equipment, installation process and team. The quotation is also on the letterhead 'DFP Direct Fibreglass Pools'. The references to Direct Fibreglass Pools, which, when viewed against the reference within the text of the quotation to Direct Fibreglass Pools Pty Ltd, seems to me plainly to involve references to Direct Fibreglass Pools Pty Ltd, as the entity which was making the offer contained in the quotation.
The fact that Mr. Mirosevich was an employee of Direct Fibreglass Pools Pty Ltd in September and October 2023 or made assertions of the company being one controlled by him, does not mean that Ms. Gordon made a contract with him when she accepted the quotation. The fact that Ms. Ward was performing administrative work for Direct Fibreglass Pools Pty Ltd in September and October 2023 does not mean that Ms. Gordon made a contract with her when she (Ms. Gordon) accepted the quotation. In law, a corporation is a separate entity from its members, employees and agents acting on its behalf: Gas Lighting Improvement Co Ltd v IRC [1923] UKHL TC_12_503; [1923] AC 723 at 740-1 per Lord Sumner, cited by Kitto J in Hobart Bridge Co Ltd v FCT [1951] HCA 33; (1951) 82 CLR 372 at [24].

The next issue to consider is whether there was a novation of the Contract.
Novation is a transaction by which the law recognises that a contractual obligation can be transferred for practical purposes to another person: see for example Olsson v Dyson [1969] HCA 3; (1969) 120 CLR 365 at 388 per Windeyer J. Novation involves the extinguishment of one obligation and the creation of a substituted obligation in its place: Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473; [1999] NSWCA 323 at [78].
Intention is crucial to show a novation: Vickery v Woods [1952] HCA 7; (1952) 85 CLR 336 at 345 per Dixon J, as his Honour then was.
A novation may be express or implied from the circumstances: Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473; [1999] NSWCA 323 at [78].
The Tribunal is satisfied that on 4 January 2024, there was a novation of the Contract such that the obligations of Direct Fibreglass Pools Pty Ltd, provided for in the Contract, were transferred to Mr. Mirosevich. In the telephone conversation that took place on that day between Ms. Gordon and Mr. Mirosevich, he requested that Ms. Gordon "continue [the Contract] with him" and Ms. Gordon agreed with that course. In the Tribunal's view, the clear language used by Mr. Mirosevich leads to the conclusion that Ms. Gordon and Mr. Mirosevich had therefore expressly agreed to the novation.
In the Tribunal's view, Direct Fibreglass Pools Pty Ltd impliedly agreed to the novation of the Contract. The course of events, even the course of subsequent events, can be relied upon to confirm that novation has taken place: Fightvision, supra, at [80]. There is no evidence that, following the initial receipt of the $5,000.00 deposit, that Direct Fibreglass Pools Pty Ltd took any step to perform the contract it had made with Ms. Gordon or require her to perform her contract with it. The tax invoice dated 4 January 2024, is a business record that shows (and the Tribunal finds) that the $5,000.00 deposit previously received by Direct Fibreglass Pools Pty Ltd was now received by Mr. Mirosevich as the payee of the invoice (see "paid" and "thank you" in the invoice and the references to his name and bank in the invoice). Further, the tax invoice shows the deposit was being applied towards Ms. Gordon's payment obligation under the novated Contract and no longer had any connexion to Direct Fibreglass Pools Pty Ltd. The Tribunal is satisfied that Direct Fibreglass Pools Pty Ltd agreed to Mr. Mirosevich being substituted for Direct Fibreglass Pools Pty Ltd in the original contract.
The Tribunal does not find that it was Ms. Ward who took over the Contract from Direct Fibreglass Pools Pty Ltd.
The Tribunal does not accept Ms. Gordon's submission concerning the invoice dated 4 January 2024 that it was issued by Instapools which is a matter that points to Ms. Ward as the new contracting party, because the invoice contained the Australian Business Number associated with Ms. Ward. Even if Ms. Ward had intended, on an interim or stop gap basis to operate herself a swimming pool installation business until Mr. Mirosevich could set up his own such business, such an intention is not determinative for present purposes. The objective evidence was clear that it was Mr. Mirosevich taking over the contract (his words 'continue the contract with him' stated in the 4 January 2024 conversation) and Ms. Gordon's agreement with that. In the telephone conversation between Mr. Mirosevich and Ms. Gordon on 4 January 2024, there was no reference to Ms. Ward taking over the Contract at that time. Mr. Mirosevich spoke of continuing the Contract with him, while pointing to a process that he and Ms. Ward were engaging in to launch their own pool company.
There was no conduct or words on Ms. Ward's part by which the Tribunal could be satisfied that Ms. Ward herself said or did something by which the Tribunal could conclude that Ms. Ward was agreeing to a novation of the Direct Fibreglass Pools Pty Ltd Contract.
Further, the potential meaning conveyed by the Australian Business Number in the invoice as to the substituted party in the Contract, is also contradicted by other material in the 4 January 2024 tax invoice.
The 'banking details' section in the invoice specifies the name "Richard Mirosevich" and includes his bank account details as the payee. Above this section in the invoice, the words "Trading as Instapools" appears. Thus, the invoice, in my view, is more likely to convey the meaning that Mr. Mirosevich was now operating a swimming pool installation business using "Instapools" as the trading name. The mobile telephone number on the invoice was Mr. Mirosevich's mobile telephone number, a circumstance which again conveys to the objective observer that it was Mr. Mirosevich who was now operating a swimming pool installation business using "Instapools" as a business or trading name.
The Tribunal is not persuaded that Ms. Gordon has proven on the balance of probabilities that Ms. Ward took over the Contract. Even if one were to ignore the conversation between Ms. Gordon and Mr. Mirosevich on 4 January 2024, the invoice contains contradictory material and the Tribunal is not satisfied that Ms. Gordon has discharged her onus of proof on this part of her case.
In finding there was a novation of the Contract, that means of course there is only the one contract. It is not the case that there is an earlier contract formed on 6 October 2023 and then a new contract formed on 4 January 2024.

When a promisee under a contract claims the other party is in breach of the Contract, the onus of proving the relevant term of the contract, a breach of that term, a consequential right to terminate and a valid exercise of that right, lies on the promisee: J Kitchen & Sons Pty Ltd v Stewart's Cash and Carry Stores [1942] HCA 18; (1942) 66 CLR 116 at 126.
It was a term of the Contract that Mr. Mirosevich would deliver and install for Ms. Gordon at the Property a swimming pool of the design type identified in the quotation dated 30 September 2023 as a Barrier Reef Brooklyn Slimline 8.2 x 3.5 m. pool and spa. The pool measurements, the spa measurements, the coping, the steps and ledges were all identified in the quotation or by reference to documents referred to therein.
The Tribunal finds that Mr. Mirosevich breached that term of the Contract. He never delivered a Barrier Reef Brooklyn Slimline 8.2 x 3.5 m. pool and spa to Ms. Gordon.
Moreover, not only did Mr. Mirosevich fail to deliver a Barrier Reef Brooklyn Slimline 8.2 x 3.5 m. pool and spa to Ms. Gordon, the Tribunal is satisfied that from December 2023, Mr. Mirosevich was unable to comply with that term of the Contract. The evidence of Ms. Gordon shows that the pool shell that had originally been intended by Mr. Mirosevich for Ms. Gordon was already cancelled, in December 2023, and the supplier, Barrier Reef pools, had suspended the production of any further shell associated with Mr. Mirosevich. The evidence of Mr. Mirosevich fails to show what, if anything, Mr. Mirosevich had done in response to Ms. Williams' email transmission dated 5 December 2023 seeking an "ASAP" response. The 11 January 2024 email transmission sent to Ms. Williams was sent too late if Mr. Mirosevich were to be able to deliver a Barrier Reef Brooklyn Slimline 8.2 x 3.5 m. pool and spa to Ms. Gordon. Finally, on Mr. Mirosevich's own evidence, and perhaps most critically, Ms. Williams told him not only that the pool was sold but that it had never been ordered for Ms. Gordon.
Next, it was a term of the Contract that Mr. Mirosevich would deliver and install for Ms. Gordon at the Property a swimming pool of the design type identified in the Contract by 5 January 2024. So much is clear from the payment schedule in the quotation and the part of the quotation dealing with "special payment agreement", which together, show that Ms. Gordon was to have made her final payment ("handover" in the Contract) by 5 January 2024. However, on 4 January 2024, Ms. Gordon and Mr. Mirosevich mutually agreed that the swimming pool would be delivered and the build would commence on the Thursday of the second week in January 2024, being 11 January 2024. The Tribunal finds that there was a variation to the Contract, extending the date for "handover" and final payment from 5 January 2024 to a date after 11 January 2024. There was consideration for the variation because the variation is in its totality capable of benefiting each of the counter-parties to the Contract (see Ficom SA v Sociedad Cadex Limitada [1980] 2 Lloyd's Rep 118 at 132) because Mr. Mirosevich would be afforded extra time to deliver and install the pool shell he was obliged to provide and Ms. Gordon would have extra time to pay for the balance of the Contract price, as payments became payable, as and when the steps set out in the payment schedule of the quotation were completed.
The Tribunal finds that Mr. Mirosevich breached the varied term of the Contract as Mr. Mirosevich failed to deliver the pool and commence the build by the Thursday of the second week in January 2024.
It was also a term of the Contract, taking into account the payment schedule and the "special payment agreement" that is recorded in exhibit B, that following the payment of the deposit, Mr. Mirosevich was next entitled to receive $27,475.00, seven days prior to the delivery of the pool shell. That amount represents 35% of the Contract price and was payable "7 days prior to delivery of Pools Shell".
The Tribunal finds that Mr. Mirosevich was in breach of the Contract in demanding from Ms. Gordon, and receiving $28,700.00 from her, on 4 January 2024.
There was no basis in the Contract for Mr. Mirosevich to make a demand, on 4 January 2024, for a second payment under the Contract, in circumstances where no delivery of the pool shell referred to in the Contract was scheduled for delivery 7 days after the second payment under the Contract was made. Indeed, the pool shell that Mr. Mirosevich had intended for Ms. Gordon was already sold by then and had never been ordered for Ms. Gordon. It could not have been scheduled for delivery 7 days after 4 January 2024.
On the evidence before the Tribunal, Mr. Mirosevich was not permitted to demand from Ms. Gordon the second payment due under the Contract as early as 4 January 2024.
Mr. Mirosevich failed to deliver a pool shell to Ms. Gordon by 11 January 2024, being of course the date 7 days after 4 January 2024 when the payment was demanded. Of course, the pool shell was also not delivered by 18 January 2024 or at any time subsequently. The evidence shows that Mr. Mirosevich had no ability to deliver the pool shell the subject of the Contract to Ms. Gordon on 11 January 2024. It was only on the morning of 11 January 2024 that he sent an email transmission through to Luci Williams stating that he "required" the pool shell for delivery "next week." On Mr. Mirosevich's evidence, Ms. Williams told him not only that the pool was sold but that it had never been ordered for Ms. Gordon. Ms. Gordon's evidence also shows that Barrier Pools had told her that the order for the blue shimmer pool shell that Mr. Mirosevich had intended for Ms. Gordon had been suspended or cancelled in December 2023.
Further, even if delivery of the pool shell had been arranged for a specific date, Mr. Mirosevich was entitled to demand $27,475.00, and not $28,700.00, from Ms. Gordon. The basis for Mr. Mirosevich demanding the additional $1,225.00 was not explained by his evidence or submissions.

Whether there was right to terminate the Contract and whether it was exercised

The Tribunal is satisfied that the term of the Contract requiring the delivery Barrier Reef Brooklyn Slimline 8.2 x 3.5 m. pool and spa is properly characterised as a condition of the Contract, which afforded Ms. Gordon a right to terminate the Contract, upon the breach of the condition: Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 at 641 per Jordan CJ. This promise was essential to the Contract. The 30 September 2023 document specified the pool design type. The document identified the features of the Barrier Reef Brooklyn Slimline 8.2 x 3.5 m. pool and spa and then stated:

"There is no other pool that can offer all of these features."

That language used in the Contract points strongly to the promise to install the Barrier Reef Brooklyn Slimline 8.2 x 3.5 m. pool and spa as being essential to the Contract.
The Tribunal has also had regard to that language in the light of the Contract as a whole. The Contract specified the length, width, depth at both the shallow end and the deep end, and the water perimeter of the pool. It also specified the length, width, depth, and the water perimeter of the spa. The length and width of the copings around the shell were also specified. The Contract points to the CDC approval process and the need for architectural pool plans to be lodged and to go through the certification process as part of the installation process. The Contract, upon construing its language and it as a whole, points to the promise to install the Barrier Reef Brooklyn Slimline 8.2 x 3.5 m. pool and spa as being essential to the Contract.
Ms. Gordon had a right to terminate the Contract because of Mr. Mirosevich's breach of the essential term in the Contract referred to above.
Further or alternatively, the Tribunal is satisfied that Mr. Mirosevich had repudiated the Contract by 23 January 2024. The Tribunal does not reach such a conclusion lightly. However, the Tribunal is satisfied that the breaches of the Contract by Mr. Mirosevich, being (1) the failure to deliver the Barrier Reef Brooklyn Slimline 8.2 x 3.5 m. pool and spa to Ms. Gordon, (2) the breach of the varied term of the Contract to deliver the pool and commence the build by the Thursday of the second week in January 2024, and (3) the demand for a second payment under the Contract, in circumstances where no delivery of the pool shell referred to in the Contract was scheduled for delivery 7 days after the second payment under the Contract was made, mean that the Tribunal is satisfied that the conduct of Mr. Mirosevich was such as to convey to a reasonable person in the situation of the other party that he was renouncing the Contract as a whole or a fundamental obligation under it: Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; (1989) 166 CLR 623 at 659.
However, notwithstanding Ms. Gordon's text message of 23 January 2024 about cancelling the Contract, Ms. Gordon did not exercise the right to terminate the Contract at that stage for Mr. Mirosevich's breach, or accept the repudiation at that time.
The evidence shows that following the text message on 23 January 2024 about cancelling the Contract, that Ms. Gordon and Mr. Mirosevich engaged in further communications. The communications involved Mr. Mirosevich offering to provide substituted performance for his obligations under the Contract, and Ms. Gordon being prepared to entertain substituted performance by Mr. Mirosevich but only on the proviso that Mr. Mirosevich provide the substituted performance in a timely manner.
It is helpful to recall some of the salient events preceding Ms. Gordon's text message sent at 11.26 a.m. on 5 February 2024:

(1) On 23 January 2024, Ms. Gordon had sent Mr. Mirosevich the text message stating that she had decided that it was best to cancel the Contract.

(2) That text message prompted a timely response from Mr. Mirosevich. He spoke to Ms. Gordon on 23 January 2024 offering her alternative methods of performing the Contract such that the build of the swimming pool would just be needed to be pushed back another week.

(3) The text message from Ms. Gordon sent to Mr. Mirosevich on 25 January shows that she did not, by that date determine the Contract. However, Ms. Gordon's contentment to keep the contract on foot was subject to the provisos contained in her text message, including that the build "commences shortly" and that "regular updates be received." Ms. Gordon's text message also requested confirmation of Mr. Mirosevich's expectation of key dates for the scheduling and planning for the Contract performance.

(4) There were at this time, two avenues by which Mr. Mirosevich was proposing to offer substituted performance for his obligations under the Contract.

(5) The first option was for Barrier Reef Pools to provide a white pool shell. Purportedly in line with that proposal, Mr. Mirosevich sent Ms. Gordon a text message on 25 January 2024 which included "I was waiting for Barrier to reply. I'm happy if they don't reply by end of Tuesday ..."

(6) It is unclear how or why Mr. Mirosevich could be, as his text message suggested, waiting for anything from Barrier Reef Pools on 25 January 2024. Ms. Gordon's evidence, uncontradicted by Mr. Mirosevich, shows that Barrier Pools had already suspended the production of any pool associated with Mr. Mirosevich.

(7) In any event, there was no evidence that Barrier Reef Pools did reply by the following Tuesday, being 30 January 2024.

(8) The other option for substituted performance of the Contract, that had been suggested by Mr. Mirosevich, was for the larger pool and spa which he said he had purchased for his own home, to be provided to Ms. Gordon.

(9) This option was the only option then available on the facts of this case, at least after 30 January 2024, but in fact earlier because of Ms. Gordon's evidence, uncontradicted by Mr. Mirosevich, showing that Barrier Pools had already suspended the production of any pool associated with Mr. Mirosevich.

(10) There was the conversation on 29 January 2024 between Mr. Mirosevich and Ms. Gordon which included Mr. Mirosevich saying that he had spoken to the architect 'to update plans for the bigger pool', Ms. Gordon should call the architect herself, and 'all was on track, they should be done in a week or so and build would commence as soon as possible, possible week and a half.'

(11) Ms. Gordon herself contacted the architect firm PSQ on 5 February 2024. The architect from PSQ said that Mr. Mirosevich had not lodged a request through the appropriate pathway and had not provided any information so they could start the process and thus no work at all had commenced.

The language used in the 25 January 2024 text message where Ms. Gordon states "I am happy to continue with the pool build at this stage providing that ... and the build commences shortly" leads the Tribunal to conclude that Ms. Gordon's agreement to the substituted performance was premised upon Mr. Mirosevich commencing the pool build shortly. Time was of the essence in carrying out the proposed substitute performance, the Tribunal finds, as the 25 January 2025 text message suggests further delay was no longer acceptable to Ms. Gordon. That is because of the language used in the text message repeated in this paragraph of these reasons. That language is also considered in the light of the Contract as a whole, including the varied term (for the reasons explained above in these reasons) that Mr. Mirosevich had been obliged to commence construction of the pool on the Thursday of the second week in January 2024.
The Tribunal finds that Mr. Mirosevich had offered two alternative substituted methods of performance for his obligations under the Contract, which Ms. Gordon was prepared to entertain (see her 10.13 a.m. text message dated 25 January 2025), but only on the basis that he was obliged to achieve one of the two forms of substituted methods of performance that he had suggested, in such manner that the build would "commence shortly".
The evidence shows that Mr. Mirosevich then failed to deliver on either of those methods of substituted performance.
The first option, which was for Barrier Reef Pools to provide a white pool shell, was, for the reasons explained above, not available after 30 January 2024, if not earlier.
As for the second option, it must have been clear to Ms. Gordon on 5 February 2024, following her conversation with Kayt, that the build of the pool would not "commence shortly" when measured from 25 January 2024. Mr. Mirosevich had not lodged a request through the appropriate pathway and had not provided any information so they could start the process and thus no work at all had commenced. The evidence before the Tribunal was that no scheduling for a pool build could be done until the CDC was complete. Ms. Gordon understood that installation depended on the completion of the CDC process: see Ms. Ward's 'affidavit' at [4], last sentence. Thus, if a larger pool was now going to be installed at the Property, the updated CDC process to enable that had not been commenced and no scheduling for the steps needed as part of the pool build could be prepared. Further, by 5 February 2025, Mr. Mirosevich had failed to confirm any of his expected dates for any of the matters set out in the five points made at the end of Ms. Gordon's 25 January 2023 10.13 a.m. text message.
The Tribunal is satisfied that by 5 February 2025, Mr. Mirosevich had failed to deliver, and could not deliver, a substituted method of performance that would have enabled the build of the pool to "commence shortly".
Conclusion - In conclusion therefore, and as explained earlier in these reasons, by 23 January 2024, Mr. Mirosevich had breached a term of the Contract that the Tribunal is satisfied should be characterised as a condition, and accordingly, the breach gave rise to a right for Ms. Gordon to terminate the Contract. Further or alternatively, Mr. Mirosevich had repudiated the Contract by 23 January 2024.
However, Ms. Gordon did not at that point exercise her right to terminate the Contract or accept the repudiation. There was an agreement by Ms. Gordon with Mr. Mirosevich for him to achieve either of the two methods of substituted performance which he had proposed, but on the proviso that "the build commences shortly." But by 5 February 2024, Mr. Mirosevich had failed to achieve, and was unable to achieve, either of the two methods of substituted method of performance he had proposed and it was plain that the pool build would not "commence shortly".
On 5 February 2024, by text message sent to Mr. Mirosevich at 11.28 a.m., Ms. Gordon exercised her right to terminate the Contract for Mr. Mirosevich's breach of a condition in the Contract. Alternatively, she accepted Mr. Mirosevich's repudiation of the Contract and communicated her acceptance to him via the text message.
The $33,700.00 which Ms. Gordon paid for the Contract to be performed is a wasted expenditure, uselessly incurred by her. Wasted expenditure is a well-recognised head of loss following breach of contract. Ms. Gordon is entitled to an order for the return of the $33,700.00. For the reasons explained above in these reasons for decision, it is Mr. Mirosevich who is obliged, because of the evidence in the 4 January 2024 invoice about the deposit and the novation of the Contract, to pay the whole of the amount to Ms. Gordon.

There are a number of reasons why Mr. Mirosevich's application filed 8 April 2025 for $32,000 of "lost profits" must be dismissed.
First, it follows from the reasons set out above, that the Tribunal has found that Ms. Gordon terminated the Contract for Mr. Mirosevich's breach of an essential term in it, or further or alternatively, he repudiated the Contract and Ms. Gordon accepted his repudiation. The Contract was determined. The Contract was not performed to completion, because of Mr. Mirosevich's conduct. There was no occasion for him to achieve a profit on completion of the Contract in circumstances where his own conduct had led to the determination of the Contract.
Secondly, the Tribunal does not find that Ms. Gordon ever breached the Contract, by unlawfully terminating the Contract "prematurely". For the reasons explained above, Ms. Gordon was entitled to terminate the Contract, or alternatively, to accept Mr. Mirosevich's repudiation of the Contract, at the time she did.
Nor was there anything "premature" about Ms. Gordon's actions. Mr. Mirosevich's 7 February 2024 text message, responding to Ms. Gordon's determination of the Contract included the statement "Your request was for the pool to be delayed and installed Feb/March due to funding." That statement cannot be accepted by the Tribunal and it is not supported by any evidence before the Tribunal. In truth, for the reasons explained above, the Contract was to be performed by 5 January 2024 but there was a variation permitting Mr. Mirosevich to commence construction of the pool on the Thursday of the second week in January 2024. He failed to do so. On 23 January 2024, Ms. Gordon was entitled to determine the Contract. She refrained from doing so at that time as Mr. Mirosevich offered to achieve either one of two methods of substituted performance for the performance he was obliged to provide under the Contract. By 5 February 2024, it was plain that one of the methods was no longer available and the other could not be achieved in the timely manner that was of the essence in the agreement by which Ms. Gordon had entertained substituted performance by Mr. Mirosevich of his obligations under the Contract. The preceding statement by Mr. Mirosevich in the 7 February 2024 text message "Firstly your pool shell you requested in the white is built and ready for transport" is also a statement that cannot be accepted by the Tribunal. The evidence does not support Ms. Gordon making any such request for another pool shell to be built for her, let alone in a way that could be binding on her for the purposes of the law of contract; and how any such pool could have then been built and been ready for transport is contradicted by the evidence showing Barrier Reef pools had already by this time suspended production of pool shells for Mr. Mirosevich.
Thirdly, for Mr. Mirosevich to claim loss of profit damages in contract law, he needs to establish that he was ready, willing and able to perform the Contract.
Mr. Mirosevich's repetitive, and even verbatim text messages sent to Ms. Gordon on 9 February 2024 are of some concern to the Tribunal. One wonders what proper purpose was behind Mr. Mirosevich sending such messages, and sending them repetitively, to Ms. Gordon, at that time, apparently oblivious to Ms. Gordon's own responses to Mr. Mirosevich on that day, and in the light of the clarity of meaning conveyed in Ms. Gordon's preceding text messages.
In any event, and putting aside the concern mentioned, the sending of the messages do not prove that Mr. Mirosevich was ready, willing and able to perform the Contract at the relevant time. The Contract was already determined by then, either because Ms. Gordon had terminated it or alternatively because she had accepted Mr. Mirosevich's repudiation and communicated that acceptance to him.
As explained above in these reasons, not only did Mr. Mirosevich fail to deliver a Barrier Reef Brooklyn Slimline 8.2 x 3.5 m. pool and spa to Ms. Gordon, the Tribunal is satisfied that from December 2023, Mr. Mirosevich was unable to comply with that term of the Contract. The evidence of Ms. Gordon shows that the pool shell that had originally been intended by Mr. Mirosevich for Ms. Gordon was already cancelled, in December 2023, and the supplier, Barrier Reef pools, had suspended the production of any further shell associated with Mr. Mirosevich. The evidence of Mr. Mirosevich fails to show what, if anything, Mr. Mirosevich had done in response to Ms. Williams' email transmission dated 5 December 2023 seeking an "ASAP" response. The 11 January 2024 email transmission sent to Ms. Williams was sent too late if Mr. Mirosevich were to be able to deliver a Barrier Reef Brooklyn Slimline 8.2 x 3.5 m. pool and spa to Ms. Gordon. Finally, on Mr. Mirosevich's own evidence, Ms. Williams told him not only that the pool was sold but that it had never been ordered for Ms. Gordon.
Mr. Mirosevich has failed to discharge his burden of proving that he was ready, willing and able to perform the Contract.
Finally, even if, contrary to the reasons just given, Mr. Mirosevich had an entitlement to loss of profit damages, his evidence failed to establish the quantum of that alleged loss. He provided no evidence at all about what his costs would have been done had he performed the Contract, when compared to the Contract Price. He was of course directed on 23 January 2025 to lodge and serve evidence in support of his application against Ms. Gordon. He did lodge and serve evidence but nowhere in the evidence was there any of the primary material about his own costs, that he would need if he were to establish any loss of profits.

(1) The first respondent Richard Mirosevich is ordered to pay the applicant Justene Gordon $33,700.00 immediately.

(2) The application filed 6 June 2024 is otherwise dismissed.

(3) The application filed 8 April 2025 by Richard Mirosevich is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Administrative Tribunal Act 2013

Gordon v Mirosevich; Mirosevich v Gordon [2025] NSWCATCD 87;

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (31 paragraphs)

Legislation Cited (2)

Cases Cited (8)