Nutek Constructions Pty Ltd v Slotwinski

The appeals

1. The summons in the substantive appeal seeks that the orders made by the Appeal Panel be set aside and that either of the following orders be made: 5. Order that the appeal to the Appeal Panel below be dismissed and that in lieu thereof the decision and orders of the Tribunal given on 13 November 2019 be varied to the following: 1. Julia Charlotte Slotwinski is to pay Nutek Constructions Pty Ltd C/- Mr George Hayek - Harrington Lawyers 601 55 Harrington Street THE ROCKS NSW 2000 Australia the sum of $202,665.02 immediately. 2. Order that the set-off defence of Julia Charlotte Slotwinski to the applicant's claim is dismissed. 6. In the alternative, order that the proceedings be remitted to the Appeal Panel for further determination according to law.
2. The summons set out three grounds of appeal as follows: 8. There was no evidence to support the findings of the Appeal Panel that; a. the further works referred to at [84]-[85], with the exclusion of the lift, ("Further Works") were paid by the defendant separately to the Cutting Edge Contract or at all, b. there was no evidence that the Further Works had been constructed at the subject premises, c. There was no evidence of the defendant's actual costs of the Further Works. d. there was no evidence that the Cutting Edge contract sum of $1,398,600 had been paid. 9. The Appeal Panel erred in its construction of clause 1 of Attachment 2 of the Nutek Contract. Particulars a. The Appeal Panel omitted to give effect to clause 1 of Attachment 2 to the Nutek Contract to the effect that the contract price included a release by the defendant of a debt owed to her, or to persons associated with her by Constantine Kalantzis referred to in the Contract as the CTTT Debt ("Released Debt"). b. The Released Debt amounted to $250,000, c. The Appeal Panel miscalculated the addition of the contract variation of $13,000 to the Nutek Contract price in determining that the contract price was $1,663 million when the correct contract price was $2,019 million. 10. The Appeal Panel erred in its construction of the Nutek Contract to support the finding of the Appeal Panel that the Further Works included the lift. Particulars a. Prior to the Nutek Contract the lift was paid for separately to the Nutek Contract by the defendant and was an excluded item under the Nutek Contract. b. The Appeal Panel omitted to give proper effect to Schedule 3 and Attachments 1 and 3 of the Nutek Contract to the effect that the Nutek Contract excluded the Further Works and excluded the lift.
3. There is only one ground of appeal in relation to costs. That ground is, in effect, that if the Court sets aside the substantive decision of the Appeal Panel, there would be no basis in law for maintaining the orders of the Appeal Panel in relation to costs.
4. On 24 November 2020, Ms Slotwinski, acting for herself, filed a notice of motion seeking that Nutek's request for leave to appeal should be denied and, in the alternative, seeking security for costs of $37,098.50.
5. The notice of motion came before Garling J. His Honour noted that both parties treated the motion as if it were one for summary dismissal.
6. On 25 March 2021 Garling J made orders dismissing paragraph 9 of Nutek's summons, but otherwise dismissed the notice of motion and ordered that the costs of the notice of motion be costs in the cause: Nutek Constructions Pty Ltd v Slotwinski [2021] NSWSC 274.
7. Subsequently, in the submissions filed by Nutek for the hearing of the summons, Nutek abandoned reliance on the third appeal ground, being paragraph 10 of the summons.

Reasons of the Appeal Panel in the substantive appeal

1. In its reasons, the Appeal Panel first considered the approach taken by the Tribunal to the assessment of damages. The Appeal Panel noted the contract price of the Cutting Edge contract of $1,398,600. It noted the Nutek contract price of $1,650,000, to which there needed to be added an approved variation of $13,000, so that the total of the Nutek contract was $1,663,000.
2. The Appeal Panel then said (where the appellant is Ms Slotwinski and the respondent is Nutek): [83] On the Tribunal's findings, the appellant had already paid (under the Nutek Contract) $437,887. She was required to pay a further $1,398,600 to Cutting Edge to achieve a completed building (making a total of $1,836,487). She would have had to have paid $1.663m to Nutek had it performed its obligations and so that sum is deducted from $1,836,487 to arrive at $173,487 as the appellant's damages. Expressed another way, if the respondent paid the appellant that sum ($173,487), then the net amount paid out by the appellant (to Nutek and Cutting Edge) to achieve a completed building would have been $1.663m, which is the sum she had contracted to pay Nutek for the completed works (with the added variation). [84] However, in that calculation was an implied assumption that the Nutek and Cutting Edge Contracts were relevantly identical (allowing for the work done for which the appellant had paid $437,887) and the appellant's point on appeal is that they were not. The appellant submits that the Cutting Edge Contract did not contain all of the work contained in the Nutek Contract but which was required to be done to achieve the completed work. She submitted these further works (all being PC items except for one) were paid by her separately from, and not to or on behalf of, Cutting Edge. [85] She submitted that those further works were the lift, plumbing fixtures, electrical fittings, floor and wall tiling supply, carpet supply, door furniture, bathroom accessories and appliances. [86] We agree with the appellant's submissions. [87] The Nutek Contract was in the form of the March 2015 version of the Housing Industry Association's standard form NSW Residential Building Contract for Renovations and Additions. It contained a number of Schedules. The contract price (amongst other matters) is contained in Schedule 1, progress payments are dealt with in Schedule 2, excluded items in Schedule 3, description of work in Schedule 4, "Other Contract Documents" are identified in Schedule 5, warranty insurance in Schedule 6 and prime cost and provisional sum items in Schedule 7. [88] One of the "Other Contract Documents" referred to in Schedule 5 is Attachment 1. Attachment 1 is a table listing 54 separate items, identifying whether an item was a PC item, the budget for each item (totalling $1.65m incl GST for the 54 items, being the contract price excluding the variation), payments made and the balance owing for each item. [89] Included in Attachment 1 are the following items together with the budgeted cost for each item: a lift ($65,000), plumbing fixtures ($15,000), electrical fittings ($20,000), floor and wall tiling supply ($20,000), carpet supply ($15,000), door furniture ($3,000), bathroom accessories ($3,000) and appliances ($15,000). All of those items other than the lift are identified as PC items. [90] The Cutting Edge Contract was in the form of the August 2012 version of the Housing Industry Association's standard form NSW Residential Building Contract for Renovations and Additions. It was similar in form to the Nutek Contract but not identical. [91] The contract price (amongst other matters) is contained in Schedule 1, progress payments are dealt with in Schedule 2, excluded items in Schedule 3, description of work in Schedule 4, warranty insurance in Schedule 5 and prime cost and provisional sum items in Schedule 6. There is no "Other Contract Documents" schedule in this contract. [92] Amongst the Excluded items in Schedule 3 of the Cutting Edge Contract are lift supply, all tiles, electrical fittings and all PC items. [93] Schedule 3 references cl 18.1 of the Cutting Edge Contract which says: "Ms Slotwinski and the builder agree that the items set out in Schedule 3 are excluded from this contract." (Emphasis original) [94] Schedule 6 had the notation "See attached". What was attached was a list headed "PC ITEMS / PROVISIONAL SUMS". That list included the lift, plumbing fixtures, electrical fittings, tiling supply, carpet, door furniture, bathroom accessories and appliances. Next to each of those items was a notation "BY OWNER SUPPLY". [95] Therefore, on the evidence, we are satisfied that the items identified above were included in the Nutek Contract and excluded from the Cutting Edge Contract. [96] The respondent submits that these various items were, for various reasons, not a payment by the appellant to Nutek for work completed, the Nutek works did not reach the stage for these items and that the "deducted amounts" did not form part of the Nutek Contract. It was further submitted that the fact the appellant chose to exclude these items from the Cutting Edge Contract "does not mean that they amount to payments to" the respondent. [97] These submissions are, with respect, misplaced. They do not address the correct method of calculating the appellant's damages. The fact is, as we have explained above, those items were included in the Nutek Contract (and the respondent obtains the benefit of that inclusion in the calculation) and were not included in the Cutting Edge Contract. The result of that is that they must be accounted for in order to place the appellant in the position she would have been in had the respondent not repudiated the Nutek Contract. [98] The appellant submits that the value or cost of those items was as quantified by Thomas Lee, an expert called by the appellant to value the building works. Mr Lee's evidence was accepted by the Tribunal (in preference to the evidence given by the respondent's expert). [99] Mr Lee valued the items we have identified at pp. 39 and 41-45 of his report. He valued them as follows: lift $60,000, plumbing fixtures $15,000, electrical fittings $20,000, floor and wall tiling supply $20,000, carpet supply $15,000, door furniture $3,000, bathroom accessories $3,000 and appliances $15,000. There was evidence that the appellant had actually paid $58,733 for the lift and not Mr Lee's estimated cost of $60,000 and so the actual figure should be preferred to the estimate. [100] Therefore, the cost of those further items totalled $149,733. [101] It follows, when those items are accounted for and the proper Nutek Contract price used, the appellant's damages were the Cutting Edge contract sum ($1,398,600), plus the total of the amounts paid to or on behalf of the respondent ($437,887), plus the cost of the further items ($149,733) less the Nutek Contract sum ($1.663m) leaving a balance owing to the appellant of $323,220. [102] As the appellants loss is $323,220 the respondent has no claim in quantum meruit because the amount paid by the appellant and the amount of appellants loss exceeds the value of the quantum meruit.

Nutek's submissions

1. Nutek submitted that under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) it has a right of appeal to the Supreme Court on a question of law against any decision made by the Tribunal in the proceedings. It should be said here that this submission is incorrect, because s 83(1) provides that a party to an internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court. The appeal to the Appeal Panel was an internal appeal. It will be necessary later to say something of the need for leave.
2. Nutek submitted that a common law ground of no evidence is an appeal on a question of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [90]. That submission may be accepted.
3. Nutek made reference to the affidavit that Ms Slotwinski was directed by the Registrar to file and serve, which was to identify any evidence relied on in opposition to the no evidence ground. Nutek submitted that none of the documents or other matters identified by Ms Slotwinski comprised evidence.
4. Nutek submitted that both Senior Member Blake and the Appeal Panel determined the matter on the basis of the contract price of the Cutting Edge contract rather than on the actual costs paid by Ms Slotwinski. Nutek submitted that the contract did not constitute evidence of the cost to complete. In that way, also, the expert report from Thomas Lee did not constitute evidence of the actual cost to complete the building.
5. Ms Slotwinski submitted that the evidence she relied on was included in the court books of both the second appeal and the remitted proceedings. There were four matters in particular, being: (1) the Cutting Edge contract, schedule 3 and schedule 6; (2) the Cutting Edge contract attachment PC items/provisional sums; (3) the Thomas Lee report; and (4) the affidavit by Nicholas Kalantzis of 31 July 2017.
6. Ms Slotwinski submitted that, in relation to the matters identified in ground 8, only the first matter was contained within the Appeal Panel's determination. She submitted that the Appeal Panel did not make any findings as to the matters in paragraphs (b), (c) and (d). Ms Slotwinski referred to what was said by the Appeal Panel in paragraphs [84]-[86], [92]-[95] and [97]-[98] of its judgment.
7. Ms Slotwinski submitted that there was evidence before the Appeal Panel that the Further Works (identified in paragraph [85] of the Appeal Panel's decision) had been constructed. She identified the evidence of Mr Kalantzis, where he said he viewed the Certificate of Practical Completion issued by Cutting Edge and that he viewed a rental appraisal of Mr Aitchison on 8 June 2017. Ms Slotwinski submitted that, by inference, she must have paid for these works.

Need for leave

1. In Ackerman v Morgan [2019] NSWSC 1250, Walton J considered the principles to be considered in deciding whether leave to appeal should be granted. His Honour made reference to a number of decisions of the Court of Appeal, particularly Be Financial Pty Ltd v Das [2012] NSWCA 164 and Chapmans Ltd v Yandell [1999] NSWCA 361. His Honour then said: [53] The relevant principles may be summarised as follows: (1) An applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at, and that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute: Carolan. (2) Ordinarily it is appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar at [46]. (3) The leave requirement is a preliminary procedure "recognised by the legislature as a means of enabling the Court to control in some measure the volume of appellate work requiring its attention": Coulter at 356 (Mason CJ, Wilson and Brennan JJ). Whilst that was a criminal matter, the statement is clearly applicable to civil, as well as criminal, appellate jurisdiction: Be Financial at [32]-[36] (per Basten JA, with Tobias AJA agreeing). (4) A requirement of leave to appeal is intended to act as a filter to ensure that unsuitable appellant proceedings are not able to be brought, with the demands they place upon the resources of the Court and the burden they place upon other parties and the delays which they cause to other litigants: Chapmans at [11] per Fitzgerald JA (with whom Mason P and Davies AJA agreed). (5) An application for leave is not a proceeding in the ordinary course of litigation but a preliminary procedure: Collins v The Queen (1975) 133 CLR 120 at 122; [1975] HCA 60. (6) Section 58 of the Civil Procedure Act applies and requires the Court to consider "the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction": s 58(2)(b)(vi). Leave should be granted only where there are substantial reasons to allow an appellate review (Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564; [2000] FCA 1572, such as where there is an error of principle which, if uncorrected, will result in substantial injustice. [54] Where there is no question of principle, leave to appeal will usually be refused (see example, Jaycar; Zelden; Be Financial at [32]-[36] (per Basten J, with Tobias AJA agreeing); De Armas v Peters [2015] NSWSC 1050 per Wilson J (which matter concerned an application for leave to appeal against a Local Court interlocutory judgment under s 40(2), no injustice and no question of wider importance, leave refused); Rose v Tunstall [2018] NSWCA 241 at [33]-[34].
2. In Ashi Pty Limited v Karasco Investments Pty Ltd [2009] NSWSC 780, I considered the principles that apply to a need for leave to appeal against costs orders. That case concerned s 40(2)(c) of the Local Court Act 2007 (NSW), but the principles apply more widely.
3. In that case, I said: [34] The result is, in my opinion, that the party seeking leave to appeal needs to point to some other matter which in justice requires that leave to appeal be granted. [35] Ashi was not able to identify any additional matter over and above the error of principle or law which the Magistrate was said to have made, apart from an assertion that it had suffered a detriment. In my opinion, it could reasonably be expected that any party appealing or seeking leave to appeal had suffered a detriment. That in itself cannot be an additional matter that justice requires leave to be granted. [36] Ashi conceded that if the correct order was made, namely, that Ashi pay Dr Farmer's costs, the net difference between that and the order currently made was about $15,000. By way of contrast, s 101(2)(r) Supreme Court Act 1970 requires leave to appeal to the Court of Appeal from a final judgment of this Court where the matter at issue is less than $100,000. Further, s 101(2)(c) (like s 40 Local Court Act 2007) requires leave to appeal to the Court of Appeal from an order as to costs only. [37] Whilst a direct comparison cannot be made between s 101(2)(r) which is concerned with an appeal to the Court of Appeal, and the appeal that can be made with leave to this Court from the Local Court under s 40, those two provisions suggest that where the matter, in the first instance, is concerned only with a costs order and, in the second instance, only concerns approximately $15,000, there would need to be some significant further factor to justify leave being granted. … [40] Ashi's main submission why leave should be granted was because the Magistrate, it was argued, had made an error of principle resulting in Ashi having to pay more costs than it properly should have done. I shall now deal with Ashi's submissions in this regard and return to the question of leave later in this judgment.
4. What was said there has been followed in a number of cases subsequently, including Ackerman v Morgan, Stephen Kirkman v Commissioner Department of Corrective Services [2013] NSWSC 833, Onik New Energy Australia Pty Limited v Henderson [2016] NSWSC 186 at [10]; and Pratten v Johns [2010] NSWSC 327 at [24]-[25].

Determination

1. Ground 8 is worded in a manner that is not easy to understand. For example, in relation to ground 8(b) it reads, "There was no evidence to support the findings of the Appeal Panel that there was no evidence that the Further Works had been constructed at the subject premises". That appears to be asserting that the Appeal Panel found that there was no evidence that the Further Works had been constructed. Similar comments can be made in respect of paragraphs (c) and (d). That does not seem to be what is intended.
2. Nutek's submission in relation to the appeal ground seems to suggest that what is meant is that there was no evidence before the Appeal Panel that the Further Works were paid by Ms Slotwinski separately to the Cutting Edge contract, that there was no evidence that the Further Works had been constructed, that there was no evidence of the actual costs of the Further Works, and that there was no evidence that the Cutting Edge contract sum had been paid by Ms Slotwinski.
3. On that basis, Ms Slotwinski's submission that the Appeal Panel made no findings of the matters in paragraphs (b), (c) and (d) is correct. The only finding made was one in accordance with paragraph (a). That was the finding made at paragraphs [84] - [86]. It was the acceptance of Ms Slotwinski's submission that she had paid for the Further Works. It does not appear that the Appeal Panel was taken to evidence of actual payment for the Further Works.
4. In that way there was no evidence of actual payment, but that was not what the Appeal Panel actually found, because that was not the way the case was run either before it, or before Senior Member Blake. The case was argued on precisely the basis that the Appeal Panel (and Senior Member Blake) determined it.
5. It is important, therefore, to understand the basis for the Appeal Panel's approach to assessing the damages.
6. At the hearing before Senior Member Blake, Mr Archibald of counsel for Nutek said in submissions that there was a repudiation of the contract, there was a wrongful termination of the contract, and the liquidated damages clause did not apply in that situation, so that it was necessary to fall back on general contractual damages. He then went on to deal with the submissions of Mr Kozlowski, the solicitor for Ms Slotwinski, in relation to the cost of completion. The transcript then reads: MR ARCHIBALD In relation to the method of Mr Kozlowski to work out the extra cost that he claims Ms Slotwinski incurred, we don't complain about that. We accept that what should happen is that we're dealing with the amount of the Cutting Edge contract, which is the $1,398,600 figure, that Mr Kozlowski started with, and then we add the amounts which he paid under this contract, and that amount, which we were discussing before lunch, was the $517,411. We accept that methodology as the starting equation, however, our complaint, as it were, is with the $517,000 figure, which --- MEMBER BLAKE: So, you set out, you then deduct. MR ARCHlBALD: Deduct. Yes. Yes. MEMBER BLAKE: Deducts the amount you pay under the contract, with Nutek. MR ARCHIBALD: No. No, you don't. You start with the amount he paid Cutting Edge, the $1,398,000 figure. You add what he paid under the contract with Nutek, and then you deduct the Nutek contract price. MEMBER BLAKE: Okay. MR ARCHIBALD: And the Nutek contract price is $1,650,000. So, that's the figure that's taken off. MEMBER BLAKE: Yes. Which is one million --- MR ARCHIBALD: 650,000 was the Nutek contract. So, we're looking at any extra Ms Slotwinski might have paid. MEMBER BLAKE: Yep. MR ARCHIBALD: So, now we're looking at the $517,411 figure, which was based on the table at page 55R. As I understand Mr Kozlowski, unless I'm missing something, he added the $330,999 and then $170,512. Although, he did reach a total paid, which I think differs from that total. I'm sorry. I've used the same total. That gives him the $517,000 figure, 512, as I understand it.
7. Putting aside the figure of $517,411, it may be seen that the methodology put forward on behalf of Nutek was the methodology first adopted by Senior Member Blake and thereafter the Appeal Panel. Senior Member Blake said in his judgment: 45. … What amount is Ms Slotwinski entitled to set-off against the amount owing to the builder for the additional cost to complete the building works and loss of rent. 46. Ms Slotwinski contended that the additional cost to complete the Building Works is $880,189 calculated by deducting $518,511.00 (being the total of the amounts paid to the builder or on its behalf under the Nutek Contract as claimed in her points of defence) from $1,398,600.00 (being the contract price under the Cutting Edge Contract). 47. The builder contended that the additional cost to complete the Building Works Is $186,487.00 calculated by adding $1,398,600.00 (being the contract price under the Cutting Edge Contract) to $437,887.00 (being the total of the amounts paid to the builder or on its behalf under the Nutek Contract) and deducting $1,650,000.00 (being the contract price under the Nutek Contract). 48. I find that the correct methodology to determine the additional cost to complete the Building Works is as contended by the builder, and accordingly Ms Slotwinski is entitled to damages of $186,487.00.
8. In the Appeal Panel's judgment, it noted the submissions of the parties before Senior Member Blake as follows: [76] The appellant submitted that her damages were equal to the Cutting Edge contract sum ($1,398,600) less the total of the amounts paid to or on behalf of the respondent ($518,511) leaving a balance owing to her of $880,089. [77] The respondent submitted that the appropriate calculation was to add the Cutting Edge contract sum ($1,398,600) to the total of the amounts paid to or on behalf of the respondent ($437,887) and then deduct the Nutek Contract sum ($1.65m) leaving a balance owing to the appellant of $186,487.
9. The Appeal Panel then went on to adopt the same approach in the paragraphs of the judgment I have set out at [28] above.
10. Although Nutek now wishes to submit that it was not appropriate to rely on the Cutting Edge contract price rather than evidence of the actual costs of completion of the Further Works, no submission was made on behalf of Nutek to that effect, either to Senior member Blake nor to the Appeal Panel. Moreover, if Nutek considered that Senior Member Blake had adopted the wrong approach in taking the contract price and the amounts in Mr Lee's report, rather than actual costs paid by Ms Slotwinski, its failure to appeal or to cross-appeal from Senior Member Blake's judgment stands in its way of a successful appeal to this Court.
11. Even at the hearing of Ms Slotwinski's appeal to the Appeal Panel, Nutek made no submission to the Appeal Panel that actual costs should have been the basis of any decision. Of course, such a submission could scarcely have been made, since it was Nutek who had put forward the methodology for the calculation of damages before Senior Member Blake.
12. A reading of the transcript before the Appeal Panel shows that the focus was on the issue raised by Ms Slotwinski concerning whether the Further Works were within the Nutek contract. Although Mr Archibald pointed to an exchange between Senior Member Curtin and Ms Slotwinski, where the senior Member asked her where the evidence was of the cost of the items estimated in the Lee report, and Ms Slotwinski replied that it was not seen as relevant for the reasons she gave, the matter went no further, with Senior Member Curtin saying that he understood her point.
13. Before the Appeal Panel, Nutek relied on lengthy written submissions, prepared by its lawyers. In addition, the director of Nutek, Nicholas Kalantsis appeared before the Appeal Panel. It was not submitted at any time before the Appeal Panel that the approach taken by Senior Member Blake was the wrong approach, or that there was no evidence about whether and how much Ms Slotwinski had paid. Indeed, at paragraph 80 of those submissions, Nutek's lawyers said: Accordingly, there was no error of law in relation to the calculation of the cost to complete.
14. In fact, there was evidence of actual payment contained in the affidavit of Mr Kalantsis sworn 31 July 2017, which was before both Senior Member Blake and the Appeal Panel, although not specifically referred to by the parties. In paragraph 18, Mr Kalantsis said that he had reviewed a General Ledger Report produced by Cutting Edge, and he observed that the total sum of $1,289,323.63 plus GST was paid to Cutting Edge to complete the project. That figure, when GST is added, almost approximates the figure referred to as the Cutting Edge contract price at paragraph [101] of the Appeal Panel's judgment. The small difference would not have affected the outcome of the Appeal Panel's judgment in any way.
15. The Appeal Panel noted at [99] the evidence of Mr Lee. Mr Lee valued the items identified as the Further Works. Those amounts accorded, in any event, with the allowances for PC items set out in attachment 1 to the Nutek contract.
16. Nutek had submitted to the Appeal Panel, as the Appeal Panel recorded at [96], that those items did not amount to a payment by Ms Slotwinski to Nutek for the work completed. The Appeal Panel said at [97], however, that that submission did not address the correct method of calculating Ms Slotwinski's damages. The Appeal Panel was correct in that determination.
17. Nutek is bound by the way the case was conducted both at first instance and on appeal to the Appeal Panel. It is not now open to it to contend that there was no evidence to support findings which, perhaps, should have been made if the case had been conducted as Nutek now contends. On the way the case was conducted, there was evidence to support the findings of the Appeal Panel, at [83] and [87] - [94] of its decision.
18. The question arises whether Nutek has demonstrated that leave ought to be given to appeal in any event. No general principle is involved. The Appeal Panel went about its task in the way Nutek submitted it ought to. Even if that methodology was wrong, leave ought not to be granted because the Appeal Panel was led into error by the approach of Nutek. There is no injustice to Nutek.
19. There is a further reason leave should not be granted. There have been two hearings at first instance before a Tribunal member and two appeals. In addition, Ms Slotwinski has commenced proceedings in this Court to give effect, in a sense, to the equitable set-off which she was entitled to raise before the Tribunal, although that entitlement did not result in her obtaining any damages. Nutek will be able to defend those proceedings. In all those circumstances, even if I had considered that the Appeal Panel had erred, I would not have granted leave to appeal.
20. It follows from the refusal of leave to appeal that leave should also be refused to appeal against the costs orders made by the Appeal Panel. The defendant is self-represented in the proceedings. Any costs will be confined to reasonably incurred disbursements.

Conclusion

1. I make the following orders: 1. In proceedings 2020/327546, leave to appeal is refused. 2. The summons in proceedings 2020/327546 is dismissed. 3. The plaintiff is to pay the costs of those proceedings. 4. In proceedings 2021/158356, leave to appeal is refused. 5. The summons in proceedings 2021/158356 is dismissed. 6. The plaintiff is to pay the costs of those proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2021