Case background:
Daniel Roberts, the appellant, is a builder who operated through a company, DSD Builders Pty Ltd, which is now in liquidation. DSD was engaged by Goodwin Street Developments Pty Ltd (the respondent) under a building contract entered into on 10 July 2017 for the construction of student accommodation in Jesmond, NSW (the Contract), on land owned by the respondent (the Property). Work was well advanced when the parties fell out, DSD did no further work on the site after 2 March 2018.
The appellant then entered onto the Property and damaged the buildings and removed fixtures including doors, windows and stairs. On 19 March 2018, this damage was discovered by the respondent, which immediately terminated the Contract.
1. The first legal issue was about standing as whether the respondent was entitled to claim trespass.
At the time the damage was done to the site, the respondent was not entitled to exclusive possession of the site, therefore a claim in trespass was not able to be maintained (possession or the immediate right to possession being necessary for standing in a trespass to property claim)
2. The second issue in this case was how to quantum the award of damages. A claimant suing for damage to real property – caused by a breach of contract or a tort – has some choice as to how their claim for damages is quantified.
The primary judge quoted at [52] the statement made in Gagner Pty Limited v Canturi Corporation Pty Limited (2009) 262 ALR 691; [2009] NSWCA 413 (Gagner) at [30] (per Campbell JA, Macfarlan JA and Sackville AJA agreeing) that the fundamental objective of an award for damages in tort is to provide “that sum of money which will put the party who has been injured … in the same position as he would have been in had he not sustained the wrong for which he is now getting his compensation or reparation”.
In this case, Ms Chan [appearing for Mr Roberts] submitted that the measure of damages to permanent injury to the reversion is the diminution in the value of the reversionary interest and that she was not in a position to meet such a case. In any event, Goodwin had not adduced evidence of any diminution in value to its property. Rather, its evidence was directed to the cost of repair. The primary judge held that the loss for the damage done to the property is the reasonable cost of repairing the damage.
3. The third point to learn is that: Rectification/reinstatement damages are not merely a proxy for loss of capital value of the property. It is not generally necessary for the claimant to put on evidence that the cost of rectification is not disproportionate to any diminution in value, in the absence of the issue having been raised with evidentiary support by the defendant.
It is open for a defendant to seek to persuade the court that the costs of reinstatement should not be awarded. In the context outlined there is at least an evidentiary onus on the defendant to make out that such costs are unreasonable.
4. In this case, as noted, it is common ground that each of the boarding houses falls within class 1b of the BCA. The parties did not dispute that a boarding house is a “building” within the meaning of the Environmental Planning and Assessment Act, and thus within the meaning of that term in s 36(1). Nor is it disputed that the type of work undertaken fell within the types of work identified in the definition of “building work” in s 4(1). Accordingly, the statutory duty of care applied here.