CJD Equipment Pty Limited v A&C Constructions Pty Limited & Ors [2011] NSWCA 188

CJD Equipment Pty Limited v A&C Constructions Pty Limited & Ors [2011] NSWCA 188

The proprietor failed to take reasonable steps in mitigation; if mitigatory actions had been taken, replacement of curtain wall would not have been necessary, so the loss claimed could and should have been avoided. The builder was not responsible for slab design imposed by the proprietor. Damages for BCA non-compliance were reduced based on evidence of omissions instructed by the proprietor and unaddressed by the trial judge.

Jurisdiction
Australia
Judgment Date
14 July 2011
Procedural Posture
Appeal and Cross Appeal / Court of Appeal Decision
Outcome
Appeal dismissed, cross-appeal allowed, damages and costs orders varied.
Legal Topics
['damages' 'mitigation of Loss' 'assessment of Damages' 'building Code of Australia (bca) Compliance']
['contract Law' 'building and Construction Law'] ['damages' 'mitigation of Loss' 'assessment of Damages' 'building Code of Australia (bca) Compliance']

Case Brief

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Procedural Posture

Appeal and Cross Appeal / Court of Appeal Decision

Legal Issues

  1. 1 ['Whether the proprietor failed to take reasonable steps in mitigation of loss' 'Whether the builder was responsible for BCA compliance' 'Assessment of damages for defects in slabs and curtain wall' 'Challenge to findings of fact by the trial judge']

Ratio Decidendi

The proprietor failed to take reasonable steps in mitigation; if mitigatory actions had been taken, replacement of curtain wall would not have been necessary, so the loss claimed could and should have been avoided. The builder was not responsible for slab design imposed by the proprietor. Damages for BCA non-compliance were reduced based on evidence of omissions instructed by the proprietor and unaddressed by the trial judge.

Court Disposition

Appeal dismissed, cross-appeal allowed, damages and costs orders varied.

Orders

  • ['Appeal dismissed' 'Cross-appeal allowed' 'Order (1) below set aside' 'Judgment for the plaintiff against the first defendant for $67,147 with effect from 14 May 2010' "Order (2) below varied: First defendant to pay 5% of the plaintiff's costs up to 28 August 2009" "Appellant to pay first respondent's costs of the...