Bell v Hunters Hill Council [2012] NSWSC 1522

Bell v Hunters Hill Council [2012] NSWSC 1522

Hunters Hill Council remained contractually bound under the deed to have the works carried out in accordance with the Works Conditions, including the condition restricting use of a hydraulic hammer. The evidence established that the contractor used rock hammers contrary to that condition, and the Council was therefore in breach of the deed. The plaintiff reasonably feared further damage after cracking had occurred and was entitled to recover reasonable mitigation expenses for surveillance cameras and private investigators, though the private investigator claim was reduced by 20%. The claim was not apportionable because the plaintiff's sole claim was against the Council for breach of the...

Jurisdiction
Australia
Judgment Date
12 December 2012
Procedural Posture
Action for Damages for Breach of a Deed Arising From Settled Equity Proceedings Originally Seeking an Injunction Against Alleged Nuisance / Principal Judgment After Hearing on Damages and Related Issues; Matter Stood Over for Mention
Outcome
Matter stood over for mention before Young J on 20 February 2013 at 9.30 am.
Legal Topics
['breach of Deed' 'mitigation of Damages' 'reasonable Mitigation Expenses' 'professional Fees as Damages' 'independent Contractor' 'apportionable Claims' 'costs']
['contract' 'damages' 'civil Procedure'] ['breach of Deed' 'mitigation of Damages' 'reasonable Mitigation Expenses' 'professional Fees as Damages' 'independent Contractor' 'apportionable Claims' 'costs']

Case Brief

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Procedural Posture

Action for Damages for Breach of a Deed Arising From Settled Equity Proceedings Originally Seeking an Injunction Against Alleged Nuisance / Principal Judgment After Hearing on Damages and Related Issues; Matter Stood Over for Mention

Legal Issues

  1. 1 ['Whether Hunters Hill Council breached the deed by failing to ensure that rock breaking or associated work was carried out with the use of a rock saw before use of a hydraulic hammer.' 'Whether alleged delays and design-related complaints amounted to breaches of the deed causing damage.' 'Whether the plaintiff could recover surveillance camera costs, private investigator costs, and legal costs as expenses incurred in mitigation of damage.' "Whether the plaintiff's claim was an apportionable claim under the Civil Liability Act 2002." 'What costs consequences and further procedural steps should follow.']

Ratio Decidendi

Hunters Hill Council remained contractually bound under the deed to have the works carried out in accordance with the Works Conditions, including the condition restricting use of a hydraulic hammer. The evidence established that the contractor used rock hammers contrary to that condition, and the Council was therefore in breach of the deed. The plaintiff reasonably feared further damage after cracking had occurred and was entitled to recover reasonable mitigation expenses for surveillance cameras and private investigators, though the private investigator claim was reduced by 20%. The claim was not apportionable because the plaintiff's sole claim was against the Council for breach of the...

Court Disposition

Matter stood over for mention before Young J on 20 February 2013 at 9.30 am.

Orders

  • ['Stand the matter over for mention before Young J on 20 February 2013 at 9.30 am.']