Camuglia v Housman & Ors [2020] NSWDC 446

Camuglia v Housman & Ors [2020] NSWDC 446

The balcony damage was not causally linked to the defendants' breaches, but the defendants were liable for the admitted damage to the stairway, stair stringer and paving slabs. The plaintiff was entitled to recover reasonable rectification costs for that damage because there was no evidence that reinstatement costs were disproportionate, and the possible future demolition of the property did not make rectification costs inappropriate. The mitigation defence failed because there was no evidence the plaintiff unreasonably withheld consent to repairs and she was not required to repair the defendants' damage at her own cost. The plaintiff was also entitled to consequential loss for lost rent,...

Jurisdiction
Australia
Judgment Date
14 August 2020
Procedural Posture
Civil Proceedings Seeking Damages in Nuisance, Negligence and Pursuant to S 177(2) of the Conveyancing Act 1919 (nsw) / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff in the sum of $218,601.85; costs to be determined on the papers if notification is given, or otherwise the Court will order that the defendant pay the plaintiff's costs.
Legal Topics
['nuisance' 'negligence' 'consequential Loss' 'rectification Costs' 'mitigation of Loss' 'quantum' 'damage to Land']
['civil' 'tort' 'property Damage' 'construction'] ['nuisance' 'negligence' 'consequential Loss' 'rectification Costs' 'mitigation of Loss' 'quantum' 'damage to Land']

Case Brief

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Procedural Posture

Civil Proceedings Seeking Damages in Nuisance, Negligence and Pursuant to S 177(2) of the Conveyancing Act 1919 (nsw) / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether damage to the balcony was caused by the defendants' excavation work." "Whether the cost of rectification was the appropriate measure of damages for the damage to the plaintiff's property." 'Whether the plaintiff failed to mitigate her loss.' 'Whether the plaintiff was entitled to consequential loss for lost rent and, if so, in what amount.' 'Quantum of rectification damages excluding balcony damage.']

Ratio Decidendi

The balcony damage was not causally linked to the defendants' breaches, but the defendants were liable for the admitted damage to the stairway, stair stringer and paving slabs. The plaintiff was entitled to recover reasonable rectification costs for that damage because there was no evidence that reinstatement costs were disproportionate, and the possible future demolition of the property did not make rectification costs inappropriate. The mitigation defence failed because there was no evidence the plaintiff unreasonably withheld consent to repairs and she was not required to repair the defendants' damage at her own cost. The plaintiff was also entitled to consequential loss for lost rent,...

Court Disposition

Judgment for the plaintiff in the sum of $218,601.85; costs to be determined on the papers if notification is given, or otherwise the Court will order that the defendant pay the plaintiff's costs.

Orders

  • ['Judgment for the plaintiff in the sum of $218,601.85;' 'That any party wishing to be heard on the question of costs notify my associate of that desire on or before noon on 18 August 2020 ("Notification");' 'That in the event of Notification, the notifying party shall file and serve any evidence and submissions on...