Case Reports

Damages for defective work - relevance of plaintiff's future intention

In Unique Building Pty Ltd v Brown & Anor [2010] SASC 106 (21 April 2010), the Full Court of the Supreme Court of South Australia determined that, because the only "reasonable" way to bring about conformity with the contract was by demolition and rebuilding, the cost of this was the appropriate measure of damages for breach of contract, rather than the cost of repairing and rectification.  The Full Court held that the future intention of the party seeking damages to rectify or continue with the contracted building was not relevant to the proper assessment of damages.  

In reaching this conclusion, the Full Court considered the approach of the High Court of Australia in Tabcorp Holdings Ltd v Bowen Pty Ltd [2009] HCA 8 , where their Honours held that the intention of the party seeking damages is only relevant to the question of "reasonableness" of rectification. 

The Full Court also applied the rule that, unless exceptional circumstances exist, a party may not raise an argument on appeal that has not been raised at trial.