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85 Princess Pty Ltd v Fleming

85 Princess Pty Ltd v Fleming

Case [2025] NSWSC 407 30 April 2025

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: 85 Princess Pty Ltd v Fleming [2025] NSWSC 407
Hearing dates: 10, 11, 12 February 2025
Date of orders: 30 April 2025
Decision date: 30 April 2025
Jurisdiction: Equity
Before: Brereton J
Decision:
See [149]

Catchwords:
CONTRACT – Breach of contract – whether warranties concerning building works were breached – where there was a breach of warranty – whether the purchaser is entitled to damages for breach of contract – whether purchaser is entitled to damages reflecting the cost of making the building conform to the contract – whether replacement of concrete slab is reasonable – where the warrantor discharged his evidentiary onus to show that replacement of concrete slab was not a reasonable course – where purchaser has not otherwise established loss – where purchaser is entitled to nominal damages – whether there should be an order for specific performance.

Legislation Cited:
N.A.

Cases Cited:
Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36
Building Insurers’ Guarantee Corporation v The Owners – Strata Plan No. 57504 [2010] NSWCA 23
Carbone v Fowler Homes Pty Ltd [2024] NSWCA 192
Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39
Fothergill v Rowland (1873) LR 18 Eq 132
J C Williamson Ltd v Lukey (1931) 45 CLR 282
Kirkby v Coote [2006] QCA 61
Metricon Homes Pty Ltd as trustee for Metricon Homes Unit Trust v Lipari [2024] NSWSC 566
Owners SP 92450 v JKN Para 1 Pty Limited [2023] NSWCA 114
Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34
Radford v De Froberville [1977] 1 WLR 1262
Renown Corporation Pty Ltd v SEMF Pty Ltd (2022) 110 NSWLR 246; [2022] NSWCA 233
Roberts v Goodwin Street Developments Pty Ltd (2023) 110 NSWLR 557; [2023] NSWCA 5
Robinson v Harman (1848) 1 Exch 850; 154 ER 363
Ruxley Electronics and Construction Ltd v Forsyth [1996] 1 AC 344
State on New South Wales v Stevens (2012) 82 NSWLR 106; [2012] NSWCA 415
Stone v Chappel (2017) 128 SASR 165; [2017] SASCFC 72
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8
Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd (2017) 94 NSWLR 108; [2017] NSWCA 27
Wolverhampton Corporation v Emmons [1901] 1 QB 515

Texts Cited:
Heydon, JD, Cross on Evidence (14th Aust ed, 2024, LexisNexis)
Heydon, JD, Leeming, MJ and Turner, PG, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2015)

Category: Principal judgment
Parties: 85 Princess Pty Ltd (Plaintiff)
Ian Alexander Fleming (Defendant)
Representation:
Counsel:
J Mack (Plaintiff)
Dr A J Greinke (Defendant)
Solicitors:
Litigation Specialists (Plaintiff)
MV Law (Defendant)

File Number(s): 2022/243968
Publication restriction: N.A.

JUDGMENT

Introduction

These proceedings concern a dispute about a concrete slab in an industrial building located at 16 Spongolite Street in the Australian Capital Territory. A company called Fleming Investments (ACT) Pty Ltd was relevantly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 85 Princess Pty Ltd v Fleming

Details

AGLC: 85 Princess Pty Ltd v Fleming [2025] NSWSC 407
Case: [2025] NSWSC 407
Decision Date: 30 April 2025

CaseChat Overview and Summary

The case of 85 Princess Pty Ltd v Fleming concerned a dispute over alleged breaches of warranties concerning building works. The plaintiff, 85 Princess Pty Ltd, claimed that the defendant, Fleming, had breached certain warranties in relation to the construction of a building. The matter was heard in the Supreme Court of Queensland. The plaintiff sought damages for breach of contract, specifically the cost of making the building conform to the contract, as well as an order for specific performance.

The court was required to decide several legal issues, including whether there was a breach of warranty, whether the plaintiff was entitled to damages for breach of contract, and whether the damages should reflect the cost of making the building conform to the contract. The court also needed to determine whether the replacement of a concrete slab was a reasonable course of action and whether the defendant had discharged his evidentiary onus to show that it was not. Finally, the court had to consider whether the plaintiff was entitled to nominal damages and whether there should be an order for specific performance.

The court found that there was a breach of warranty, but the plaintiff was not entitled to damages reflecting the cost of making the building conform to the contract. The court held that the defendant had discharged his evidentiary onus to show that replacement of the concrete slab was not a reasonable course, and the plaintiff had not established any other loss. Therefore, the plaintiff was only entitled to nominal damages. The court also found that there should be no order for specific performance, as the plaintiff had not demonstrated any significant prejudice that could not be remedied by damages.

In summary, the court found in favour of the defendant on the issue of damages, but awarded nominal damages to the plaintiff. There was no order for specific performance. The case highlights the importance of establishing a causal link between a breach of contract and any alleged loss in order to recover damages.

Orders