Ashell Homes Constructions Pty Ltd v Kobus

Ashell Homes Constructions Pty Ltd appealed to the Supreme Court of Victoria, Court of Appeal, against an award of damages made by a primary judge in favour of Kobus. The central dispute concerned whether the primary judge had denied the appellant procedural fairness by awarding damages on a basis that had not been properly run or considered during the trial.

The Court of Appeal was required to determine whether the primary judge’s decision to award damages on a basis different from that presented by the parties at trial constituted a denial of procedural fairness to the appellant. This involved considering whether the appellant had a sufficient opportunity to address the alternative basis for damages and whether the award was within the scope of the case as it had been litigated.

The Court of Appeal found that there had been a denial of procedural fairness. Their Honours reasoned that the primary judge had awarded damages on a basis that was not foreshadowed or argued by the parties, thereby depriving the appellant of the opportunity to present its case or make submissions in relation to that specific basis for the award. Consequently, the appeal was allowed, and the matter was remitted to the primary judge for redetermination. The respondents were ordered to pay the appellant's costs of the appeal.