Atlanta Building Pty Ltd v Abela (No 3) - [2025] NSWSC 730

Supreme Court

New South Wales

Medium Neutral Citation: Atlanta Building Pty Ltd v Abela (No 3) [2025] NSWSC 730
Hearing dates: 30 June – 1 July 2025; further submission 2 July 2025
Date of orders: 09 July 2025
Decision date: 09 July 2025
Jurisdiction: Equity - Technology and Construction List
Before: Peden J
Decision:
(1)   Second defendant to pay the plaintiff $196,577.23;
(2) Second defendant to pay the plaintiff interest pursuant to s 100 Civil Procedure Act 2005 (NSW) on items in paragraph [110];
(3)   Summons otherwise dismissed;
(4)   Parties to confer and by 14 July 2025 provide in a single communication to the Chambers of Peden J agreed costs orders or the parties’ competing costs orders;
(5)   Each solicitor on the record to provide to the Chambers of Peden J by 14 July 2025 an affidavit setting out:
(a)    that they have explained to their clients the reasons in this judgment and the inherent and legislative jurisdiction of the Court in relation to professional costs charged by legal practitioners;
(b)    the various sums invoiced to their clients by way of professional costs and disbursements (including counsel), and their intention to invoice further sums to their client and the quantum; and
(c)    reasons why the Court’s inherent jurisdiction or the procedure in Supreme Court Practice Note SC Gen 5 ought not be invoked;
(6)    The matter is listed for further directions on 16 July 2025 at 9.30am.

Catchwords:
CONTRACTS – Breach of contract – Remedies – Damages – Expectation damages – Quantification of expectation loss – Whether evidence adduced by plaintiff sufficient to establish extent of expectation loss occasioned by repudiation – Whether plaintiff expected to adduce further evidence to establish expectation loss – Plaintiff’s evidence insufficient – No damages awarded on head as claimed
CONTRACTS – Breach of contract – Remedies – Damages – Limits on recovery – Remoteness – Where plaintiff claims loss in form of wages paid to carpenters retained on construction of defendants’ residence – Where plaintiff’s employment of carpenters not brought to defendants’ attention prior to retention – Whether loss natural result of defendants’ repudiation of contract – Whether second defendant assumed responsibility for loss – Loss too remote – No damages awarded on head as claimed
CONTRACTS – Recovery on quantum meruit – Nature of claim in quantum meruit – Free acceptance – Where plaintiff effected further construction works at defendants’ request – Whether plaintiff entitled to restitution for construction work outlaid – Contract in favour of plaintiff inferred from defendants’ request for further construction works

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56, 99, 100

Cases Cited:
123 259 932 Pty Ltd v Cessnock City Council (2023) 110 NSWLR 464
Atlanta Building Pty Ltd v Abela [2024] NSWSC 1193
Atlanta Building Pty Ltd v Abela (No 2) [2024] NSWSC 1510
Biggin & Co Ltd v Permanite Ltd [1951] 1 KB 422
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Durban Roodepoort Deep Ltd v Newshore Nominees Pty Ltd [2005] WASCA…

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.

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Details

Case: [2025] NSWSC 730
Decision Date: 09 July 2025

CaseChat Overview and Summary

The case of Atlanta Building Pty Ltd v Abela (No 3) involved a dispute between the plaintiff, Atlanta Building Pty Ltd, and the defendants, Abela, concerning breach of contract and the appropriate remedies. The plaintiff, a construction company, alleged that the defendants had repudiated a contract to construct a residence, leading to a claim for damages. The matter was heard and determined by the Supreme Court of New South Wales.

The primary legal issues in the case related to the quantification of expectation damages and the limits on recovery in the event of a breach of contract. The court had to determine whether the evidence adduced by the plaintiff was sufficient to establish the extent of the expectation loss caused by the repudiation, and whether the loss claimed was a natural result of the breach. Additionally, the court examined whether the plaintiff was entitled to recover expenses on a quantum meruit basis for further construction works carried out at the defendants' request.

In its judgment, the court found that the plaintiff's evidence regarding the extent of the expectation loss was insufficient, and as a result, no damages were awarded on that head. The court also determined that the loss claimed in the form of wages paid to carpenters retained by the plaintiff was too remote, as the defendants had not been made aware of the plaintiff's employment of carpenters prior to the retention. Furthermore, the court found that the second defendant had not assumed responsibility for the loss, thus reinforcing the remoteness of the claimed loss. Consequently, no damages were awarded on this head as well. However, the court did infer a contract in favour of the plaintiff for the further construction works carried out at the defendants' request, and held that the plaintiff was entitled to restitution for those works on a quantum meruit basis.

In conclusion, the court's final orders were that no damages were awarded to the plaintiff for expectation loss or for the wages paid to the carpenters. However, the plaintiff was granted restitution for the further construction works carried out at the defendants' request, on a quantum meruit basis.

Orders