Bak v Glenleigh Homes Pty Ltd

The appeal in *Bak v Glenleigh Homes Pty Ltd* concerned a dispute arising from a contract for building works. The appellant, Mr. Bak, had entered into a contract with the respondent, Glenleigh Homes Pty Ltd, for the construction of a dwelling. Mr. Bak alleged that Glenleigh Homes had breached the contract, and that this breach had caused him substantial damages. The matter was heard in the Supreme Court of New South Wales, Court of Appeal, before Handley, Hodgson and McColl JJA.

The central legal issues before the Court of Appeal were whether the alleged breach of contract by Glenleigh Homes was causative of substantial damages suffered by Mr. Bak, and how damages for the loss of a chance should be assessed, particularly in relation to the estimation of probabilities. Furthermore, the Court considered the principles of mitigation, specifically when the duty to mitigate damage arises for an innocent party who is unaware of the facts giving rise to the breach. The Court also had to determine whether to admit further evidence on appeal and, if so, whether a new trial should be ordered.

The Court of Appeal allowed the appeal, setting aside the orders made by the court below. Their Honours reasoned that the original trial judge had erred in their assessment of damages and the application of legal principles. The Court found that the issue of causation and the assessment of damages, particularly concerning the loss of a chance and the duty to mitigate, required further determination. Applying the principles of s 75A(9) of the *Supreme Court Act 1970* (NSW), the Court determined that a new trial was necessary to properly resolve these questions.

Consequently, the matter was remitted to the District Court for a new trial. The costs of the first trial and the appeal, with specific exceptions for the application to adduce further evidence and the second hearing, were to abide the outcome of the new trial. The respondent was ordered to pay the appellant's costs for the application to adduce further evidence and the second hearing, with a potential certificate under the Suitors' Fund Act.