Burns v Lovett Building Co Pty Ltd

In *Burns v Lovett Building Co Pty Ltd* [1995] NSWCA 65, the New South Wales Court of Appeal considered a dispute between the appellant, Mr. Burns, and the respondent, Lovett Building Co Pty Ltd. The case concerned a claim for damages arising from alleged breaches of a building contract.

The primary legal issue before the Court of Appeal was whether the trial judge had erred in finding that the respondent had substantially performed its obligations under the building contract, thereby entitling it to payment despite certain defects. The court also had to consider the appropriate measure of damages to be awarded to the appellant for the defects that did exist.

The Court of Appeal affirmed the trial judge's finding of substantial performance, holding that the defects were minor and did not go to the root of the contract. The court applied the principle that substantial performance means that the work done is of the kind contracted for, and that any deviations or defects are not so serious as to deprive the other party of the benefit of the contract. Regarding damages, the court determined that the appropriate measure was the cost of rectifying the defects, rather than a diminution in value, as the defects were capable of being remedied.

The appeal was dismissed, and the orders of the trial judge were upheld.