C and E Critharis Constructions Pty Ltd v Cubic Metre Pty Ltd

The appeal concerned a dispute between C and E Critharis Constructions Pty Ltd (the builder) and Cubic Metre Pty Ltd (the sub-contractor). The builder sought to appeal a decision of the primary judge, but the respondent argued that leave to appeal was required and that it should not be granted. The appeal was heard by Macfarlan and McCallum JJA in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether leave to appeal was required, given that the amount in issue was $99,999, which was just below the $100,000 monetary threshold stipulated in section 101(2)(r) of the *Supreme Court Act 1970* (NSW) for a strict right of appeal, and whether the builder had suffered any loss as a result of the sub-contractor's breach of contract. The builder had supplied and installed materials that were unfit for purpose, but the proprietors had paid the builder in full and had no intention of rectifying the work.

The Court of Appeal determined that leave to appeal was indeed required because the amount in issue was less than the statutory threshold. While the closeness of the sum to the threshold was a factor the court considered in its discretion, it ultimately found that the builder had not demonstrated any loss. The court reasoned that because the builder had been paid in full by the proprietors and there was no prospect of the builder being required to rectify the defective work, the builder had not suffered any damage flowing from the sub-contractor's breach. The legal principle applied was that a party seeking damages for breach of contract must prove they have suffered a loss.

Consequently, the Court of Appeal dismissed the builder's Notice of Appeal as incompetent and refused the application for leave to appeal. The applicant was ordered to pay the respondent's costs of both the application for leave to appeal and the appeal itself.