Carbone v Fowler Homes Pty Ltd; Carbone v Fowler Homes Pty Ltd

In the matter of *Carbone v Fowler Homes Pty Ltd*, the New South Wales Court of Appeal considered an appeal from a decision of the District Court concerning a dispute between owners and a builder regarding residential building work. The primary dispute arose after the builder completed the work, and the owners sought damages.

The Court of Appeal was required to determine whether the owners' pleaded case extended to a claim for damages for breach of contract, as opposed to claims for deceit and statutory unconscionability. It also had to consider whether the trial had been conducted on a basis that departed from the pleadings, whether the primary judge erred in excluding valuation evidence and concluding there was no evidence of loss, and the effect of the owners' delayed payment of progress claims on their claims for damages.

The Court of Appeal allowed the appeal in part, varying the District Court's order regarding damages. The Court found that the primary judge had erred in excluding certain valuation evidence and in concluding that there was no evidence of loss. The Court's reasoning involved a careful consideration of the pleadings and the evidence presented at trial, particularly in relation to the calculation of damages. The Court also made specific orders concerning the payment of the judgment debt and interest, and directed the parties to agree on short minutes of order regarding costs in both the Court of Appeal and the District Court.