Creeper v Cooper - [2012] SADC 94

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CREEPER v COOPER
[2012] SADC 94
Judgment of His Honour Judge Boylan
24 July 2012
CONTRACTS - PARTICULAR PARTIES - VENDOR AND PURCHASER - GUARANTEES CONTAINED IN CONTRACTS AND COLLATERAL PROMISES
CONTRACTS - PARTICULAR PARTIES - VENDOR AND PURCHASER - DISCLOSURE OF MATERIAL FACTS
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS
Plaintiffs purchased a house from the defendants. The contract contained a warranty that, to the vendors' knowledge, no building work had been done without necessary consents and approvals having been obtained. Some work had been done without such consents and approvals.
Held, defendants liable for breach of warranty but plaintiffs entitled to nominal damages only because plaintiffs did not rely on the warranty.
Argy and Anor v Blunts and Ors (1990) ATPR 41-015; Bryan v Maloney (1995) 182 CLR 609; Perre v Apand (1999) 198 CLR 180, considered.

CREEPER v COOPER
[2012] SADC 94

Mr Andrew Creeper and his partner Ms Julie-Anne Baliga bought a house from Mr and Mrs Cooper. The contract of sale provided that, to the Coopers’ knowledge, no building work had been done on the property without necessary consents and approvals having been obtained. It turned out that some work had been done without council consent and Mr Creeper and Ms Baliga now claim that they have suffered damage as a result of breach of warranty by the Coopers.
In my judgment, the Coopers breached the relevant warranty but because the plaintiffs did not rely upon the warranty, the breach is not causative of any damage and they are entitled to nominal damages only.
Undisputed matters
In 1993, Mr and Mrs Cooper bought a house at 48 Whiting Road, St Agnes for them and their four sons. St Agnes is in the Tea Tree Gully Council area. The house did not have enough bedrooms but it had, under the main roof, a double garage made of brick with a concrete slab floor. Fairly soon after they moved into the house, Mr and Mrs Cooper converted the garage into three small bedrooms thus making the house a five-bedroom one. Mr Cooper did much of the work himself with help from his then father-in-law, who was a licensed brick-layer. As part of the conversion, the two arched entrances to the original garage were turned into windows the frames of which sat upon some new low brick walls and a new concrete slab was poured. The interior of the garage was then turned into three bedrooms by using timber framed walls and gyprock cladding. Because Mr and Mrs Cooper lost protection for their cars when they converted the garage into bedrooms, Mr Cooper, in 1998, built a timber carport at the front of the house. Mr Cooper did not obtain council approval for the conversion of the garage or for the building of the carport. Approval was required for both, in particular for the infill of the arched entrances and the waterproofing of the new slab in the garage conversion and for the general construction of the carport.
Although the Coopers had the converted garage area treated to prevent the entry of termites, there was an infestation some time after the conversion was completed. The termites were eradicated and some repair work done at the cost of the company which had originally treated the area, that company having admitted liability for the infestation. Thereafter the Coopers had no further trouble with termites and three of their sons used the bedrooms for many years. There is no sign of any cracking or other stress in the modified wall (or in any of the walls) in the converted garage. The carport has stood and been used, without incident, since 1998 but, owing to the use of non-approved timber and inadequate support for the posts, it needs significant repairs and bracing.
In May 2004, the Coopers put the house on the market as they were moving to Melbourne where Mr Cooper was by then working. They engaged Mr Phillip McBride, a land agent, who was personally known to them as his children attended the same Christian school as the Cooper boys. The Coopers left Adelaide and were living in Melbourne by the time Mr Creeper and Ms Baliga first inspected the house.
Mr Creeper and his partner Ms Baliga were then living with Ms Baliga’s 21 year old daughter in their two bedroom house at Pooraka. They were looking for a larger house because Ms Baliga’s 19 year old son and her daughter’s boyfriend wanted to move in with them. Having inspected the Cooper house, they signed a contract to buy it for $370,000. It was a standard form contract which contained the following clause:
5.6 Warranties by the Vendor
The Vendor warrants except as set out in the Schedule:
5.6.1 …
5.6.2 That to the Vendor’s knowledge, no building work has been carried out on the land without all necessary consents and approval having been obtained;
5.6.3 …
And the Schedule to the contract contained this clause:
N. Alterations, repairs and improvements erected without consent [Clause 5.6.2]
“NIL”.
The contract settled on 4 September 2004. Late on that day, Mr Creeper was at the house and noticed a loose skirting board in one of the three bedrooms in the converted garage. He is a qualified tradesman. Using tools which he had in his car, he went to repair the loose skirting board. When he did so, he discovered evidence of the old termite infestation. Over the next couple of weeks, he removed all of the timber frame work and cladding which Mr Cooper had installed, leaving the area almost as it had been before the conversion. Some time after he had stripped off the last of the gyprock, Mr Creeper removed some bricks and discovered that the brick course under the windows had been laid directly onto pavers and without a damp proof course. It was owing to that method of construction that the termites had been able to enter some years earlier. There was no termite infestation at settlement of the contract of sale and what Mr Creeper had found was evidence of the earlier infestation.
Some days after making his discovery, Mr Creeper telephoned the Tea Tree Gully Council and was told that the garage conversion and the timber carport had been built without council approval.
Mr Creeper and Ms Baliga remained in their house at Pooraka until January 2007 when they sold it. They then moved into the house at Whiting Avenue, St Agnes but with only Ms Baliga’s daughter. Attempts to resolve this dispute failed and these proceedings were issued in April 2006. The amended Statement of Claim was filed in June 2007.
The Witnesses
Andrew Creeper
Mr Creeper was 42 when he and Ms Baliga bought the Coopers’ house. He was then a qualified and experienced tradesman who had worked in the building industry since leaving school.
Mr Creeper was not impressive in the witness box. He made unfounded assertions on occasions, sometimes exaggerated, tailored his evidence to suit his case, and was keen to suggest that Mr McBride was biased in favour of the Coopers. I give some examples.
Mr Creeper said that, when he first inspected the house, he could tell that the original garage had been modified to create three small bedrooms. He was then asked whether, at that first inspection, he had had any discussion with Mr McBride about those modifications. He answered:
AI believe he had said something to the effect that they all had council approval.
He was then pressed on the issue:
Q     Why do you believe that, was it something you asked?
A.Look, I may have asked him that directly or he may have thrown it in as a sort of reassurance for me perhaps.
Q.Can you recall the conversation or not?
A.No, not exactly.
There was no reason for Mr McBride to have mentioned council approval at that first inspection: the issue arose only after Mr Creeper had signed the contract. In my view, Mr Creeper’s suggestion that Mr McBride told him of council approval was without any basis and was made in an effort to bolster his case.
When talking about first signing the contract, Mr Creeper said that clause 5.6.2 stood out and went on to talk about flicking through documents which included council approvals. But there is no doubt that, on 26 June 2004, when he signed the contract, Mr Creeper did not have any council documents before him; he was not given those documents until 29 June when Mr McBride gave him the Form 1.
He tailored his evidence at times to suit his case. For example, at page 63 of the transcript, when being asked if he had read in the contract a number of pages of fine print Mr Creeper answered:
I wouldn’t suggest I read it word for word but I glossed over the important things and I’m really good at picking sort of picking details off pages.
Just as it suited his case for him to emphasise that he was good at picking up details, it did not suit his case that he was, indeed, an experienced tradesman. When asked to describe his knowledge of building work, he answered that he had “minor general knowledge”.
He exaggerated; for example, by describing the brick pavers on which walls had been built as being “fully disguised” and so implying that that part of the building work had been deliberately hidden. And he described the lateral sway of the carport as extending “horrendously far”.
He made a point of mentioning what he asserted Mr McBride had said about the Coopers being “good people and God-fearing Christians”. He did so, I think, to create the impression that Mr McBride was biased in favour of the Coopers on account of the school connection between his children and theirs.
Mr Creeper is nowhere near as sure of events as he would have the court believe. His confidence in his own memory is misplaced, he has reconstructed some events and, as I have said, on occasions he tailored his evidence to suit his purposes.
Ms Julie Baliga
Ms Baliga’s evidence was that, while she was generally aware of what was going on, she left the details relating to the purchase for the property to Mr Creeper. She was quite frank about being able to recall some things but definite – I think, too definite – about others. For example, when it was put to her that Mr Creeper had said to Mr McBride that the converted garage area was a bit of a rabbit warren, Ms Baliga said:-
I think they may actually have been my words and I say that because they would be the words that I would use and that was my first feel of walking into that space. Especially regarding bedroom 3, because it was long and narrow.
She was anxious to further explain herself on that topic and did so in re-examination:
I just wanted to say that it was just a feeling of walking into the room, it was my first impression. I may well have, you know, thrown it at Andy ‘Would it be possible to make it into two more usable size rooms as opposed to three tiny little ones?’ I don’t recall. I didn’t specifically say it to Mr McBride. He may have overheard me if I had thrown it out at Andy. It was amongst it.
And later in re-examination she said:
It was very small and rabbit warren-y. And I don’t recall saying it, but I could imagine that it would be me because I was throwing my actions around, making this suit us and I may well have said ‘Is this an option?’ I may have thrown it at Andy ‘Is this an option to turn this space into two rooms?’ That’s what we wanted. We weren’t talking about straight away.
In his evidence, Mr Creeper denied that he had ever told Mr McBride of any intention to open up the converted garage area while Ms Baliga was very anxious to explain how it was that Mr McBride formed the view that that may have been their intention. In my view, she and Mr Creeper feared that the evidence about their intention to open up the converted garage would damage their case. I think she has reconstructed some of her evidence.
Ashley Cooper
Ashley Cooper has diplomas in accounting and health administration and holds a Masters Degree from Flinders University in Health Services and Management. In more recent years, he has worked as the Chief Executive Officer of hospitals.
Mr Cooper was a straightforward witness. He did not appear to me to exaggerate or to do anything other than give the clearest account that he could of his recollection of relevant matters.
Susan Cooper
I am satisfied that Mrs Susan Cooper was an honest witness although she was not able to advance matters much. She left the dealings with Mr McBride about the sale of their house to her husband. The effect of her evidence is that she left everything in his hands and trusted him. I accept that she did so.
Mr McBride
Mr McBride’s evidence is crucial. I have examined it closely. I have not overlooked the fact that he is wrong about some matters and there was an inconsistency in his evidence. Documents showed him to have been wrong about the time at which he listed Mr Creeper’s and Ms Baliga’s Pooraka house for sale; he gave two different explanations for knowing that the original garage had been converted into three small bedrooms; and he was unable to produce a diary for a relevant period. None of those matters shake my faith in his honesty or in his reliability on important matters. He was being asked to remember events and conversations that occurred many years ago and which were not of any great significance at the time. Nor is there anything sinister in the fact that one of his former staff members must have lost a diary.
Mr McBride gave evidence that Mr Creeper said on more than one occasion that he and Ms Baliga were going to open up the garage area by converting it into a games room. That is important evidence because it goes to the issue of Mr Creeper’s and Ms Baliga’s reliance on any representation made about council approval. I have considered Mr Mc Bride’s evidence on that topic in light of all of the other evidence and in light of the impressions which Mr Creeper and Ms Baliga made upon me when they were giving evidence. I am satisfied that Mr McBride was honest and that he is reliable on important matters, especially about his conversations with Mr Creeper. I shall return to them in my narrative of findings.
Where the evidence of Mr and Mrs Cooper and Mr McBride differs from the evidence of Mr Creeper and Ms Baliga, I prefer the evidence of the Coopers and Mr McBride.
Findings
The following narrative constitutes my findings of fact.
In his capacity as a health administration manager, Mr Cooper has had some very limited involvement in building works, namely, the installation of internal partitions and doors to create and divide office space. His involvement in those works did not require him to obtain consents or approvals from government authorities.
During their marriage, Mr and Mrs Cooper bought investment properties as part of their superannuation planning. On properties which they had bought prior to selling the house at St Agnes, they did no building works other than the installation of air conditioners. They did no work which required planning approval. In those circumstances, Mr Cooper had not had to turn his mind to council consent for building works prior to the sale of the house at St Agnes other than on one occasion when he was building a pergola there. On that occasion, he only became aware of the need for planning approval when he ordered timber from a timber merchant. The merchant told him that planning approval would be required. It is plain from the plan of the house which was before me, that that was a major structure in comparison with the carport, the subject of these proceedings. Even though he became aware of the need for approval for the pergola, Mr Cooper remained unaware that he should have obtained approval for the garage conversion and the erection of the carport. In the same way, Mrs Cooper was unaware, at the time of the signing of the contract, that she and her husband should have obtained the relevant consents and approvals before proceeding with the garage conversion and the building of the carport.
On a day in the week leading up to Saturday 26 June 2004, Mr Creeper and Ms Baliga inspected the Coopers’ house. Mr McBride was there and he and Mr Creeper discussed whether or not any offers to purchase had already been made and how much Mr Creeper would have to offer to buy the house. On 26 June, Mr Creeper and Ms Baliga again attended at the house, this time with Ms Baliga’s daughter. While there, Mr Creeper made a firm offer of $370,000. He made that offer in the knowledge that he and Ms Baliga would have to borrow the whole purchase price and that their banker was prepared to lend only $340,000. Mr Creeper’s offer was unconditional and he asked that it be put to the Coopers. While they were all still at the house, Mr McBride filled in the necessary details on the standard form contract and Mr Creeper and Ms Baliga signed it. At some time on the same occasion, there was some discussion about the converted garage area being congested. Ms Baliga referred to it as a “rabbit warren”. Mr Creeper said words to the effect “Look, that area I am going to turn into a rumpus/games room.” His saying so is not inconsistent with his and Ms Baliga’s wanting a five-bedroom house: her children were adults and any plan for them to live with her and Mr Creeper could only have been a short term one.
After the meeting at the house on 26 June, and before 29 June, Mr McBride rang Mr Cooper in Melbourne to discuss the offer. The Coopers decided to accept it and Mr McBride faxed to them a copy of the contract already singed by Mr Creeper and Ms Baliga. The Coopers signed the contract and faxed it back. Although there is no evidence of a phone call, I infer from the Coopers’ acceptance of the offer and from the fact that, late on 29 June, Mr McBride met with Mr Creeper and Ms Baliga that Mr McBride had telephoned them prior to that meeting for the purpose of arranging a meeting. Accordingly, I infer that the Coopers communicated their acceptance of the offer through their agent Mr McBride during the course of that call to Mr Creeper.
Mr McBride met Mr Creeper and Ms Baliga at the house at St Agnes on 29 June. He explained to them the “cooling off” period and handed them the Form 1 documents. Between telephoning Mr Creeper to arrange the meeting and the meeting itself, Mr McBride had more closely inspected the council searches. Until then, he had had no occasion to do so. Having done so, he was satisfied that the garage had been converted without council approval. He did not bother to speak to Mr Cooper about that because he knew that Mr Creeper would not be concerned about it, owing to the latter’s intention of opening up the area. Nevertheless, Mr McBride was aware of his duty of disclosure, so he took with him to the meeting copies of the council searches which his broker had earlier provided to him. Mr McBride was not obliged to produce those searches but he did so to make it plain to Mr Cooper that council approval had not been obtained. During that same meeting, Mr McBride discussed the possibility of obtaining retrospective approval and he emphasised the importance of having a building inspection. In response to the suggestion about retrospective approval, Mr Creeper said that the three bedrooms were going to be removed in any event and he declined the building inspection, saying “I am in the building game and I know of these things”.
For the following reasons, Mr Creeper and Ms Baliga did not rely on the warranty in clause 5.6.2 in respect of the garage conversions or the carport:
·Mr Creeper was prepared to offer $370,000 to buy the house upon his second inspection without having a building inspector inspect the house and provide a report.
·Having been told that the garage had been converted without approval, he chose not to make any further enquiries about consent or approval but to rely upon his own skill and judgment.
·He must have known that the timber carport had been built to replace the original garage and yet, again, he chose to make no further enquiries once he had been alerted to the fact that the garage conversion did not have the necessary council consent and approval.

Mr Creeper and Ms Baliga did not cool off and the contract eventually settled.
Was there a breach of warranty?
The plaintiffs rely upon clause 5.6.2 in the contract and upon paragraph N in the Schedule to the Contract. Clause 5.6.2 and the relevant paragraphs in the schedule read as follows:-
5.6.1No notices, orders or charges have been issued or received in respect of the Land, any boundary fence or any road or footpath abutting the land which have not been complied with;
5.6.2That to the Vendor’s knowledge, no building work has been carried out on the land without all necessary consents and approval having been obtained;
M    Notices, Orders or Charges issued or received [Clause 5.6.1] “Nil”
N     Alterations, Repairs and Improvements erected without consent [Clause 5.6.2] “Nil”
O     Known Encroachments and Fences not on Boundaries [Clause 5.6.3] “No known encroachments”
P Known breaches of Strata Titles Act 1988, Community Titles Act 1996, the Articles or by-laws of the corporation [Clause 5.3.1] “N/A”
5.6.3The Vendor is not aware, and gives no warranty, that any improvements on the land encroach on any adjoining land or on an easement on the Land, nor that any improvements upon any adjoining land encroach upon the Land, nor is the Vendor aware that any fence, wall or party wall is not on the correct boundary or alignment of the Land.
Whether or not there has been a breach of the warranty depends upon the proper construction of clause 5.6.2 and the Schedule. The defendants argue that “knowledge” in clause 5.6.2 means “actual knowledge” and therefore, because Mr and Mrs Cooper had no knowledge when they signed the contract of the necessity for council consent for the garage conversion and carport construction, they cannot be in breach of the warranty. I do not accept that argument.
Clause 5.6.2 is to be construed reasonably and objectively in the context of the whole document including the schedule. The difficulty is the proper construction of the word “knowledge”. I have found its use elsewhere in the contract of little assistance as it is used elsewhere in contradistinction to such words as “believe” and “aware”. It is curious that neither of those words is used in sub-clause 1 of clause 5.6. It seems to me, though, that the Schedule provides some possible assistance in that it refers to “known” encroachments in paragraph P but “known” is not used in paragraphs M and N which refer to the matters set out in sub-clauses 1 and 2 of clause 5.6. If clause 5.6.2 is to have the meaning for which the defendants contend, then one would have expected the word “known” to have appeared in paragraph N of the Schedule. Taking those matters into account and acknowledging some straining of language in my construction, I am of the view that clause 5.6.2 is to be understood as meaning that, to the extent that the vendors know that building work has been done on the land during their ownership, they warrant that all necessary approvals and consents were obtained for such work. That is, the clause is to be construed positively. On that construction, even though Mr and Mrs Cooper were unaware of the necessity to obtain the relevant approvals and consents, I find that they were in breach of the warranty. But because the plaintiffs did not rely upon the warranty, the breach was not causative of damage and they are entitled to nominal damages only.
Was there a misrepresentation?
In my view, the warranty in clause 5.6.2 contains a positive representation that all the necessary consents and approvals had been obtained for the building work done by the Coopers during their ownership including, of course, the garage conversion and the timber carport. But because Mr Creeper and Ms Baliga did not rely upon that representation, they were not induced by it to enter the contract and the Coopers are, therefore, not liable in damages for misrepresentation.
Has there been a breach of the Fair Trading Act?
The plaintiffs pleaded a breach of the Fair Trading Act which, in turn, depends upon the contract having been made in trade and commerce. This contract was for nothing more than the sale of the family house because Mr Cooper’s employment meant that the family had to move to Melbourne. Such a transaction is not one in trade and commerce. See Argy and Anor v Blunts and Ors (1990) ATPR 41-015 per Hill, J at p.51,274. There, his Honour said:-
The question to be determined is whether the owner of a house, by selling it, does so in trade or commerce. It could scarcely be said that a person who sells his home, whether by private treaty or by auction and whether he conducts the negotiations personally or through a real estate agent, is undertaking what he does in the course of a trade or business or in a business context.
Mr and Mrs Cooper did not sell their house as part of any scheme or plan to acquire superannuation. It was sold solely because they were obliged, on account of Mr Cooper’s employment, to move to Melbourne. The Coopers are not liable for damage under this head.
Was there a breach of contract on the basis that the house was not a five bedroom house?
I dismiss this part of the plaintiffs’ claim. Mr Creeper and Ms Baliga bought a house which contained a number of rooms, five of which had been used as bedrooms by the previous owners. It was not a term of the contract that the house had any number of bedrooms. Even if it were, the plaintiffs acquired a house that contained five bedrooms all capable of being used as bedrooms, including the three rooms in the garage conversion. There was no need for Mr Creeper to destroy those bedrooms as he did.
Did the Defendants breach a duty of care as builders?
The plaintiffs’ claim that the defendants owned them a duty of care as owner/builders to “ensure the physical integrity of the house” and to ensure that building work was “performed with due care and skill in accordance with prevailing legislation, regulation and Codes”. This claim is made in respect of the garage conversion only. The plaintiffs relied on the High Court’s decisions in Bryan v Maloney (1995) 182 CLR 609 and on the “vulnerability test” in Perre v Apand (1999) 198 CLR 180.
Even if the defendants owed concurrent duties in contract and in tort, I would dismiss this part of the plaintiffs’ claim. As I said earlier, the garage conversion is structurally sound; the converted wall shows no signs of stress and there has been no trouble with termites since the plaintiffs purchased the house. Accordingly, their claim in tort can relate only to the defendants’ failure to obtain council consent. They offered no authority for the proposition that an owner owes a duty of care to a purchaser to obtain such consent. That is not surprising as purchasers in the position of the plaintiffs are adequately protected in contract from the defendants’ failure to do so. I dismiss this part of the claim.
Damages
If I am wrong about liability, then I should assess damages.
The plaintiffs called Mr Stephen Pike, a competent and experienced builder who gave evidence that the cost of bringing the garage conversion and carport up to a standard that would satisfy the Tea Tree Gully Council’s requirements for approval is $120,000 plus GST. On the other hand, Mr Richard Liney, an engineer called by the defendants, gave an estimate of $13,000.
I have considered the evidence of both of those witnesses carefully. Mr Pike was plainly an honest witness but there were a number of unsatisfactory aspects to his evidence. I give a few examples. He would not make concessions where they obviously should be made: he insisted that a builder could be liable for defective work even when it had been done in strict accordance with an engineer’s specifications. He placed much reliance on his ability to test any dampness in a concrete slab floor by covering it for a short period of time with a piece of rubber matting and then seeing if there was moisture on the floor when the matting was removed but he was very reluctant to accept that the proper way to test for dampness is with the appropriate measuring instrument. On the topic of moisture measurement, he did not include in his report that there was evidence of moisture in the slab but insisted in his evidence that there was such moisture. He included in his estimate the cost of footings without having checked to see that there were adequate footings already present. He was very reluctant to admit that a slab can be chemically treated for waterproofing and comply with the relevant section or sections of the Building Code. He only begrudgingly conceded that Mr Liney’s solution for damp proofing the garage conversions eastern wall to bring it up to council standard was acceptable.
Mr Liney is, as I said, a qualified engineer who has had experience in damp proofing existing buildings. He has suggested a solution to the problem with the eastern wall in the garage conversion and produced a plan demonstrating how that solution works. While Mr Pike insisted that the carport must be demolished and replaced, Mr Liney gave evidence that it could be brought up to standard by replacing some of the timber work and by bracing the now free standing carport to the eaves of the house. He said that he would certify work done in accordance with his plans. There is no suggestion in the evidence that council approval would not be given for works so certified. Mr Liney was a professional and straightforward witness who impressed me. Even though he was never asked for a detailed breakdown of the costs of bringing both the garage conversion and the carport up to standard, he gave a confident “guesstimate” of $5,000 for each of them together with a fee of something in the order of $3,500 for the necessary architect’s and engineer’s work.
I prefer Mr Liney’s estimate of the costs of remedial work to that of Mr Pike. Accordingly, if the plaintiffs are entitled to damages I would fix damages at $15,000. I have rounded up Mr Liney’s figure to allow for what would probably be minor contingencies.
The Plaintiffs’ claim in respect of their Pooraka house.
The plaintiffs claimed that the garage conversion was unfit for habitation and unsafe and that, therefore, they could not move into the St Agnes house with Ms Baliga’s children and her daughter’s boyfriend. Instead, they claim that they were obliged to remain at their Pooraka house and to pay bank administration charges and interest on mortgage payments on their Pooraka house from the date of settlement on St Agnes in September 2004 until the time when they sold the Pooraka house in 2007.
There is no substance in that claim. The plaintiffs did not establish in evidence that the garage conversion was unfit for habitation or unsafe in the condition in which they found it at settlement. As I mentioned earlier, the Cooper boys had lived in it without incident for many years and there is no suggestion that there had been any further infestation by termites. They could have sold the Pooraka house and applied the proceeds of sale to attending to such rectification works as they thought necessary thus mitigating their asserted damage. They did not do so. They have shown no necessity for them to continue to reside at Pooraka and, they suffered no compensable loss arising from their doing so.
There will be judgment for the plaintiffs for nominal damages which I fix at $10.00