Legal Research
Cases
Cubic Metre Pty Ltd v C and E Critharis Constructions Pty Ltd

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

Link copied

Case Copied 1 May 2020 55 min read

Contents

On this page

Supreme Court

New South Wales

Medium Neutral Citation: Cubic Metre Pty Ltd v C & E Critharis Constructions Pty Ltd [2020] NSWSC 479
Hearing dates: 29 April 2020
Decision date: 01 May 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   Extend the time within which the summons is to be filed to 30 July 2019.

(2)   Extend the time within which the cross-summons is to be filed to 1 October 2019.

(3)   Grant leave to the plaintiff to appeal on ground 4 and allow the appeal.

(4)   Grant leave to the defendant to appeal on grounds 1 and 1A but dismiss the cross-appeal.

(5)   Set aside the order for judgment and interest made by Kennedy LCM on 4 June 2019 and the costs order made by Kennedy LCM on 25 June 2019.

(6)   In lieu of the orders in (5) above, make the following orders:

(a)   Judgment for the plaintiff (C & E Critharis Constructions Pty Limited) in the sum of $1.

(b)   Order the plaintiff (C & E Critharis Constructions Pty Limited) to pay the costs of the defendant (Cubic Metre Pty Ltd).

(7)   Reserve the costs of the proceedings in this Court.
(8)   Direct the parties to inform my Associate in writing within seven days of the date hereof whether they wish to be heard on the question of costs.
Catchwords:
APPEALS — Appeal from Local Court to Supreme Court — damages for breach of contract — whether magistrate erred by awarding damages for a loss that was not particularised or relied on at hearing

CONTRACTS — Remedies — Damages — where damages claimed for costs of rectifying defect in construction — whether magistrate erred in failing to award damages for rectification costs
CONTRACTS — Remedies — Damages — Remoteness of damage — whether claimed loss was reasonably in the contemplation of the parties
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 60, 98, 100
Home Building Act 1989 (NSW), ss 18B, 18E, Sch 4
Home Building Amendment Act 2011 (NSW)
Limitation Act 1969 (NSW)
Local Court Act 2007 (NSW), ss 39, 40
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 50.2, 50.3
Cases Cited: Alucraft Pty Ltd (in liquidation) v Grocon Ltd (No 2) [1996] 2 VR 386
Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54
Ashford Shire Council v Dependable Motors (1960) 104 CLR 139; [1960] HCA 87
Baltic Shipping Company v Dillon (1993) 176 CLR 344; [1993] HCA 4
Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Baume v Commonwealth (1906) 4 CLR 97; [1906] HCA 92
Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36
Café Du Liban Pty Ltd v Bespoke Garage Pty Ltd [2017] NSWSC 779
C Czarnikow Limited v Koufos [1969] 1 AC 350
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70
Hadley v Baxendale (1854) 9 Ex…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Cubic Metre Pty Ltd v C and E Critharis Constructions Pty Lt... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWSC 479
Decision Date: 01 May 2020

CaseChat Overview and Summary

In the case of Cubic Metre Pty Ltd v C and E Critharis Constructions Pty Ltd, the dispute centred around the award of damages for a breach of contract. The matter was heard in the Supreme Court of New South Wales, where Cubic Metre Pty Ltd appealed against a decision of the Local Court. The Local Court had found that C and E Critharis Constructions Pty Ltd had breached the terms of a contract, but the appeal was brought to challenge the extent of the damages awarded.

The primary legal issue before the Supreme Court was whether the magistrate had erred in awarding damages for a loss that was not specifically particularised or relied upon during the hearing in the Local Court. Cubic Metre argued that the damages for rectification costs were not adequately considered by the magistrate. Additionally, the court needed to determine if the claimed loss was within the contemplation of the parties at the time the contract was entered into, which would affect the enforceability of the damages.

The Supreme Court found that the magistrate had indeed erred in awarding damages for rectification costs without sufficient particularisation or reliance during the hearing. The court held that damages for such losses must be clearly identified and argued before they can be awarded. Furthermore, the Supreme Court ruled that the loss in question was not reasonably within the contemplation of the parties at the time the contract was made, thus limiting the extent of recoverable damages.

As a result, the Supreme Court allowed the appeal and reduced the damages awarded by the Local Court. The court clarified that the damages must be both specifically identified and argued in the proceedings to be recoverable, and they must fall within the scope of what the parties could reasonably foresee as a potential loss upon breach.

Orders