CONTRACT – Breach – Damages for loss of use and enjoyment of property – Whether property owner entitled to damages measured as wasted expenditure on property during delay period – Availability of damages for wasted expenditure governed by general principles of contractual damages – Payments made in respect of property during delay without benefit to owner appropriate measure of damages for loss of use – The Owners of the Steamship ‘Mediana’ v The Owners, Master and Crew of the Lightship ‘Comet’ [1900] AC 113, Pix v Suncoast Marine Pty Ltd [2019] QSC 45, considered – Notice of contention upheld.
PRACTICE AND PROCEDURE – Appeal from Victorian Civil and Administrative Tribunal on question of law – Judge decided issues of mitigation and costs – Whether issues suitable to decide or required remittal – Osland v Secretary, Department of Justice (2010) 241 CLR 320, applied – Hoser v Department of Sustainability and Environment (2014) 203 LGERA 96, considered – Considerations of convenience may permit Court to decide issue on uncontested facts found by Tribunal – Issue of mitigation appropriately decided on basis of uncontested findings and written submissions, avoiding further delay – Issue of costs complex and evaluative and required consideration by the Tribunal –Victorian Civil and Administrative Tribunal Act 1998 s 148(1).
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr…
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.
Leeda Projects Pty Ltd (the builder) brought an appeal against Zeng (the owner) from a decision of the Victorian Civil and Administrative Tribunal, which found that the builder had breached its contractual obligations to complete the works in a reasonable time. The primary dispute related to the amount of damages awarded to the owner for loss of use and enjoyment of the property due to the delay in completion. The Court of Appeal was tasked with determining whether the owner was entitled to damages measured as the commercial rental value of the property during the delay period and whether the owner was entitled to damages for wasted expenditure on the property during the delay period.
The Court of Appeal considered whether the owner was entitled to damages measured as the commercial rental value of the property for the delay period. The Court held that the loss of use and enjoyment of land was compensable, and the measure of damages was dictated by the facts of the case. The Court found that the rental value was not the default measure and was not appropriate in this case, as the owner did not intend to reside at or rent the property during the delay period. The Court of Appeal allowed the appeal on this issue.
The Court of Appeal also considered whether the owner was entitled to damages measured as wasted expenditure on the property during the delay period. The Court found that the availability of damages for wasted expenditure was governed by the general principles of contractual damages. The Court held that payments made in respect of the property during the delay period without benefit to the owner were an appropriate measure of damages for loss of use. The Court upheld the notice of contention on this issue.
The Court of Appeal made orders allowing the appeal in part, setting aside the decision of the Tribunal on the issue of damages for loss of use and enjoyment of the property and remitting the matter to the Tribunal to determine the appropriate measure of damages for that loss. The Court did not make any orders on the issue of mitigation and costs, finding that the issue of costs was complex and evaluative and required consideration by the Tribunal.