Lichaa v Boutros

In *Lichaa v Boutros*, the appeal concerned a dispute arising from a building contract. The appellant, Ms Lichaa (the owner), had terminated the contract with the respondent, Mr Boutros (the builder), alleging repudiatory conduct. The primary judge had found in favour of the builder regarding claims for defective work, and the owner appealed this decision to the Court of Appeal of the Supreme Court of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge had failed to provide adequate reasons for rejecting the owner's expert evidence and preferring the builder's expert evidence, thereby breaching the duty of procedural fairness. Additionally, the court considered the relevance of the owner's alleged repudiation to the builder's liability for defects, and whether the owner had accepted the defective work. The court also examined the adequacy of the evidence presented to support the owner's claims for damages, particularly in light of the builder's failure to plead failure to mitigate.

The Court of Appeal allowed the appeal in part, specifically concerning the ground relating to procedural fairness and the adequacy of reasons. The court found that the primary judge had not adequately explained why the owner's expert evidence was rejected or why the builder's expert evidence was preferred. Consequently, the court set aside the orders of the primary judge and remitted the proceedings to the District Court for a new trial limited to specific issues concerning whether certain identified defects constituted breaches of the contract, the necessary remedial work, and the costs associated with that work. The court directed that the builder's expert's costing, updated for the passage of time, should be used for any demolition of the first floor. The builder was ordered to pay the costs of the appeal, with the costs of the proceedings below to abide the outcome of the new trial.