Lida Build Pty Ltd v Miller & Anor

Lida Build Pty Ltd brought an appeal against the decision of the Civil and Administrative Tribunal (Tribunal), which was concerned with a dispute arising from building works performed on a property. The Tribunal had found that Lida Build had failed to comply with the building contract in several respects, leading to a finding against Lida Build for the cost of rectification. The Tribunal also found that Lida Build was not entitled to the costs of the appeal. Susan Miller and Peter Miller, the respondents, appealed against the Tribunal's decision. The central legal issues involved whether the failure to comply with the building plans resulted in damages calculated as the cost to comply with the plans or as a diminution in value, and whether it was reasonable to incur the cost to comply with the plans. Furthermore, the court had to determine whether diminution in value was the proper method of calculating loss.

The court considered the nature of the contractual obligations and the extent to which the building work deviated from the plans. It noted that while the building work was not defective, it did not comply with the contract, primarily due to a failure to follow the specified plans. The court examined whether the cost to comply with the plans was a reasonable measure of damages and whether the diminution in value approach was more appropriate. The court concluded that the Tribunal had not adequately considered the alternative measure of damages, specifically whether diminution in value was a more appropriate method. The court found that the Tribunal had not given sufficient consideration to the alternative measure of damages and the reasonableness of incurring the cost to comply with the plans.

The appeal by Lida Build was allowed in part, and the Tribunal's decision was set aside to the extent that it did not consider the alternative measure of damages. The court ordered that the Tribunal reconsider the matter, focusing on whether damages should be assessed based on the cost to rectify the roof pitch to 25° or by way of diminution in value. The court directed the Tribunal to also consider the amount to be allowed for rectification of the fascia. The appeals by Susan Miller and Peter Miller were dismissed. The Tribunal was instructed to determine the appropriate measure of damages and the amount to be awarded, considering the specific circumstances of the case.