Unique Building Pty Ltd v Brown

The appeal in Unique Building Pty Ltd v Brown concerns a dispute between the appellant, a building company, and the respondents, a group of individuals who contracted the company to build townhouses. The central issue was whether the respondents had the right to terminate the construction agreement when they were allegedly in breach by not paying a progress payment due under the agreement. The second major issue was the proper basis for assessing damages, with the appellant arguing that the Judge erred in awarding damages for demolition and rebuilding instead of repair and rectification.

The appeal hinged on two critical questions. The first was whether the respondents had the right to terminate the Agreement when they themselves were in breach, as they had not paid a progress payment due under the Agreement at the time they issued notice to terminate. The second question was about the correct method for assessing damages, with the appellant challenging the Judge’s decision to award damages based on the cost of demolition and rebuilding rather than repair and rectification. The appeal did not challenge the factual findings of the Judge nor did it allege any errors of law. Instead, it questioned the inferences drawn from the facts, the application of the law to those facts, and the conclusions reached by the Judge.

The court found that the respondents had the right to terminate the Agreement even though they were in breach of contractual terms by not paying a progress payment. The court reasoned that the respondents had made efforts to resolve the issue of the referee's nomination, which showed their intention to adhere to the agreement's terms. The court also upheld the Judge’s assessment of damages, stating that the significant defects and failures to conform with the Agreement necessitated demolition and rebuilding rather than repair and rectification. The court concluded that the Judge's reasoning and conclusions were correct and dismissed the appeal.

In light of the findings, the court ordered that the appeal grounds 1 and 2 be rejected and dismissed, and grounds 3, 4, and 5 of the appeal be dismissed. This decision upheld the original ruling and the method of assessing damages.