Lichaa v Boutros [2021] NSWCA 322

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lichaa v Boutros [2021] NSWCA 322 Hearing dates: 27 October 2021 Date of orders: 16 December 2021 Decision date: 16 December 2021 Before: Macfarlan JA at [1] Gleeson JA at [2] Rein J at [3] Decision: (1) Appeal allowed in part as to ground 5. (2) Set aside orders 1 and 4 made by Olsson SC DCJ on 16 March 2021. (3) Remit the proceedings to the District Court for a new trial limited to the following issues: (a) Are any of items 1-6 and 8-18 identified as defective by Mr Verinder in the Amended Scott Schedule breaches of the Contract (including the implied terms)? (b) If the answer to (a) is yes, what is the necessary remedial work reasonably required to bring Ms Lichaa's house into conformity with what was promised by the Contract? (c) What are the costs of the work required and identified in (b)? Direct that insofar as the work includes demolition of the first floor in its entirety, Mr Verinder's costing should be used, but updated to reflect any increase or diminution in the costs identified by reason of the passage of time. (4) Respondent to pay the costs of the appeal. (5) Respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified. (6) Costs of the proceedings below to abide the outcome of the new trial. Catchwords: APPEALS — Procedural fairness — Failure to give reasons — Adequacy of reasons – failure to engage with the case presented by each party – duty to give reasons for rejecting evidence of expert or preferring evidence of one expert over another – whether the primary judge failed to adequately explain why the Appellant's expert evidence was rejected or why the Respondent's expert evidence was preferred. BUILDING AND CONSTRUCTION — Contract — Termination — Repudiation – the Respondent, the builder, was shut out from site after repudiatory conduct by the Appellant, the owner – whether the owner repudiated the contract. BUILDING AND CONSTRUCTION — Contract — Damages — Defects – relevance of repudiation to claims for damages for defects – whether repudiation by the owner not relevant – Appellant had accrued rights in respect of work carried out prior to determination of the contract. BUILDING AND CONSTRUCTION — Contract — Damages — Defects – engagement of second builder to complete work of the Respondent including repair of defects of Respondent not exculpatory of Respondent and not relevant to the loss claimed in respect of defects solely the result of work performed by the Respondent – whether owner had accepted the defective work. BUILDING AND CONSTRUCTION — Contract — Damages – proof of loss – adequacy of evidence supporting loss – where failure to mitigate damages not pleaded – whether evidence from the Appellant's expert that would enable the Appellant's loss to be calculated albeit on the basis of demolition of the building. Legislation Cited: Home Building Act 1989 (NSW), ss 18A, 18B, 18AB Suitors' Fund Act 1951 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 20.14, 51.53 Cases Cited: Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36 ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Harbutt's Plasticine Ltd v Wayne Tank & Pump Co Ltd [1970] 1 QB 447 Jandon Constructions (A Firm) v Lyons [1999] WASCA 310 J-Corp Pty Ltd v Gilmour (2006) 22 BCL 8; [2005] WASCA 136 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited (2007) 233 CLR 115; [2007] HCA 61 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457; [1933] HCA 25 M & EM Hull Pty Ltd v Thompson [2001] NSWCA 359 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Robinson v Harman (1848) 1 Exch 850 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 Wenham v Ella (1972) 127 CLR 454 Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 Texts Cited: DB Casson and IH Dennis, Odgers' Principles of Pleadings and Practice: In Civil Actions in the High Court of Justice (1981, 22nd ed, Stevens & Sons) Category: Principal judgment Parties: Odette Lichaa (Appellant) Maroun Boutros (Respondent) Representation: Counsel: A G Rogers (Appellant) R V Zikmann (Respondent)