CJD Equipment Pty Limited v A&C Constructions Pty Limited & Ors [2011] NSWCA 188

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: CJD Equipment Pty Limited v A&C Constructions Pty Limited & Ors [2011] NSWCA 188 Hearing dates: 11 April 2011 Decision date: 14 July 2011 Before: Giles JA at 1, Young JA at 9, Handley AJA at 10 Decision: (1) Appeal dismissed; (2) Cross-appeal allowed; (3) Order (1) below set aside; (4) In lieu thereof substitute judgment for the plaintiff against the first defendant for $67,147 with effect from 14 May 2010; (5) Order (2) below varied by substituting an order that the first defendant pay 5% of the plaintiff's costs, as defined, up to 28 August 2009; (6) The appellant to pay the first respondent's costs of the appeal and cross-appeal; (7) The appellant to pay the costs of the second and third respondents of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - challenge to findings of trial judge - no question of principle DAMAGES - challenge to assessment - no question of principle DAMAGES - mitigation - no recovery for avoidable loss - cost of mitigation to avoid further loss - cost not incurred - whether plaintiff entitled to recover cost as accrued loss Cases Cited: Bagnall v National Tobacco Corporation of Australia Ltd (1934) 34 SR (NSW) 421 Copley v Lawn [2010] 1 All ER (Comm) 890 CA Fox v Percy [2003] HCA 22, 214 CLR 118 Munce v Vinidex Tube Makers Pty Ltd [1974] 2 NSWLR 235 Category: Principal judgment Parties: Appellant: CJD Equipment Pty Limited First Respondent: A&C Constructions Pty Limited Second Respondent: Allan Keith Jeffree Third Respondent: Peter Marcus Consulting Engineers Pty Ltd Representation: Counsel Appellant: G A Sirtes SC with D C Price First & Second Respondents: I Roberts SC with D Tanevski Third Respondent: D J Fagan SC with M B Holmes Solicitors Appellant: The Builders' Lawyer Pty Ltd First & Second Respondents: Walsh & Blair Lawyers Third Respondent: Colin Biggers & Paisley File Number(s): 2008/290633 Decision under appeal Before: McDougall J File Number(s): 2008/290633