Lichaa v Boutros [2021] NSWCA 322 (16 December 2021) (Macfarlan and Gleeson JJA, Rein J)


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.