Willshee v Westcourt Ltd

[2009] WASCA 87

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Breach of contract
3. › Building contract
4. › Implied term as to quality of materials
5. › Limestone cladding of inferior quality
6. › Whether breach of implied term to supply high quality limestone
1. Damages
2. › Contract
3. › Building contract
4. › Measure of damages for defective work
5. › Cost of rectification versus diminution in value
6. › Ruling principle from Robinson v Harmon
7. › Unreasonableness qualification from Bellgrove v Eldridge
8. › Whether unreasonable to award cost of demolishing and replacing external cladding
9. › Whether breach merely technical
10. › Whether plaintiff seeking uncovenanted profit
11. › Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8
1. Appeal
2. › Standard of appellate review
3. › Findings of fact by trial judge
4. › Whether findings open on the evidence
5. › Cross-appeal challenging factual finding as to provenance of tested limestone blocks

Quick Take

Where a builder breaches an implied term to supply high quality materials, the ordinary measure of damages is the cost of rectification to achieve conformity with the contract, even where the building is structurally sound and the defects are primarily aesthetic. The unreasonableness qualification from Bellgrove v Eldridge, as explained in Tabcorp, applies only in fairly exceptional circumstances where the innocent party is using a technical breach to secure an uncovenanted profit. The defendant bears the onus of proving facts relevant to the unreasonableness qualification, and failure to cross-examine the plaintiff on intention to use damages for rectification may preclude reliance on that qualification.