CJD Equipment Pty Limited v A&C Constructions Pty Limited & Ors

[2011] NSWCA 188

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Challenge to findings of trial judge
3. › Credit-based findings
4. › Whether findings based on contemporary materials, objectively established facts and apparent logic of events could be disturbed
1. Damages
2. › Mitigation
3. › No recovery for avoidable loss
4. › Cost of mitigation to avoid further loss
5. › Cost not incurred
6. › Whether plaintiff entitled to recover hypothetical cost of mitigatory steps not taken
1. Damages
2. › Assessment
3. › Building defects
4. › BCA non-compliance
5. › Items omitted on proprietor's instructions
6. › Whether builder liable for cost of rectification

Quick Take

Where a plaintiff makes an 'all or nothing' claim for a head of damage that was entirely avoidable through reasonable mitigation, and fails to take the mitigatory steps, the plaintiff recovers nothing for that head of damage — the plaintiff cannot recover the hypothetical cost of mitigatory steps it never undertook. The question of whether a plaintiff who fails to mitigate can recover the cost of the mitigatory steps as an accrued loss remains contested, with the majority and dissent taking opposing views.