kea90138
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
No.669 of 1986

BETWEEN:

SWIFTBUILT CONSTRUCTIONS PTY LTD

Plaintiff

AND:
PETER THOMAS HURLEY
First Defendant

and
AVIS LUCILLE HURLEY
Second Defendant

CORAM:	KEARNEY J.

REASONS FOR DECISION

(Assessment of damages) (Delivered 4 October 1990)

The background

I now assess the damages payable to the defendants by the plaintiff for its breach of their building contract. These reasons should be read in the context of the reasons for decision of 23 February 1989 and the ruling of 3 October
.1989.	I note in particular for present purposes the

following observations on 23 February 1989 at pp.45-47, viz:-

"The principle is that the defendants are entitled to the reasonable cost of rectifying the defects for which the plaintiff is responsible, so far as that is possible.	The test is one of what is necessary and reasonable, a question of fact.
This measures the extent of the defendants' loss.

I also accept that it is part of the defendants' loss flowing from the plaintiff's breach of contract, that they will suffer inconvenience, loss of enjoyment of their property, and disturbance during the carrying out of the necessary remedial work.	There is evidence relating to the disruption of their lives and business, in that event.		For this they are also entitled to be compensated.
I consider that it is reasonable to calculate the defendant's losses as at the date of judgment, because it was reasonable for the defendants to wait before having the necessary work carried out.

In summary, the matters involving the laundry waste, the fascia, the second laundry trough, the gable overhang and false trusses, the eaves overhang and the type of roofing material, did not involve agreed deletions from the contract work, but involved breaches by the plaintiff of its contractual obligations. - - -
I note that the loss of aesthetics when
Mr O'Neill's remedial approach is adopted is also a compensable head of damage, for the defendants.

I have found it difficult to ascertain from the evidence the costing of the remedial work to be carried out in accordance with the views of
Mr O'Neill.	Accordingly, I will not rule on the amount of damages today, but will adjourn proceedings for one week to enable the parties to refer me to the evidence on that aspect or to reach some agreement on the costs of the items involved.

The plaintiff's claim fails, and there will be judgment for the defendants on that claim.		The defendants' set-off and counter-claim succeeds and there will be judgment for the defendants in respect thereof in a sum to be determined.	From that sum will be set-off the amount due to the

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plaintiff under the contract." (emphasis at this time)

The ruling of 3 October 1989 deals with events following the judgment of 23 February, and sets out in some detail the submissions by the defendants as to the assessment of damages.	It is recorded that the plaintiff submitted that:-

"In the absence of a proper costing of the O'Neill proposals it was impossible for the Court properly to assess the defendants' damages.	The Court should accordingly now allow both the plaintiff and the defendants to adduce evidence as to the costing of the remedial work according to Mr O'Neill.
This would be expert evidence.	To this end, the plaintiff now sought an adjournment, an order that the experts' written statements be served on the other party within 2 weeks, and that the case be relisted for hearing on quantum at some convenient time thereafter." (pp.8 ,9).

In the result the plaintiff's application for an adjournment was granted on 3 October.	Shortly afterwards, the court was informed that the plaintiff did not seek to adduce the evidence referred to; neither did the defendants. Accordingly, I proceed now to the assessment of damages awarded to the defendants, on the materials already in evidence.

Assessment of damages in respect of the remedial work

The breach of contract by the plaintiff includes the items numbered 1, 5-10, 12(a), 13, 15, 16 and 19-42 in Exhibit D14, a copy of which in its final form is annexed to this assessment.	As to these items it is clear that remedial work needs to be carried out.	I accept in general the assessment of the quantity surveyor, Mr Stewart, that the cost of the necessary remedial work for these items is
$27,691.	However, despite a lack of evidence, I deduct
i
$2000 to reflect the lesser cost of remedying item 1 by khe

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drainage work recommended by the engineer, Mr O'Neill; see transcript pp.758-760, Exhibit Pl5 (at p.3 para.2), and judgment of 23 February 1989 at pp.36 and 40.

As to the remaining items in Exhibit D14, I accept
Mr Reeves' submission of 18 September 1989 that item 2 is not a matter for which the plaintiff is liable in damages, and that items 11, 14 and 17 are taken up in items 4, 13 and
10 respectively, while item 18 does not involve a cost. That leaves for consideration in Exhibit D14 items 3 (the footings) and 4 (the cost of painting the steel frame with anti-corrosant paint), in respect of which the 2 engineers, Mr O'Neill and Mr Lawler had differing views.	I stated on
23 February 1989 at p.44 that I considered that
"Mr O'Neill's proposals for remedying the defects in this building are reasonable."

As to item 3 in Exhibit D14, see generally the judgment of 23 February 1989 at pp.37, 40 and 41.	Mr O'Neill's views are set out in Exhibits Pl5 and Pl6 (pp.3-4) and transcript pp.686-693 and 706; the costing was $4800.
Mr Lawler's approach is set out at Exhibit D16, para.3, at a costing of $5000; but the direct and indirect work necessary was later costed at $6675 - see transcript p.706 and items 3 and lb in Exhibit D14.	I assess the award of damages in respect of item 3 at $4800.

As to item 4 in Exhibit D14, Mr O'Neill's remedy is set out at Exhibit Pl6, p.3; see also p.37 of the judgment of
_ .2.3  February 1989.	It sufficiently appears from Exhibit D16
para.4, that the cost of Mr O'Neill's remedy would be $540. Mr Lawler's remedy, which includes the cost of removing and reinstating the wall linings and roof, is costed at $15,540; see Exhibits D14 and D16, para.4.	I assess the award for
item 4 at $540.

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The total of the amounts allowed for the items of remedial work in Exhibit Dl4 is $31,031.	I also allow $100 for obtaining the necessary certificate of compliance.

Other heads of damages

There remains to be considered the other items of damages which flow from the carrying out of the works necessary to remedy the plaintiff's breach of contract. During the period necessary to carry out those works there will be inconvenience to the plaintiffs, a loss of enjoyment of their property, and a disruption of their lives and of the business they conduct on the property.	The allowance in respect of these matters is much less on a remedial approach than on a demolition approach.	The defendants have suffered a measure of inconvenience and loss of enjoyment of their property since July 1986; see transcript p.895.
There is also a loss of aesthetics inherent in the remedial approach, as opposed to Mr Lawler's demolition approach; see p.895.	Doing the best I can I allow the sum of $4000 in respect of the whole of these items of damages.

Conclusion

In the result I assess the damages payable by the plaintiff to the defendants in respect of their counterclairn, on which the defendants succeeded on
23 February 1989, at $35,131.	Against that must be set off the money due to the plaintiff by the defendants under the building contract, which is agreed at $12,375.	The balance, now awarded to the defendants as damages, is $22,756.	In addition, pursuant to s.84(1) of the Supreme Court Act,	the defendants are awarded interest at the rate of 12% per annum on $22,625 from 23 February 1989 until today, totalling
$4324.	Accordingly, judgrnent is given for the defendants in this action in the sum of $27,080.
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The plaintiff must pay the defendants' costs of the action No. 669 of 1986, both as to the plaintiff's claim and the defendants' counterclaim.

The registration of any lien which the plaintiff has on the title to the subject land, Lot 4097 in the Town of Palmerston, pursuant to The Workmen's Liens Act 1893, is ordered to be cancelled.

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SCHEDULE OF DEFECTS OMMISSIONS OR VARIATIONS

SVD

ITEM	SUPPLIED	REQUIRED	BY	AMT

EST OF RMD

STRUCTURAL DEFECTS	- 1 to 12 incl

1	SLAB	80mm ANL	275mm	Plans	$1400(1) $4100(24)
la SLAB	Nil	to be	drawing
SAWCUT JOINS	provided	nil	$150 (8)
lb SLAB
APRON	Nil	n/a	nil	$1675(11)
R 41-42, 58, 61-63, B 92, 94-95, 106-7, 120, 163-7, 187-8, B192-4,
200, 202, Ho 222-3, 230 HU 262-4, 284-7, 292, 296, 354, 377, 404,
431-33, AHU 439, 440, 450-52, 456, L 495-500, L 505-512, 550-51,
AHU 558-9, L 622, 625-629, 644-5, 658.

VERANDAH	Nil

FOOTINGS	180-350mm

STEEL FRAME	nil ANTICOROSANT PAINT

to allow	Plans	$NIA	$NIA
for its construction

450mm	Plans	$1100(2) $5000(3)

as	Plans	$270(4)	$15540(4) described

B 198, 202-3, L 512-4, 520-23, 629-631
A  STEEL	?	to be	Nominal	$90 COLUMN ON		anchored
THE FRONT OF THE BUILDING IS NOT ANCHORED
R 38-39, B 92-93, 169, HO 218, 227-8, HU 287 Photos 7 & 8
CROSS BRACING		as	to be	Supple	$250	$300(6) WRONGLY	described	constructed mentary
CONSTRUCTED	correctly	Plan

MEMBRANE		underneath	to be	Plans	$80	$270(22) slab	turned up
at the edges
L 506

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-2-

AMT	EST ITEM	SUPPLIED	REQUIRED	BY	SVD	OF RMD
PLYWOOD	nil?	as	Plans	$2300(5) $7000(5) LINING TO		described
WALLS
L 525, 547, 632-4, 657

PLYWOOD	nil	as	Plans	$90	$1700(7) LINING TO		described
ROOF

NAILS TO	as described	correct	BLDG	$230(10) $230(10) FIX EXTERIOR		size &	CODE
CLADDING	centre
INCORRECT	so that
SIZE & CENTRE	it does
THEREFORE	not buckle EXTERIOR
CLADDING BUCKLES
R 36-37, B 127-8, 130, 191-2, HO 225, G 245, HU 288-9, 394-6
HU 452-3, 468, L 529-32, Photos 12 O'Neill

STEEL	as described	not to UPRIGHTS		overhang
OVERHANGING
HU 289, 296-7, Photos 13, 20, 22, 23

AS1480	See 4 Above

TRUSSES	since	Structural	Plans	12
supplied	Engineers
with	Certificate Certificate
L 532

12a HOLDING	?	As	Drawings $450	$450(13) DOWN RODS		described
L 528

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-3-

ITEM	SUPPLIED	REQUIRED MAJOR DEFECTS, OMMISSIONS OR VARIATIONS

AMT	EST
BY	SVD	OF RMD
to 18 incl

13	EAVES	300mm	900mm	Plans	$2000	$6250(14)	
		overhang	overhang				

B 83-5, 121, HO 217, G 245, HU 264-5, 375-6, 404, AHU 441-2
L 508, L 532

FASCIA		250x6mm Hardiboard no battens or lining

250x38mm	Plans hardwood
with battens and lining

incl in 13

GABLE ENDS OVERHANG
15a GABLE
BRACING

nil nil

450mm As
described

Plans	$900 Drawing		nil

$2650(16)
$300(9)

R 37-38, B 121-22, 126, 131, 201, HO 212, FR 234-6, 239,
HU 266, 278, 283, 290, 403, AHU 453, L 536, 640-2
Photos 1, 15 & 16.

RIDGE
CAPPING

with insuff­ icient girth and moulding

with sufficient girth and moulding

BLDG CODE

$150

$300(19)

R 39-41, B 83, 126-7, HO 212, HO 218-9, HU 315, L 537-8
539-40, 635-40

PLASTIC
JOINING STRIPS NOT FIXED

not fixed

to be fixed

BLDG CODE

incl in 10

R 41 76-77, HO 219-20, 226-7, 230, HU 288, 399-400, AHU 468,
L 531, Photo 11

TERMITE	Certificate PROTECTION	since
supplied
L 538, 623-4

Certificate Plans Required

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-4-

MINOR DEFECTS, OMMISSIONS OR VARIATIONS - 19 to 42 incl	

	GENERALLY	SEE HU	430,	L	341		
19	LAUNDRY	nil			as	Plans	$125(15) $500(15)	
FLOOR DRY	described WASTE

20 ROOF	with holes	without	BLDG	nil	$50(18) SHEETING		holes	CODE

21	ROOF	Zincalune	Colour	Plans	$550(19)	$3000	
	FINISH		bond				

22	PAINTING	After repairs	BLDG CODE	nil	$1200(21)	
*23 TOILET	buckled	not	Drawing	nil	$550(20)	
DOOR	and exterior	buckled and
interior	and G.T.P.	

R 44-45, B 125, HO 211,220, AHU 436, 443, 474

23a BATHROOM	External	Restraints	Code AND LAUNDRY
WALL
24 SLIDING	as	not to jump G.T.P.
DOORS	described	tracks

I

'	JUMPTRACKS

25 EXTERIOR	as described	properly	G.T.P.	
TIMBER		primed	
FRAMES		before	
CRACKED		fixing	
R 43-44, H

26 ONLY 1
TROUGH IN LAUNDRY	O 220, 228-9, HU 287, 396, Photo 1

as described	2		by agree ment	

'

0

nil	$325(23)

$40

$65

$350

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-5-

ITEM	SUPPLIED	REQUIRED	BY

AMT	EST SVD	OF RMD

27 FLYWIRE	as described	to slide	G.T.P.	$30 DOORS
WON'T SLIDE
B 128-9, HO 213-4, HU 400

28	CRACK IN	as	described	not to	G.T.P.	
	ASBESTOS			be		

$6

HU 287, L 541, Photo 9
*29 SLIDING	as	not to	G.T.P.	$10 DOOR	described	overhang
TRACKS OVERHANG
B 129, HO 214, HU 289, 315, 317, AHU 453, L 541
30 CLOTHES	2nd hand	to be	NTHC	$150 HOIST	and very	new and	stds
old casing	working cracked
R 46-47, B 119-120, HU 269-70, 408-9, AHU 444, 448

*31 TOWEL	nil	yes	NTHC	$30 RAILS			stds

*32 SOAP	nil	yes	NTHC	$20 HOLDERS			stds
R 48, HU 257, HU 270-1, AHU 444

DOORS	sticking	not to	G.T.P.	$15 in wet	stick
season

HO 211

SINK IN	nil	yes	Plans	$300 SECOND
TOILET

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-6-

ITEM	SUPPLIED	REQUIRED	BY	SVD	OF RMD	
35 HOT WATER	as	correct	NTHC		$500	

AMT	EST

SYSTEM TOO	described	size	stds SMALL

*36 SINGLE	as	double	Plans	$450	
KITCHEN	described	sink			

SINK HU 271
BROKEN	as	not	G.T.P.	$15 LIGHT COVER described	broken
OUTSIDE

HANDLE ON	as	to be	G.T.P.	$10 DINING ROOM described	straight
DOOR CROOKED

39 DUAL FLUSH	

as	

to	

G.T.P.	$30	
TOILET NOT OPERATING	described	operate		

40 PLASTER	with BEHIND
LAUNDRY DOOR AND IN BATHROOM	gap	
without gap	G.T.P.	$5	

BATHROOM	as	level	G.T.P.	$50 SINK TILING described
NOT LEVEL
B 127, HO 212

KITCHEN	as	without	G.T.P.	$300 WINDOW HAS described	column
COLUMN IN THE CENTRE
HU 291-2, Photo 17, AHU 442

•
'  .	-7-

G.T.P. - Good Trade Practice/Workmanship

NTHC
stds

- Northern Territory Housing Commission Standards

*	- since remedied by owners