The High Court has handed down two important cases on rectification of building works, each of which suggest that the court places a high value on rectification. However, as discussed below, I could not have guessed that the High Court’s passion with regard to building rectification may have stemmed from its own experience. [Post corrected below]
First, the cases in which the importance of rectification was emphasised include the 1954 case, Bellgrove v Eldridge, in which the High Court considered whether a builder should be liable for full rectification costs when, as a result of contractual breaches, the homeowner’s house had serious defects in the foundations. At page 617, the High Court held:
In the present case, the respondent was entitled to have a building erected upon her land in accordance with the contract and the plans and specifications which formed part of it, and her damage is the loss which she has sustained by the failure of the appellant to perform his obligation to her. This loss cannot be measured by comparing the value of the building which has been erected with the value it would have borne if erected in accordance with the contract; her loss can, prima facie, be measured only by ascertaining the amount required to rectify the defects complained of and so give to her the equivalent of a building of her land which is substantially in accordance with the contract.
This was subject to a qualification at page 618 that the work must be necessary and reasonable.
Secondly, in the 2006 case, Tabcorp Holdings Ltd v Bowen Investments Pty Ltd, the High Court considered whether the landlord of an office block should be entitled to rectification costs after the tenant demolished the foyer without seeking the landlord’s permission (as required by the contract). In fact, the landlord had expressly denied permission, but the tenant had gone ahead anyway. The High Court was lyrical in its description of the landlord’s plight, describing the director of the landlord company as “shocked and dismayed” (at ) when she found the tenant jackhammering the foyer floor and placing debris in a skip. At , the High Court noted the special materials which the landlord had used for the foyer: “San Francisco Green granite, Canberra York Grey granite, and sequence-matched crown-cut American cherry.” At , the High Court noted:
The trial judge’s description of the Tenant’s conduct as involving “contumelious disregard” for the Landlord’s rights was not hyperbolic. Nor has it been challenged.
It is no surprise that the tenant was given short shrift and required to pay damages to effect full rectification of the foyer at the termination of the lease.
The Age reports today that the High Court building is being rectified, sitting in Sydney, Brisbane and Melbourne while the noisy building works proceed. However, this is not the first time the court building has required rectification. The part of the article that really piqued my interest was the following passage:
Opened by the Queen in April 1980, the High Court’s late brutalist building on Lake Burley Griffin has required a range of improvements, including major renovations works to rectify structural and safety problems in the western forecourt in 2013.
About 50,000 custom-made tiles had to be imported from Italy, later found to be too long and requiring modification to fit the existing pattern. The forecourt’s trees had to be removed and replaced, with problematic retaining walls and landscaping also requiring rectification.
It was later revealed a court employee had made an unauthorised visit to the Italian factory with her boyfriend.
A spokesman for the court said the works had been successfully delivered on time and within budget, with required parliamentary and planning approval.
It is to be hoped that the present works are completed successfully; in the meantime, those of us in other Eastern States will enjoy the opportunity to see the court when it comes to town.
[Update: we note that the newspaper article linked above has since corrected its article to state:
Correction: An earlier version of this story said previous construction works at the High Court had been referred to the Australian Federal Police. A spokesman said this was incorrect.
We have removed the link to the unamended article, and amended our post to reflect the correction.]