News: Rectification of buildings and the High Court

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 [1]) when she found the tenant jackhammering the foyer floor and placing debris in a skip. At [2], 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 [4], 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.

More detail on the tile renovation bungle can be found here. The High Court itself has a fascinating page giving more detail on the building.

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.]


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About Katy Barnett

Katy Barnett is a Professor at Melbourne Law School. She has published extensively in the areas of private law and remedies, and is a co-author of ‘Remedies in Australian Private Law’ with Dr Sirko Harder. In 2016 she received the Barbara Falk Award for excellence in teaching.

11 thoughts on “News: Rectification of buildings and the High Court

  1. Everyone who has been the ‘victim’ of defects is passionate on the subject, Katy. Some to the point where they are quite boring about it. A fascinating and somewhat obscure decision on what a ‘defect’ actually amounts to is Manufacturers’ Mutual Insurance Ltd v Queensland Government Railways (1968) 118 CLR 314. A one in a million year flood wiped out a railway bridge near Mirani in Queensland (home of Dame Nellie Melba for a time). As the notes say:

    “Piers built to carry new bridge collapsed. [I think it was a designer-builder who was sued by Queensland Rail.]

    Appellant claimed policy covered all losses unless losses arose from faulty design.

    Arbitrator found against appellant that loss did not arise from faulty design.

    Piers fell as design defective and policy exclusion not against loss from negligent designing.

    Appeal allowed.”

  2. I know that you have to publish regularly and I know that there is a shortage of news when the Court is not sitting, but this article really plumbs the depths. Rubbish like this really cheapens an otherwise good and useful website.

    David Jackson

    • Dear Mr Jackson QC, I am assuming the “rubbish” to which you are referring is the incorrect information in the original newspaper article quoted in the post? This has now been rectified to delete the inaccuracy. Note that we are not journalists. In line with usual blogging practices, our posts routinely refer to and link to publicly available information, including information from the court’s own website, without endorsing the correctness of the content. Please note that we are always happy to amend any post, as long as you let us know to what the inaccuracy pertains. Kind regards, Katy

      • I was not commenting about the content of the newspaper article. I was saying that the triviality of the whole article demeaned the website.

        David Jackson

        • Show some manners Mr Jackson.

          You may not have found the article to your particular liking, which is fine, but that doesn’t mean that the article is rubbish or that it cheapens the website. Even if you think it does, there are better ways to express your views. As a powerful and influential member of the profession you should be alive to the harm that you can cause if you do not speak and write with moderation.

        • Sir, I would not have thought it necessary to point out to counsel of your standing that, if one has nothing constructive or productive to submit, it is better to remain silent.

          Notwithstanding that you may believe otherwise, there is nothing constructive or productive in your comment,

          Yes, this post by Ms Barnett is lighter than others, perhaps in the absence of anything more substantial to say as you suggest. So what? It’s a blog – one can take its posts, or leave them. You could – indeed, should – have simply left this one.

          With regard to the rest of us, experience indicates the greater majority of lawyers appreciate occasional levity as much as anybody else. To draw a connection in a light-hearted manner between the Court’s latest pronouncements on rectification and its woes with its own building is hardly a crime. To suggest it ‘demeans’ this blog is patently absurd.

          Thank you for you contributions, Ms Barnett, please carry on.

          • Thank you kindly, Adrian Camarast and David Parsons. As a lecturer, it’s my experience that I can’t please everyone all of the time, and not everyone appreciates my sense of humour, although most times, the people who appreciate it outweigh those who don’t. The same goes for blogging. In any case, I’ve learned through long experience to take these things on the chin. And yes, I’m very much looking forward to a time when a meaty private law case comes down and I can deal with it in an appropriately serious manner. Now, if we could henceforth consider this matter closed, I would very much appreciate it. Kind regards, Katy

  3. I have a theory that Manufacturers’ Mutual is regarded a little doubtfully in Queensland because of the misnomer. There was only a commissioner of railways in Queensland in the day (I am sure) and no goc called Qli Govt Rlwys, I’m sure.

  4. I must say I am appalled by the extremely rude post apparently made by David Jackson AM QC. I say apparently because my first thought was that surely it was not him. (I don’t know what steps are taken to verify a person’s claimed identity.) But if it was indeed Mr Jackson AM QC, I consider that the post demeans his status as one of her Majesty’s Counsel.

    • Anon, as far as I know, it was he who posted the comment, and the details supplied support that conclusion. I would not have published it otherwise. On balance, I thought that if someone of that stature and standing had that view, then it should be published, and I should respond to it.

      I did not publish some of the comments in response to Mr Jackson QC because I was unsure of the provenance of them (one was purportedly from “Sir Owen Dixon”, for example). However, I have published serious comments where I am aware of the provenance.

      The original post was more light-hearted than my usual, but it was certainly not meant to detract from this blog. I’m proud that we usually have enlightening and civil discussion here, and hope that it will continue so in the future.

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