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Category: Consequential orders

Parties: Allied Pinnacle Pty Ltd (Plaintiff)
G R Mailman & Associates Pty Ltd (Defendant)

Representation: Counsel:
T Castle SC w/ S Erian (Plaintiff)
S Puttick (Defendant)
Solicitors:
Thomsons (Plaintiff)
Ashurst (Defendant)

File Number(s): 2025/00316240

JUDGMENT

1. I have delivered two prior judgements in this matter: Allied Pinnacle Pty Ltd v G R Mailman & Associates Pty Ltd [2026] NSWSC 87; and Allied Pinnacle Pty Ltd v G R Mailman & Associates Pty Ltd (No 2) [2026] NSWSC 504. These reasons assume familiarity with those earlier judgments. I adopt the defined terms used in the first of those judgements.

2. In response to orders I made on 5 March 2026 and 13 April 2026, Mr Stephen Bolt, an experienced quantity surveyor, has produced two reports; dated 31 March 2026 and 30 April 2026 respectively. In the first of those reports, Mr Bolt estimated the costs associated with performing the outstanding redecoration works and of painting all exterior surfaces of the premises. The estimate Mr Bolt provided was confirmed in his second report.

3. In his second report, Mr Bolt also provided an estimate of the total number of days it ought reasonably have taken to perform the outstanding redecoration works and to paint the exterior surfaces of the premises.

4. I must now consider whether to adopt, vary, or reject Mr Bolt’s reports and, having done so, determine what final orders should be made in the proceedings.

The adoption of Mr Bolt’s reports

5. The principles that are to be applied when considering whether to either adopt, vary or reject a referee’s report pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 20.24 are well settled. They were summarised by Darke J in The Owners - Strata Plan No 97315 v Icon Co (NSW) Pty Ltd [2023] NSWSC 363 at [17]-[18] and I adopt that useful summary.

6. In their respective written submissions, the parties each said that I should adopt Mr Bolt’s first report. I am satisfied that it is appropriate to do so.

7. GR Mailman said that I should also adopt Mr Bolt’s second report. Allied agreed but suggested that two variations should be made to that report.

8. In his second report, Mr Bolt concluded that the painting of the external surfaces of the premises can be undertaken concurrently with the outstanding redecoration works and estimated that it ought reasonably have taken “4.2 weeks (or 4 weeks and one day)” to complete those works. In arriving at this estimate, Mr Bolt assumed what he described as “the most efficient labour strength of 2 tradespersons working full-time” but acknowledged that the work could have been done using 3 workers.

9. In its written submissions, Allied said that I should vary Mr Bolt’s second report by:

10. reducing his estimate of the time reasonably required to undertake the relevant works to 3.2 weeks on the basis that this is the period of time between when S&S Services were engaged to carry out those works and when Wilrich took possession of the premises under the new lease; and

11. further reducing the time reasonably required to undertake the works to 2.2 weeks on the basis that they could be carried out using 3 workers as opposed to the 2 workers Mr Bolt had assumed to be most efficient.

12. The second of these proposed variations was ultimately abandoned by Allied. I do not propose to make the first.

13. In his second report, Mr Bolt provided his estimate of the time it ought reasonably have taken to complete all of the relevant works. That is what the orders made on 30 April 2026 required him to do. The reasons set out in that report reveal no error which justifies the re-agitation of that issue.

14. Whatever relevance it may have to the quantification of GR Mailman’s claim for lost rent, the fact that less than 4.2 weeks passed between S&S Services being engaged and Wilrich taking possession of the premises under the new lease provides no basis for varying the estimate given by Mr Bolt in his second report. This is particularly so given that it was common ground between the parties that S&S Services carried out only a portion of the relevant works during this period.

15. I adopt Mr Bolt’s second report without variation.

The cost of completing the outstanding redecoration works and external painting

14. Mr Bolt has estimated that the cost of completing the outstanding redecoration works and external painting at $150,512.21 (exclusive of GST). Both parties accepted that – as a consequence of the conclusions reached in my first judgment in this matter – GR Mailman is entitled to recover this sum from Allied and that this should be reflected in the final orders made in the proceedings. The parties calculated pre-judgment interest on the outstanding redecoration works and external painting to be $9,952.80.

GR Mailman’s lost rent claim

15. GR Mailman claimed an entitlement to rent and a contribution towards its outgoings which it says it lost as a result of Allied’s failure to have completed the outstanding redecoration works and external painting prior to vacating the premises at the end of the lease.

16. Allied did not dispute that – as a consequence of the conclusions reached in my first judgement – GR Mailman is entitled to recover rent and outgoings lost due to its breach of the lease. It did dispute the quantum of the lost rent and outgoings claim made by GR Mailman. At the hearing, the scope of this dispute was appropriately narrowed by the parties.

17. The parties agreed – for the purposes of this dispute – that the rent and outgoings payable under the new lease is $25,547.36 per week (exclusive of GST). What remained in issue was the length of time GR Mailman had been deprived of these moneys due to Allied’s failure to complete the outstanding redecoration works or external painting prior to vacating the premises.

18. GR Mailman submitted that Allied’s breach of the lease had caused it to lose 6.2 weeks rent and outgoings. Allied said that only 3.2 weeks rent and outgoings had been lost. Mr Bolt’s 4.2 week estimate of the time reasonably required to undertake the relevant works sits between the time periods proffered by the parties.

19. In a further attempt to narrow the issues in dispute, the parties agreed that I need only determine which of the three periods identified in the above paragraph reflected the period during which Allied’s breach of the lease had caused GR Mailman to lose rent and outgoings, and then multiply that figure by the agreed weekly rental and outgoings amount of $25,547.36. While some might see this as basic arithmetic, the agreement reached on this issue disposed of a dispute which had arisen between the parties as to the precise number of days represented by Mr Bolt’s 4.2 week estimate.

20. GR Mailman’s formulation of its claim was simple. In an affidavit affirmed on 11 May 2026 (but ultimately tendered in part by Allied), Jordan Mailman said that:

21. Wilrich was ready and able to take possession of the premises as soon as Allied vacated the premises at the end of the lease on 14 August 2025.

22. It could not do so until GR Mailman had completed the outstanding redecoration works and external painting.

23. On 8 September 2025, S&S Services was retained to carry out that work, excluding the painting of the southern elevation of the premises as that aspect of the work required scaffolding.

24. Between 8 September 2025 and 16 October 2025 S&S Services carried out these works at the premises.

25. On 1 October 2025, Wilrich took possession of the premises pursuant to the new lease.

26. GR Mailman said that, in these circumstances, Allied’s breach of the lease prevented it from recovering rent and outgoings between 15 August 2025 and 1 October 2025; that is, for 6.2 weeks. It further justified this claim by referring to the 4.2 week estimate given by Mr Bolt and asserting that GR Mailman would not have been able to attend the premises, evaluate the extent of the works required by reason of Allied’s breach of the lease, organise trades, and have those trades commence work on the day that Allied vacated the premises. It was said that some lead in time was required, and that the two weeks by which its claim exceeds Mr Bolt’s 4.2 week estimate should be treated as a good approximation of this lead in time.

27. Allied accepted that its failure to have completed the outstanding redecoration works and exterior painting deprived GR Mailman of rent and outgoings between 8 September 2025 and 1 October 2025. That is, in the 3.2 weeks between S&S Services commencing those works and the date on which Wilrich took possession of the premises. However, it denied any liability referable to the period between 15 August 2025 and 8 September 2025.

28. Allied submitted that GR Mailman bore the onus of proving its loss. It said that GR Mailman’s failure to have adduced evidence explaining why S&S Services did not commence the relevant works immediately after Allied had vacated the premises meant that it had failed to discharge this onus insofar as the period prior to 8 September 2025 was concerned.

29. Allied pointed to the fact – alluded to in the findings made at [57]-[59] of my first judgement – that GR Mailman had been engaging with S&S Services in relation to those works since at least 4 July 2025. It said I should draw inferences favourable to Allied given no attempt had been made by GR Mailman to explain the steps – if any – it had taken between 15 August 2025 and 8 September 2025 to have the relevant works commenced; citing Commercial Union v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E in support of this submission.

30. Finally, Allied submitted that – given the S&S Services work was only being carried out for 3.2 of the weeks that the premises were not occupied by Wilrich – GR Mailman would be “overcompensated” if it were to recover anything more than 3.2 weeks of rent and outgoings. It pointed to the following observations of Gageler CJ in Cessnock City Council v 123 259 932 Pty Ltd (2024) 281 CLR 39; [2024] HCA 17 at [6]:

“The ‘ruling principle’ with respect to the recovery of compensatory damages for breach of contract at common law is that stated in Robinson v Harman: ‘where a [plaintiff] sustains a loss by reason of a breach of contract, [the plaintiff] is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed’. The principle is universally recognised to prevent a plaintiff from being placed by an award of compensatory damages in a better position than that which the plaintiff would have been in had the contract been performed.” (Footnotes omitted).

26. Allied’s position was ultimately summarised by its senior counsel as follows:

“So, your Honour resolves this, we think, as a matter of onus. Your Honour has the facts. Your Honour has no explanation from our learned friends as to why your Honour should allow any part of that period as having been causally connected with our breach.”

27. It may be accepted that GR Mailman bore the onus of proving that it had suffered a loss of rent and outgoings caused by Allied’s breach of the lease: Cessnock at [61] and [127].

28. As to what GR Mailman was required to establish in so far as the causation of its loss was concerned, I note that in Alexander v Cambridge Credit Corp Ltd (1987) 9 NSWLR 310 at 357, McHugh JA stated:

“Accordingly, to establish a causal connection between a breach of contract and the damage which the plaintiff has suffered, he needs only to show that the breach was a cause of the loss. This is to be decided by the application of commonsense principles. In general, the application of the “but for” test will be sufficient to prove the necessary causal connection. But that test is only a guide. The ultimate question is whether, as a matter of commonsense, the relevant act or omission was a cause.”

29. The parties drew to my attention observations to similar effect made by his Honour in Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 at 175.

30. More recently, in Mulcahy & Co Accounting Services Pty Ltd v Porter [2025] VSCA 261 the Victorian Court of Appeal observed (at [108]-[109]) that:

“The traditional approach is that the cause of a particular occurrence is a question of fact to be resolved by applying ‘common sense’. However, the reference to some ‘common sense’ notion of causation has been the subject of criticism and it has been doubted whether it may provide a useful, or universal, legal norm.

Subject to certain qualifications, the common law ‘but for’ test continues to have an important role to play, at least as a ‘negative criterion’ of causation. In other words, it may be said to be necessary, but not always sufficient, for a plaintiff to prove that the plaintiff’s loss would not have been suffered ‘but for’ the defendant’s breach of duty.” (Footnotes omitted).

31. That Court again considered the issue in Selak v National Tiles Co Pty Ltd [2026] VSCA 118, noting at [185]:

“As to the application of the ‘but for’ test, the inquiry considers whether the defendant’s wrongful act made a difference to what occurred. Thus, the question posed as the counterfactual is: would the loss have lawfully occurred without the defendant’s wrongful act? In other words, would the plaintiff have suffered the same loss but without a violation of their rights?” (Footnotes omitted).

32. The portions of Jordan Mailman’s 11 May 2026 affidavit tendered by Allied conclusively establish that Wilrich was ready, willing and able to occupy the premises as soon as possible after it had been vacated by Allied, and that it was unable to do so until the outstanding redecoration works and external painting had been completed. Such of those works as were undertaken by S&S Services on behalf of GR Mailman were completed by 16 October 2025. Ultimately, Wilrich was able to take possession of the premises before those works had been completed; it did so on 1 October 2025.

33. I infer from the above that Wilrich took possession of the premises as soon as it was able to do so. Had Allied completed those works before it vacated the premises – as was required by the lease – Wilrich could and would have taken possession as early as 15 August 2025.

34. On this basis, I am satisfied that GR Mailman’s inability to recover rent and outgoings from Wilrich between 15 August 2025 and 1 October 2025 would not have been suffered “but for” Allied’s breach of the lease. In my view, this is all GR Mailman was required to establish to discharge its onus in the present case.

35. Allied’s complaint about the fact that S&S Services was not retained to carry out the relevant works before 8 September 2025 is really a complaint that GR Mailman failed to mitigate its loss by retaining S&S Services sooner than it did. The onus of proving that any portion of GR Mailman’s loss was suffered due to its own unreasonable or improvident actions – i.e. by failing to retain S&S Services sooner than it did – rested squarely with Allied: Cessnock at [121]. It has not discharged its onus.

36. The present case is not marked by a delay of the magnitude of that considered by Peden J in Morabito v Kingston Industries Pty Ltd [2023] NSWSC 1020 at [153]-[154]; on which Allied placed reliance.

37. I accept that following Allied vacating the premises, and despite its earlier engagement with S&S Services, GR Mailman would likely have required some time to arrange for the commencement of the relevant works by that organisation. Allied adduced no evidence which establishes that the time taken was objectively unreasonable nor that S&S Services – or any other organisation – was actually available or could have commenced the relevant works prior to 8 September 2025.

38. Once retained, the time taken by S&S Services to complete the portion of those works it carried out aligns broadly with the estimate provided by Mr Bolt of the time reasonably required for those works. As I have already noted GR Mailman ultimately made arrangements for Wilrich to take possession of the premises before those works had actually been completed.

39. I am not satisfied that GR Mailman failed, in any material respect, to mitigate this aspect of its loss.

40. Contrary to Allied’s submission, if GR Mailman succeeds in its claim for damages referable to the rent and outgoings foregone throughout this period, it will not be placed in a better position than it would have been in had Allied performed its obligations under the lease; in the sense discussed by Gageler CJ in Cessnock at [6]. Had Allied performed those obligations, GR Mailman would have received rent and outgoings from Wilrich between 15 August 2025 and 1 October 2025. It received nothing during this period.

41. For the above reasons, I am satisfied that Allied’s breach of the lease caused GR Mailman to lose rent and outgoings for the 6.2 weeks between 15 August 2025 and 1 October 2025. Consistent with the agreement reached between the parties, this loss is to be quantified as 6.2 x $25,547.36. The parties have agreed that, once pre-judgment interest is added to this figure, $167,403.62 is payable to GR Mailman.

42. As stated at [14], the parties are also agreed that GR Mailman is entitled to recover the cost of completing the outstanding redecoration works and external painting. The total loss on the outstanding redecoration works and external painting is to be quantified as $150,512.21 + $9,952.80, being $160,465.31.

43. The total value of the judgment for GR Mailman against Allied is therefore $167,403.62 + $160,465.31, being $327,868.93.

44. I propose to adopt Mr Bolt’s reports and enter judgment for GR Mailman on its cross-claim in the sum identified in the above paragraph. I will otherwise hear the parties in relation to any further orders required to dispose of the proceedings, including the appropriate order as to costs.

ORDERS

45. I make the following orders:

46. Pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 20.24(1)(a), the reports of Stephen Bolt dated 31 March 2026 and 30 April 2026 respectively are adopted.

47. Enter judgment for GR Mailman against Allied in the sum of $327,868.93.

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