It is apparent, in my opinion, a lack of supervision in the original construction stages has occurred making simple rectifications impossible."
129 The respondent objected to the tender of the letter on the basis of relevance. It did not object to it on the basis that it had not had an opportunity to meet it, or that it had not been served in accordance with the rules. The trial judge rejected the evidence on the basis that it was not relevant. That ruling was not correct. The material was relevant. Whether it was sufficient to establish the damages to which the appellant might be entitled on the cross-claim raises a different issue, namely whether there was sufficient evidence of damage and also gives rise to the difficult question in this case as to whether the cross-claim ought to be remitted.
130 The letter from Philway Constructions as to the costs of rectification was imprecise, in the sense that it was not related to particular items of rectification work. But it was some evidence.
131 There was other evidence of cost: for example, there was a quotation for the retaining wall in the sum of $1,850 plus GST, although such work was quoted on the basis that there was no structural guarantee for it. There was evidence of the cost of cleaning up, which in itself was evidence of some of the individual items for which the appellant had made a claim.
132 Some evidence of other costs could be derived from the tender documents, for example in relation to piering. There was also evidence of the contract price. That might have provided some measure against which damages could have been assessed, given that there is an indication in the evidence that the house is so badly constructed that the rectification work that will need to be undertaken will be substantial.
133 There is another matter which is relevant. The author of the Philway Constructions letter stated that, in his opinion, "a lack of supervision in the original construction stages has occurred making simple rectifications impossible". On the other evidence before the Court, this statement has force. It may be, and there are indications in the evidence to support this, that fundamental aspects of the building structure are so unsatisfactory that this building is either not capable of rectification or, alternatively, rectification work would be so expensive, that an alternate course ought to be taken. None of those issues were the subject of evidence or determination in the court below, although they might have been had the Philway Constructions report been admitted into evidence.
134 The question arises therefore as to what order this Court ought to make, in circumstances where the appellant is clearly entitled to succeed on the appeal in relation to the cross-claim, but where the evidence as to damage was not as satisfactory as it should have been.
135 Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat the only remedy it provides for breach of contract, an award of damages: Chaplin v Hicks (1911) 2 KB 786 at 792 per Vaughan Williams LJ; Fink v Fink (1946) 74 CLR 127 at 143; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 349 per Mason CJ, Dawson, Toohey and Gaudron JJ. Such damages should not be nominal only, notwithstanding that the award may be difficult to assess: State of NSW v Moss (2000) 54 NSWLR 536 at 554 per Heydon JA; [2000] NSWCA 133.
136 The Federal Court of Australia has applied the above principles in determining damages to claims under s 52 of the Trade Practices Act 1974 (Cth); Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167 (Full Court); and for infringement of registered trademarks: Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA 1852; Adidas-Salomon AG v Turner [2003] FCA 421.
137 The principles to which I have referred are sometimes stated loosely in terms that a court must do the best it can to assess damages. However, in Placer (Granny Smith) Pty Limited v Thiess Contractors Pty Limited (2003) 196 ALR 257; [2003] HCA 10 Hayne J at 266 pointed out that at least in some cases, it is necessary or desirable to distinguish between a case where a plaintiff cannot adduce precise evidence of what has been lost and a case where, although apparently able to do so, the plaintiff has not adduced such evidence. References to mere difficulty in estimating damages not relieving a court from the responsibility of estimating them as best it can may find their most apt application in cases of the former rather than the latter.
138 As I have already said, the appellant did not adduce the evidence that would normally be adduced in a building case. Accordingly, even had his Honour found for the appellant on the cross-claim, there would have been some difficulties in the assessment of damages. This Court would be confronted with the same difficulties if it embarked upon its own assessment. This gives rise to a consideration of what order the Court ought to make. In this respect it is necessary to have regard, not only to Pt 51 r 23 of the Supreme Court Rules, but also to s 56 of the Civil Procedure Act 2005 (NSW) which provides that the overriding purpose of the Act and Rules of Court "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 56(1). Subsection (2) then provides:
"The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule."
139 There is some tension in this case in giving full weight to the injunction in s 56 and in making an order that would normally follow in a case such as the present which would involve a retrial. If this Court were to determine damages it would do so in circumstances where there has not been a proper determination as to the extent of the defects of which the appellant complains. To remit the matter for a retrial however may lead to another lengthy and expensive hearing which the Court should strain to avoid, if it is possible to do so without causing injustice.
140 The case involves the construction of a residential home for a price of less than $100,000, pursuant to a contract executed in 1997. The present appeal is brought by way of rehearing, pursuant to s 75A of the Supreme Court Act 1970 (NSW). If it is possible for the Court to make final orders disposing of the proceedings, it should do so. In relation to damages, arguably this Court is in as good a position as the trial judge to determine questions of quantum. If the Court cannot do so, it is because the appellant failed to provide sufficient evidence at trial to allow the quantification of his claim and, even had he succeeded, no damages would have been awarded. In those circumstances, arguably it would be appropriate for this Court to dismiss the appeal, and uphold the final order made by the trial judge dismissing the cross-claim "with the exception of two items totalling $225.00", which were conceded by the builder.
141 That result would be unjust in circumstances where it is apparent that the appellant has suffered a significant loss and there was more evidence available to the trial judge than the damages involved in those two items conceded by the builder. Accordingly, a damages order of $225 would itself be erroneous.
142 Whilst the onus lay on the appellant to prove his damages, there were difficulties with the way the trial was conducted. Clearly, the cost of rectification depended to a large extent on the precise nature of the defects established by the evidence. This was a case which might well have benefited from a separate determination of liability, prior to assessing the costs of rectification. Alternatively, each of the experts who identified defects should have been asked to identify the cost of rectification of the defects which they identified. That was not done, and it was known to the parties and the Court that that approach had not been taken, prior to the commencement of the trial.
143 It may be said that the appellant had himself to blame in neither presenting complete evidence in the sense suggested, or, alternatively, in not seeking a separation of liability and assessment of damages. However, the strength of that criticism depends upon one further factor, that being the qualification to which I have referred above, and an understanding of the appropriate approach, in terms of case management, to a self-represented litigant.
144 The further factor concerns the rejection of the evidence presented by way of the letter from Philway Constructions. As I have already said, objection was taken to the terms of the letter on the basis of "relevance". The following exchange between the trial judge and appellant followed:
"His Honour: Yes. How can this get in, this letter?
Uszok: My solicitor advised me to contact qualified people with licence to provide the rectification costs.