Kapila v Monument Building Group Pty Ltd (No 2)

1. [1]

   On 5 November 2025 I delivered my reasons for decision in this matter: Kapila v Monument Building Group Pty Ltd [2025] NSWSC 1306 (J). These reasons deal with the orders to be made to give effect to those reasons and assume familiarity with the J. For convenience, I adopt the same definitions as in the J.

2. [2]

   As set out at J[288], the conclusions reached were that (a) the plaintiff has succeeded in her claim for breach of contract against MBG in relation to items SS#6.1, 6.2, 6.3, 6.5 and 6.7 of the Scott Schedule and is entitled to damages in the amount claimed; (b) the plaintiff has succeeded in her claim against Mr Brujic for breach of the duty of care in s 37 of the DBPA in respect of those items and is entitled to damages in the amount claimed for those items; (c) Mr Brujic and MBG do not have an apportionable claim under Part 4 of the CLA and (d) Mr Brujic has not discharged his onus of demonstrating any contributory negligence by the plaintiff. At J[290] the parties were directed to bring in short minutes of order to give effect to the reasons in the J.

3. [3]

   The parties were due to bring in orders by 19 November 2025. On 17 November 2025 the defendants requested further time on the basis that their counsel and newly briefed senior counsel were unavailable due to court commitments, which request was granted. Under the revised timetable, the defendants’ submissions were to be provided by 8 December 2025 and the plaintiff’s reply by 11 December 2025. The parties have provided submissions with competing short minutes.

4. [4]

   The plaintiff’s proposed orders are:

   1. (1)

      The Defendants are to pay:

   2. (2)

      On or before 7 January 2026, the Plaintiff file and serve her submissions and evidence as to costs.

   3. (3)

      On or before 4 February 2026, the Defendants file and serve its submissions and evidence as to costs.

   4. (4)

      On or before 11 February 2026, the Plaintiff file and serve any submissions in reply as to costs.

   5. (5)

      The question of costs to be dealt with on the papers.

5. [5]

   The defendants’ proposed orders are:

   1. (1)

      The defendants to file and serve a notice of motion for leave to re-open the judgment together with any supporting affidavit by 11 December 2025.

   2. (2)

      The plantiff to serve any further evidence on quantum by [insert].

   3. (3)

      The defendants to serve any evidence in reply by [insert].

   4. (4)

      The defendants to file and serve submissions by [insert].

   5. (5)

      The plaintiff to file and serve submissions by [insert].

   6. (6)

      The application for leave to reopen be listed for hearing on by [insert] date with an estimate of 1 day.

6. [6]

   As indicated by the defendant’s proposed orders, the defendants’ written submissions dated 5 December 2025 (DS) raise a number of matters which go beyond what was contemplated by J[290] and the orders made when judgment was delivered. The defendants filed a notice of motion on 12 December 2025 (the Motion) seeking leave to re-open limited to (a) the question of damages arising out of the discovery of the matters recorded in the affidavit of Mrs Georgina Brujic sworn 5 December 2025 and (b) the proper interpretation of section 37 of the DBPA pursuant to section 36.15 of the Uniform Civil Procedure Rules 2005 (UCPR) and the Court’s inherent jurisdiction.

7. [7]

   I heard oral argument on the Motion and the parties’ competing orders on 12 December 2025 and 15 December 2025.

8. [8]

   As noted above, the defendants have now retained Mr D Weinberger of senior counsel who did not appear at the hearing. In the DS he raises essentially four matters in support of defendants’ proposed orders:

   1. (1)

      Leave to reopen on damages: the defendants seek to reopen on the question of damages arising out of the plaintiff having obtained a development consent to amalgamate the Property with the adjoining terrace (DS [1]);

   2. (2)

      Leave to reopen on liability: the defendants seek leave to reopen to argue that Mr Brujic is not caught by s 37 of the DBPA (DS [24]-[30]);

   3. (3)

      A ‘lacuna’ in the evidence on damages: the defendants say there are issues with the calculation of damages as a result of the plaintiff’s partial success on liability which mean that the court cannot safely draw a conclusion as to the cost of rectification based on Mr Whyte’s evidence (DS [3]-[20]);

   4. (4)

      Calculation of pre-judgment interest: given the way Mr Whyte calculated the cost of rectification, there is no warrant for the plaintiff to claim pre-judgment interest from 30 November 2016 as that would involve over compensation (DS [21]-[23]).

Leave to reopen on damages?

1. [9]

   As to the first matter, the basis for the application to reopen on the question of damages is set out in the DS at [1] as follows:

2. [10]

   The affidavit of Mrs Brujic sworn 5 December 2025 which accompanied the DS sets out the enquiries she made on 4 December 2025 on the Woollahra Council’s Development Approval portal, in particular that the plaintiff lodged a development application for the two properties on 3 August 2023 (DA) and that the consent was granted on 16 February 2024 (Consent).

3. [11]

   Two further affidavits were relied on by the defendants at the hearing. The first was by the second defendant, Mr Brujic, who states that he became aware that the plaintiff had purchased the adjoining terrace (50 King Street) in April 2022 and had thought it had been acquired as an investment property. It does not say why he thought that. The second is by the defendants’ solicitor, Ms O’Regan, who states that she became aware of the purchase ‘on or about 2022’ and assumed it was purchased as an investment property. Again, she does not say why she made that assumption. They both state that they did not become aware that the DA had been lodged or that the Consent had been obtained until 4 December 2025 when Mrs Brujic informed them of her enquiries.

4. [12]

   The Motion relied on r 36.15(1) of the UCPR or alternatively, the inherent jurisdiction of the court. Under r 36.15(1) ‘a judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.’

5. [13]

   In my view, it cannot be said that the J was given irregularly, illegally or against good faith. It was suggested by Mr Weinberger SC at one point of his argument that the plaintiff’s solicitor (who is the plaintiff’s husband) had acted improperly in not disclosing the DA and the Consent to the defendants prior to the hearing. However, no authority was given in support of that submission. While a solicitor and counsel have a duty of candour to the court, it is necessary to bear in mind that in adversarial litigation, where a defendant is legally represented, the plaintiff is entitled to put his or her best case forward, provided that this does not involve wilfully misleading the court. Barrett J discussed the scope of the duty of candour in adversarial litigation in Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 in the context of an application made under UCPR r 36.15. After referring to the observations of Santow J in Kavia Holdings Pty Ltd v Werncog Pty Ltd [1999] NSWSC 839 on the extent of the duty of candour of parties when presenting evidence to the court in support of an application, his Honour said at [64]:

6. [14]

   I do not think it can be said that the plaintiff wilfully misled the Court by failing to disclose the fact of the DA and the Consent, particularly as the defendants were aware from as early as April 2022 that the plaintiff had purchased the adjoining terrace and were in a position to make the same enquiries prior to hearing as were made with the Council on 4 December 2025. It was not suggested that the plaintiff’s future intentions with respect to the Property formed part of her evidence or submissions.

7. [15]

   The defendants rely in the alternative on the inherent jurisdiction of the court (but not on UCPR r 36.16(1)). Reliance was placed on the following observations of Mason CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302-303 (emphasis added):

8. [16]

   In Elliott v The Queen (2007) 234 CLR 38 at [31]-[32] the High Court (Gummow, Hayne, Heydon, Crennan and Kiefel JJ) recognised that this highlighted passage correctly stated the criteria to be applied in the exercise of the court’s inherent jurisdiction to re-open before the entry of judgment. See also Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684.

9. [17]

   In the present case, the defendants are seeking leave to reopen to raise a new argument regarding the assessment of damages, being that the plaintiff’s intention to carry out the rectification works (or lack thereof) is relevant to the assessment of damages, relying on Bannister & Hunter Pty Ltd v Transition Resort Holdings Pty Ltd (No 3) [2013] NSWSC 1943 at [325]-[327] where McDougall J said:

10. [18]

    I note that, as submitted by Mr Mack for the plaintiff, the new evidence for which leave is sought does not establish that the plaintiff does not have an intention to carry out the rectification work. There would need to be further cross-examination of the plaintiff in order for that be established. Hence, it is not clear that the court has proceeded according to a misapprehension of the facts. Even if that were the case, it seems to me that this is to be attributed solely to the neglect or default of the defendants who could, but did not, make the same enquiries on the Council’s website prior to the hearing which were made on 4 December 2025. The facts to which the new evidence relates were in the public domain by late 2023 and early February 2024, some 9 months before the hearing.

11. [19]

    Where, as here, the application to re-open is based on new evidence being available the court may have regard to the principles which apply to adducing new evidence on appeal in determining whether to admit that new evidence. In Smith v NSW Bar Association (1992) 176 CLR 256 at 266-7, Brennan, Dawson, Toohey and Gaudron JJ said:

12. [20]

    The present case is of the latter kind mentioned by their Honours. The appeal rules relating to fresh evidence provide that if the further evidence relates to matters that occurred before the trial the court will not receive the evidence except on special grounds: Supreme Court Act 1970 (NSW), ss 75A(7) and (8). In relation to what is meant by ‘special grounds’, in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 Clarke JA (with whom Sheller JA agreed) said (applied in Mendonca v Tonna (No 3) [2020] NSWCA 332 at [13]):

13. [21]

    The exercise of the power to admit new evidence and permit a re-opening also needs to be in accordance with ss 57 and 58 the Civil Procedure Act 2005 (NSW) (CPA), and take into account the overriding purpose under s 56 of the CPA, and of rules of court, in their application to civil proceedings, being to facilitate the just, quick and cheap resolution of the real issues in the proceedings: Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 at [39]-[40] per Spigelman CJ.

14. [22]

    In my view, a number of matters point against the grant of leave to rely on the new evidence and to re-open.

15. [23]

    First, the defendants were aware from April 2022 that the plaintiff had acquired the adjoining terrace and it was mentioned in their opening written submissions filed on 6 November 2024 at [60]. The fact that the adjoining terrace was purchased in January 2022 was established by the defendant’s counsel when cross-examining the plaintiff. The relevant exchange was as follows (Tcpt, 11 November 2024, p 51):

16. [24]

    Having clarified the date of purchase, the matter was not explored by counsel any further. There is no explanation given for why further questions were not asked to ascertain what the plaintiff’s intentions were with respect to that adjoining property. It is apparent from the affidavit dated 5 December 2025 of Mrs Brujic (who is the wife of the second defendant and was present in court during the hearing and gave evidence) that had she made the same enquiries during or immediately before the commencement of the hearing that she made on 4 December 2025 she would have established that the plaintiff had lodged a development application to amalgamate both properties. There is no explanation given in her affidavit of 5 December 2025 for why she did not do so. The only evidence put forward to explain why no investigations were made is the statement in the affidavits of Mr Brujic and Ms O’Regan that they assumed the adjoining terrace was purchased as an investment property.

17. [25]

    However, the basis of that assumption is not given and it requires explanation because it is not obvious to me why it would be made particularly as the terraces in question are relatively small (CB50), a matter known to Mr and Mrs Brujic as they previously owned the adjoining terrace on the other side of the Property (46 King Street). Mr and Mrs Brujic are experienced with development applications as they also purchased land in the same street and built a terrace house on it in 2015 (CB68) and obtained a development consent for another property they owned in Watsons Bay in 2021 (Ex 1). Reasonable diligence in all the circumstances required that those enquiries be made. Hence, the first ‘condition’ referred to in Akins is not met.

18. [26]

    Secondly, under s 58 of the CPA in making the order sought in the Motion regard must be had to the dictates of justice, including the provisions of s 56 and 57 of the CPA. Section 56 states that the overriding purpose of the CPA and the rules of court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings, and s 57 requires proceedings to be managed having regard to the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings and all other proceedings in the court. Hence, the ‘dictates of justice must be understood in light of the purposes and objectives stated in the Act, such that speed and efficiency in the sense of minimum delay and expense are essential to a just resolution of proceedings’: Baldwin v Favre (No 2) [2025] NSWSC 540 at [26] per McHugh JA.

19. [27]

    As Black J said in Re St Gregory’s Armenian School Inc [2015] NSWSC 1042 at [35]:

20. [28]

    If the defendants were permitted to reopen, it would be necessary for there to be further cross examination of the plaintiff regarding her intention to carry out the rectification work, as it cannot be inferred from the proposed new evidence that she has no intention to carry out any of the rectification work. Hence, there would need to be a further hearing and argument, including further written submissions leading to considerable delay and further cost to the plaintiff as well as the defendants. Nor is it clear that the new evidence, if admitted, would lead to a different outcome as to damages, noting that the plaintiff had lived in the Property for six years in its unrectified condition prior to the hearing. Even if it can be said that the new evidence would be the basis for an arguable case for the defendants for a reduction in damages, this needs to be balanced against the prejudice to the plaintiff resulting from the delay and increased costs, which in my view is significant in the present case.

21. [29]

    The principle of finality is also an important consideration. It means that, except in exceptional circumstances, the parties are bound by the conduct of their case at trial: Metwally v University of Wollongong (1985) 60 ALR 68 at 71; [1985] HCA 28; Water Board v Moustakas (1988) 180 CLR 491 at 497-8; [1988] HCA 12. I do not consider there to be exceptional circumstances here, particularly as the evidence now sought to be relied on was available to the defendants had reasonable enquiries been made prior to the hearing and because the defendants at the hearing chose not to challenge the evidence on quantum except to the limited extent referred to at J[285].

22. [30]

    In Baldwin at [28], McHugh JA listed the following matters drawn from the authorities as potentially relevant when considering the dictates of justice in a particular case: (a) the public interest in the timely conclusion of litigation (and ultimately, once a decision has been made, the importance of the finality of litigation); (b) whether the occasion for adducing the further evidence should have been foreseen; (c) the probative force of the evidence and the significance of the issue to which it is relevant; (d) whether the further evidence, if accepted, would probably affect the result of the case; (e) whether reopening will occasion prejudice to the other party, particularly in light of forensic decisions taken; (f) whether granting leave to reopen to lead particular evidence may have the practical effect of reopening the proceedings to a wider significant rehearing; (g) whether the court has misapprehended the evidence or the law; (h) whether the evidence was not called earlier because of a deliberate tactical decision; and (i) any explanation offered by the applicant for not having called the evidence sooner.

23. [31]

    In my view, for the reasons already given, the matters referred to in (a), (b), (e), (f) and (i) on the facts of this case do not support the grant of leave. In relation to (c) and (d) in my view it cannot be said at this stage whether the new evidence is likely to affect the outcome as to damages because it will depend on what if any further evidence is led, including through cross examination of the plaintiff. In relation to (g) and (h), there is no suggestion that the court has misapprehended the evidence or the law, or that the new evidence was not called earlier because of a deliberate tactical decision by the defendants, but they are ultimately neutral. Overall, in my view, when these and the other matters referred to earlier are weighed in the balance, the dictates of justice do not favour the grant of leave.

24. [32]

    For these reasons I am not satisfied that leave to re-open on damages in light of the matters recorded in Mrs Brujic’s affidavit dated 5 December 2025 should be granted.

Leave to reopen on liability?

1. [33]

   Set out below is the submission made in the DS on this issue:

2. [34]

   As frankly conceded in the opening paragraph of this submission, it was not in dispute at the hearing that Mr Brujic, the second defendant, was a person who carried out construction work within the meaning of s 37 of the DBPA. I gave reasons why that was correct in J[232] referring to relevant passages in Kazzi v KR Properties Global Pty Ltd t/as AK Properties Group [2024] NSWCA 143 at [78] and [126].

3. [35]

   As indicated in the passage quoted from the reasons of Barrett J in New Cap Reinsurance Corporation Ltd v AE Grant [2009] NSWSC 950 at [20] set out above, in order to allow a reopening of that question I would need to be satisfied that it is obvious that my decision has miscarried (and if not so satisfied, then the matter should be left to an appeal).

4. [36]

   Contrary to DS [27], the decision in Kazzi is directly in point. Mr Kazzi was the sole director, shareholder and nominated supervisor of the building company, Oxford (Kazzi at [2]). The contract was only entered into between the Owners and Oxford, not Mr Kazzi (Kazzi at [3]). A ground of cross-appeal in the Court of Appeal was that the Owners took issue with the primary judge’s finding that the Owners had not established that Mr Kazzi breached his statutory duty under s 37 of the DBPA in relation to some defects. This cross-appeal ground was successful. Mitchelmore JA (Gleeson JA and Basten AJA agreeing) said at [126] (emphasis added):

5. [37]

   Their Honours could not have arrived at this conclusion if they thought that Mr Kazzi was incapable of being liable under s 37 of the DBPA on account of the interposition of corporate entity interposed between him and the Owners. Put simply, the amenability of Mr Kazzi to liability under s 37 of the DBPA, notwithstanding that he is not the legal entity contracting with the Owners, is a necessary step in the reasoning of the Court of Appeal in the way described above: R Cross and J W Harris, Precedent in English Law (4th ed, 1991, Clarendon Press) at 72, cited in Bristol-Myers Squibb Company v FH Faulding & Co Ltd (2000) 97 FCR 524; [2000] FCA 316 at [150] per Finklestein J; see also AC v R (2023) 111 NSWLR 514; [2023] NSWCCA 133 at [43], [50] per Bell CJ (Adamson JA, Chen and Ierace JJ agreeing). As such, it is part of the ratio in Kazzi and therefore binding on me.

6. [38]

   Contrary to DS [27], the conclusion that Mr Brujic is amenable to liability under s 37 of the DBPA does not require the piercing of the corporate veil, which is a principle of company law where the court will, in very rare circumstances, disregard the separate legal personality of the company to identify a person who owns and controls it as the company: Prest v Petrodel [2013] 2 AC 415; [2013] UKSC 34 at [16]. Rather, such a conclusion seeks only to give effect to the plain language of s 37 of the DBPA in imposing liability on those who, like Mr Kazzi in that case and Mr Brujic in the present case, is the ‘nominated supervisor of works’ and therefore a person who ‘carries out construction work’ within that section: Kazzi at [126].

7. [39]

   Accordingly, it is not obvious that my decision has miscarried on this point and the preferable course is that the matter be left to an appeal. It would therefore be inappropriate to permit the defendants to re-open on this issue.

A ‘lacuna’ in the evidence on damages?

1. [40]

   As to the third matter, the plaintiff submits that the appropriate figure for damages is $1,052,133 (excluding pre-judgment interest). The calculation of the damages involved updating the damages table at J[282] to remove the amount attributable to item 6.8 which produced a total of $1,052,133, and then adding pre-judgment interest of $563,684.

2. [41]

   The defendants submit that a number of adjustments need to be made to the damages table at J[282]. First, the costings for item 6.6 are incorporated within the costings for items 6.2 and 6.7 (see Mr Whyte’s first affidavit at CB474) and the defendants identify a number of items totalling $16,874.60 which they say should therefore be excluded from the calculation for items 6.2 and 6.7.

3. [42]

   Secondly, the defendants submit that Mr Whyte’s calculations are based on a construction program of 38 weeks. It is argued that this does not take into account the removal of items 6.4, 6.6 and 6.8, which is said to have a cascading effect on the length of the construction program and various components of preliminaries claimed, in particular time related components and accommodation costs because they assume a 38 week construction program, including whether alternative accommodation is required at all given the plaintiff failed on item 6.8.

4. [43]

   In essence, the defendants’ position is that there is insufficient evidence from which the court can safely draw a conclusion as to the cost of rectification in light of these matters and the appropriate course is either to refer the question of quantum to a referee or to permit further evidence and submissions on quantum.

5. [44]

   The plaintiff has provided a detailed response to the DS in her reply submissions dated 11 December 2025 (PRS). I heard oral argument on 15 December 2025.

6. [45]

   I do not accept that this is a case where the court has insufficient evidence from which to safely draw a conclusion as to the quantum of damages to which the plaintiff is entitled.

7. [46]

   It is uncontroversial that:

   1. (1)

      (1) Where a plaintiff has proved substantial loss but the evidence does not enable precise quantification of it, the court should ‘do its best’ to assess the damages on the available evidence: Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83; [1991] HCA 54; Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 328; (2021) 396 ALR 545 at [76]; One Step (Support) Ltd v Morris-Garner [2019] AC 649; [2018] UKSC 20 at [38].

   2. (2)

      Consistently with that principle, the mere fact that the assessment of damages might be difficult and attended by uncertainty does not relieve the Court from the responsibility of attempting to assess those damages as best it can: Amann at 83, 102 and 125.

   3. (3)

      If the court finds damage has occurred it must do its best to quantify the loss even if a degree of speculation and guess work is involved, provided that some broad estimate can be made; Callaghan v William C Lynch Pty Ltd [1962] NSWR 871 at 877; Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167 at 183.

8. [47]

   In Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 at [135]-[137], Beazley JA (with whom Basten JA agreed) said:

9. [48]

   This case is not one where the plaintiff, although apparently able to do so, ‘has not adduced precise evidence of what has been lost’. On the contrary, she has provided a detailed and comprehensive expert report as to damages by Mr Whyte, a qualified quantity surveyor, which was not challenged. Hence the present case is properly seen as one where one where the court must do the best it can to assess damages.

10. [49]

    J[288] states the conclusion that ‘the plaintiff has succeeded in her claim for breach of contract against MBG relation to items SS#6.1, 6.2, 6.3, 6.5 and 6.7 of the Scott Schedule and is entitled to damages in the amount claimed’.

11. [50]

    The question which arises is whether it is appropriate in light of that finding to make an adjustment to the amounts in the table at J[282] to reflect the fact that the plaintiff failed on item 6.8 and, as noted at J[284], items 6.4 and 6.6 were not ‘pressed’, reflecting the fact that no amount was included for them in the table at J[282].

12. [51]

    In relation to item 6.4, the plaintiff accepts that this item was not pressed but submits that the court should not accept the defendant’s submission that there was some material impact on the construction program because item 6.4 was not pressed. The construction program is found CB553-562 with a number of rows relating to various tasks for each item. The plaintiff points out that the construction program for item 6.4 (electrical work) appears at CB556 rows 144 to 145 without its own breakdown of task or duration and that it is a minor value item which was scheduled to occur at the same time that the work for items 6.2 (rows 47, 66 and 69) and 6.7 (rows 110, 122 and 125) was being undertaken anyway. The plaintiff submits that the evidence does not establish that there should be any adjustment to the construction program for item 6.4 as, had it been made out, it was scheduled to occur when the other major works were occurring and there was no additional item for item 6.4 in the construction program. I accept the plaintiff’s submissions on item 6.4.

13. [52]

    In relation to item 6.6, the plaintiff submits that item 6.6 was not pressed in the same sense that item 6.4 was not pressed; rather, her position at the hearing was merely that Mr Whyte did not cost item 6.6 separately from item 6.2 and 6.7 because Mr Hall’s evidence was that the ‘repairs in this location (that is the internal staircase from garage westside wall) are to be included with that of 6.2 and 6.7 of this report’ (CB332). The plaintiff further submits that as the plaintiff was successful in relation to both 6.2 and 6.7, it follows that the plaintiff is entitled to damages for items 6.2 and 6.7 and hence there is no need for anything to be excluded from items 6.2 and 6.7 on account of item 6.6.

14. [53]

    As explained in the PRS at [12] it is clear that the plaintiff ran her case at the hearing on the basis of the evidence of both Mr Hall and Mr Whyte that the rectification for items 6.2 and 6.7 should include the cost of rectification works for the internal staircase from the garage at the western side of the property because that area is the same construction and defect as the garage level western wall covered by items 6.2 and 6.7, and it was for that reason that a separate amount was not ‘pressed’ in the table at J[282] for item 6.6.

15. [54]

    I have reviewed the evidence and submissions at the hearing again and accept the plaintiff’s submissions on how the plaintiff put her case on item 6.6 at the hearing. Having made the finding at J[288] that the plaintiff is entitled to damages in the amount claimed for items 6.2 and 6.7, I agree that there should be no adjustment to the damages for those items for the fact that item 6.6 was not separately ‘pressed’.

16. [55]

    In relation to item 6.8, the defendants submit that rows 70-125 of the construction program concern item 6.8 and that an adjustment to the construction program is required. The plaintiff points out that rows 70-125 found at CB555 appear under the heading ‘item 6.7’ which is an item on which the plaintiff was successful and that the only reference to item 6.8 at CB555 is at row 87 which states ‘demolish brickwork-item 6.8’ which occupies a de minimis part of week 11. The plaintiff also points out that Mr Whyte’s uncontested evidence was that the work for item 6.2 (on which the plaintiff succeeded) ‘would not be possible without complete demolition of the new works to the cellar and gym area as well as areas above including the living room at basement floor plan’ (emphasis added) (CB512). Mr Hall’s evidence was to the same effect (CB342-343). Further, the plaintiff points out that the living room walls which were in issue in item 6.8 sit on the top of RW1 and RW2 which are required to be demolished as part of the rectification work (J285) so that it must follow that the living room walls also need to be demolished and reconstructed; although she accepts that the cost of this will be borne by the plaintiff given the finding at J[223] that the plaintiff is not entitled to claim damages for the living room walls.

17. [56]

    I have reviewed this evidence again and accept the plaintiff’s submissions on these points and conclude that there is no material impact on the construction program because item 6.8 was not made out because substantially all the work required on both the living room and the garage level will still be required.

18. [57]

    The DS also seeks to challenge item 10 in the table at J[282] which relates to ‘builders’ preliminaries’. The difficulty for the defendants in this regard is that there is no basis in the evidence for an adjustment to be made to item 10 in circumstances where there was no cross examination of Mr Whyte as to the impact on item 10, or for that matter any other item in the table, if the plaintiff failed in relation to any of her defects claims. Mr Whyte’s evidence regarding builders’ preliminaries is a detailed analysis of the builder’s indirect costs, based on a construction program of 38 weeks, which appears to be a logical and reasonable estimate of those costs. It is not open to the defendants to challenge that evidence when it was not in contest at the hearing.

19. [58]

    Nor have the defendants established that any changes are necessary to the length of the construction program as a result of the non-inclusion of any amount for items 6.4, 6.6 or 6.8.

20. [59]

    It was pointed out by Mr Weinberger SC at the hearing that the amount claimed by the plaintiff for alternative accommodation (J[282], item 18) is based on 52 weeks rather than 38 weeks. Mr Mack fairly accepted that this should be reduced to 38 weeks. The correct amount for that item is $68,400 (a reduction of $25,200). Mr Weinberger SC also submitted that because no claim could be made for item 6.8, it should be concluded that the plaintiff would not need alternative accommodation. I do not accept that submission. It follows from the uncontested evidence referred to at [55] above that the living room level will be part of the building site and therefore it should be inferred that the building would not be safe for habitation during the 38-week period.

21. [60]

    The PRS at [28]-[30] also responds to other miscellaneous and relatively minor adjustments sought by the defendants at DS [13]-[16]. I accept the plaintiff’s submissions on those points.

22. [61]

    The PRS attaches a revised calculation of the total damages (excluding pre-judgment interest) of $1,052,133. Consistent with the analysis in [59] above, I have reduced this by $25,200 which gives a total figure of $1,026,933. Doing the best I can on the available evidence, I find that this is the correct measure of the plaintiff’s loss.

Calculation of pre-judgment interest

1. [62]

   As to the fourth matter, there is no dispute that the plaintiff is entitled to pre-judgment interest under s 100 of the CPA on the damages attributable to the claims on which she succeeded, as noted at J[287]. The only dispute is as to the commencement date for calculating that interest, a matter not addressed in the J.

2. [63]

   Section 100 of the CPA confers a discretion on the court in proceedings for the recovery of money, including damages, to include interest in the amount for which judgment is given on the whole or any part of the money and for the whole or any part of the period from the time the cause of action arose until the time the judgment takes effect.

3. [64]

   The plaintiff claims pre-judgment interest from 30 November 2016 (being the date when the cause of action arose) up to the date of judgment (being $563,684 if judgment were to be given on 11 December 2025). The plaintiff submits that the cause of action arose on 30 November 2016 because the contract provided that the completion date was 52 weeks from the date when the work was due to commence, which was 6 September 2016. However, the plaintiff did not move in until 30 November 2016, and so to err on the side of caution the purposes of calculating interest the plaintiff contends that the date of 30 November 2016 be uses the date when the cause of action arose rather than 6 September 2016. The plaintiff submits that the discretion under s 100 of the CPA would be exercised judicially if the plaintiff was awarded interest from 30 November 2016, because that was when the Court of action arose and the plaintiff had, prior to that date, parted with her money in paying for the price under the contract.

4. [65]

   The plaintiff relies on the following observation in Maestrale v Aspite (No 2) [2014] NSWCA 302 at [8]:

5. [66]

   The defendants submit that the schedule on which damages were claimed by the plaintiff set out at J[282] states costs for each item calculated as at 2 October 2024 on the basis of Mr Whyte’s evidence in his second affidavit dated 2 October 2024. In those circumstances, it is submitted that there is no warrant for the plaintiff to claim pre-judgment interest from 30 November 2016. Rather, the discretion to award pre-judgment interest under s 100 of the CPA should be exercised on the basis that interest runs from 2 October 2024.

6. [67]

   The starting point on this issue is that the purpose of an award of interest up to the date of judgment under s 100 of the CPA is to compensate a plaintiff for actual loss the plaintiff suffers by being kept out of his or her money during the relevant period: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663; [1991] HCA 3, applied in Grincelis v House (2000) 201 CLR 321 at 328; [2000] HCA 42; see also Haines v Bendall (1991) 172 CLR 60 at 66–67; [1991] HCA 15. The award of interest involves the court exercising a discretion to compensate a successful party for the practical loss it has suffered: Screenco Pty Ltd v RL Dew Pty Ltd (2003) 58 NSWLR 720; [2003] NSWCA 319 at [123].

7. [68]

   In Mr Whyte’s first affidavit dated 7 March 2022 he calculated the cost of rectifying the defective works ‘as of March 2022’ at $1,067,387. In his second affidavit dated 2 October 2024 he updated the figure of $1,067,387 by reference to the building cost index issued by the Australian Institute of Quantity Surveyors to state an updated amount for the cost of rectification as of September 2024 at $1,246,815 (including GST). He stated in his second affidavit that ‘this updated figure accurately reflects the increase in build costs from March 2022 to September 2024’. The schedule at J[282] adopts these ‘updated figures’.

8. [69]

   I accept the defendants’ submission that it would overcompensate the plaintiff if pre-judgment interest runs from the date on which the cause of action arose. As stated in the passage from Maestrale quoted above, the time at which the cause of action arises will often provide an appropriate date from which interest should run. However, that is not so in the present case because the damages are calculated as an amount which would compensate the plaintiff for the cost of rectification of the defective work had it been received on 30 September 2024.

9. [70]

   While the general rule is that damages for breach of contract are assessed at the date the cause of action arose, that is not always so with one recognised example of departure from the general rule being the case of breach of a positive duty to carry out building work leading to the calculation of damages based on the cost of carrying out the work: see J D Heydon, Heydon on Contract (Lawbook Co, 2019) at [26.220]. The present case is an example of this because the plaintiff has relied on expert evidence which involves the damages being assessed as the cost of rectifying the defective work as at 30 September 2024. Thus the ‘relevant period’ in which the plaintiff has been kept out of her money (see [66] above) is from 1 October 2024 to the date of judgment.

10. [71]

    I note that a similar approach was taken in Walton Construction Pty Ltd v Illawara Hotel Co Pty Ltd [2011] NSWSC 1188 at [167]-[168], where McDougall J held that ‘interest from the date of practical completion up until the date of the referee’s assessment has effectively been brought to account because the referee made her assessment in 2009’ (see also Souter v Condor Developments [2012] WASCA 227 at [45]). This part of his Honour’s judgment was not disturbed on appeal: Illawarra Hotel Co Pty Ltd v Walton Construction Pty Ltd (2013) 84 NSWLR 410; [2013] NSWCA 6 at [147].

11. [72]

    As such, in my view the plaintiff will be adequately compensated for being kept out of her money if she receives pre-judgment interest from 1 October 2024 to the date of judgment. Applying pre-judgment interest in the ordinary way by reference to an interest calculator based on Practice Note SC Gen 16, the amount of pre-judgment interest on the damages is $101,622.79.

Conclusion

1. [73]

   The Court will make the following orders:

   1. (1)

      Defendants’ Notice of Motion filed 12 December 2025 is dismissed with costs.

   2. (2)

      The Defendants are to pay

   3. (3)

      On or before 7 January 2026, the Plaintiff to file and serve her submissions (of no more than 5 pages) and evidence as to costs.

   4. (4)

      On or before 4 February 2026, the Defendants to file and serve their submissions (of no more than 5 pages) and evidence as to costs.

   5. (5)

      On or before 11 February 2026, the Plaintiff to file and serve any submissions in reply (of no more than 3 pages) as to costs.

   6. (6)

      The question of costs to be dealt with on the papers unless any party seeks an oral hearing.