85 PRINCESS PTY LTD v Ian Alexander Fleming

2025/00202613

CONTRACT – in 2021 85 Princess Pty Ltd (the appellant) and Fleming Investments engaged in negotiations for the purchase of land – Mr Ian Alexander Fleming (the respondent) was the director, secretary and sole shareholder of Fleming Investments – Fleming Investments developed the land by procuring the construction of two warehouses, both placed on a concrete slab – before contracts were exchanged, cracking had appeared in the slab and steps were taken by the respondent to attend to the cracks by the application of an epoxy filler – a contract for sale of the leased land was entered into in September 2021, at a purchase price of $5,050,000 – the contract for sale included a series of special conditions and the respondent gave a series of personal warranties concerning the building works that had been carried out on the land, including work to rectify the defects that had been identified – the appellant raised concerns about defects, including cracking in the concrete slab – the appellant commenced proceedings in August 2022 and contended that the concreted slab needed to be removed and replaced at a cost of $5,313,593.39 – the primary judge held that while the respondent breached several warranties the appellant was entitled only to nominal damages assessed to be $100 (for the purpose of vindication) – whether the primary judge erred in finding that the appellant was only entitled to nominal damages – whether the primary judge erred in finding that the appellant did not have an intention to replace the concrete slab – whether the primary judge erred in finding that the appellant would prudently address the damage by putting in place a monitoring program and filling the cracks – whether the primary judge erred in finding that the plaintiff would anticipate steps that would require only an unspecified portion of any award of $5,313,593.39 – whether the primary judge erred in finding that it would not be rational or reasonable for the appellant to spend $5,313,593.39 – whether the respondent discharged an evidential and legal onus in relation to what was a reasonable response – whether the appellant had not established that it had suffered loss in the claimed amount – whether the primary judge erred in finding that the appellant was required to establish damage by reference to the cost of implementing a monitoring and repair program.