The NSW Court of Appeal has handed down its decision in
Walker Group Constructions v Tzaneros Investments [2017]
NSWCA 27. The plaintiff claimed damages from Walker Group
Constructions alleging defective concrete paving. Once the pavement
was laid, cracks began to develop, and as a result, some concrete
slabs had to be repaired. Sometime later the plaintiff carried out
further rectification whereby old slabs were replaced with
reinforced concrete slabs. That cost was claimed from the
defendant. The defendants argued that the rectification works
undertaken by the plaintiff would result in betterment.
At first instance, The New South Wales Supreme Court held that
it was not appropriate to make a discount for betterment, a view
which the Court of Appeal shared. The court focused on the two
circumstances enunciated in Tyco Australia Ltd Pty v Optus
Networks Pty Ltd [2004] NSWCA 333 in which an allowance for
betterment would be made:
