The NSW Supreme Court has confirmed that defects in a
concrete slab don't automatically justify full removal and
replacement. In 85 Princess Pty Ltd v Fleming, the Court
found breaches of warranty but declined to award remediation and
replacement costs and only awarded nominal damages, because damages
for monitoring and repair were not claimed or supported by
evidence.
In issue
- Whether a concrete slab was defective,
- if so, whether the defendant breached his contractual
warranties, and
- if so, what was the correct measure of damage.
The background
Mr Fleming (defendant) was the director, secretary and sole
shareholder of Fleming Investments (ACT) Pty Ltd (Fleming
Investments), who owned land located at 16 Spongolite Street, in
the Australian Capital Territory (land). Fleming Investments
constructed two warehouses (premises), each with a concrete slab,
which was poured in April 2020 (slab). In early 2021, 85 Princess
Pty Ltd (plaintiff) and Fleming
