Performance anxiety - intention and ability to rectify and the award of rectification damages

摘要

The foundational Australian case Bellgrove v Eldridge established that the prima facie measure for defective building works in breach of contract was the amount of damages required to rectify the defective works. However, recent Australian cases have suggested that rectification damages may not be available where a plaintiff does not intend to carry out rectification works or is unable to do so because they no longer own the defective building. After surveying relevant case law, this article argues that contract law should require builders to pay rectification damages irrespective of the plaintiff's intention or ability to rectify, as doing so will provide appropriate and necessary protection to the plaintiff's interest in exact contractual performance and will produce favourable risk allocation outcomes.