The case of Lichaa v Boutros  NSWCA 322 involved a dispute between a home owner (Ms Lichaa) and a builder (Mr Boutros), who was brought on to expand a family home.
In November of 2015, before construction was completed, several disputes occurred, causing Ms Lichaa to repudiate the contract by preventing Mr Boutros from accessing the site from the 2 November 2015. Mr Boutros accepted her repudiation and left the site after alleged threats from a friend of Ms Lichaa, electing to terminate the contract.
In or after March of 2016, Ms Lichaa brought on a second builder (AIT), to rectify defects and damage in completed works, complete the earlier works and conduct additional construction.
As the incomplete works on site had been left unprotected between the cessation of work by Mr Boutros in November of 2015 and the assumption of responsibility for the protection of the site in March of 2016, water damage occurred, with the number of issues caused by exposure to the elements and the amount caused by defects being in dispute between the parties.
No ‘failure to mitigate loss’ argument was pleaded, however it was suggested that the damage or defects were at least in some part caused by Ms Lichaa’s failure to protect the site from water damage in the time between when Mr Boutros left the site and AIT became responsible for the site.