One of the questions in the law of private law remedies is: how do we repair the wrong that has been done? What is the best way of doing this which nevertheless respects the autonomy of the parties and balances their rights?
One way in which courts can remedy some wrongs is by ordering the person to do what they ought to have done in the first place. For this purpose, we have the remedies of specific performance (which generally applies to contract) and injunctions (which apply more broadly). The court tells the defendant that they should do what they said they’d do, or restrains the defendant from acting in a way which is wronging the plaintiff. Usually, in common law at least, damages are the default remedy and plaintiffs are only entitled to specific relief if damages are inadequate.
A topic which interests me greatly is the idea of rectification damages and rectification orders. Say you have a house which you contracted to have painted Sunshine Yellow. The painter has painted the house in the subtly different colour known as Custard Yellow, and to you it looks far less attractive. However the diminution in value to the house is minimal. Should the painter be required to merely pay the for the reduction in value to the house, or should the painter be required to pay for the house to be repainted? Or should the painter perhaps be forced to repaint the house?
Fancy my excitement when I saw a case which raised rectification issues! In The Age on Thursday, the following story appeared:
The exterior wall of the Newry Street factory in Richmond before it was torn down.
A DEVELOPER who knocked down a 90-year-old Richmond factory in contravention of a planning permit has been ordered to rebuild the original walls brick by brick.
Soon after the planning permit for a small four-storey block of flats in 7 Newry Street was issued in March last year, developers razed the original brick building.
On the site now, tucked away in the heart of the once-working-class suburb, there is no trace of the historic red-brick factory that was supposed to be incorporated in the new 24-unit development.
The aftermath of the demolition.
Five weeks ago Victoria’s planning tribunal made an unusual order forcing both the developer, a company owned by the directors of the Crema Group, and builder Kubic Pty Ltd to reconstruct three of the factory’s original walls.
The developers claimed they demolished the factory walls because of structural cracks and insufficient footings. But Yarra Council took them to the tribunal seeking their restoration.
Tribunal member Russell Byard ordered the walls be reinstated ”as near as practicable to the condition prior to such demolition [excluding the reinstatement of any structural defects] … using the same bricks that formed part of the original walls.”
The builders are required to have their work finished before August.
The council also sought in the Melbourne Magistrates Court a fine and conviction for breaching the planning permit.
How fascinating is that? The Tribunal is requiring the builder to rebuild the entire historic factory wall before they can continue to build the flats. In this case, it seems actual rectification is the way to go.