The law recognises that owners can and do enter into contracts to deliver a particular outcome. The outcome might be for commercial reasons, or the outcome might be purely for eccentric reasons.
The usual measure of damage for a breach of a landscaping contract is to bring the work into conformity with the contract requirements, subject to the proviso that the claimant is seeking compensation for a genuine loss and not merely using a technical breach to secure an uncovenanted profit.
So, for example, if you agree with an owner to place 10 coins in the footings of their $50,000 feng shui water fountain, but you do not, then even if the fountain is perfect in every other way, a Court is likely to require you to pay the reasonable costs of inserting the coins in the fountain’s footings. That might mean that you have to pay the entire costs of demolition and reconstruction of the fountain!
What can you do to protect yourself?
- Recognise and avoid pedantic or eccentric customers.
- Pay meticulous attention to detail when recording the scope of work – and do the work precisely to scope.
- Include a clause in your contract in which you and the owner agree that the measure of damage for any breach by you is not the cost to rectify, but is the cost to rectify, or the loss of value in the property according to an independent valuer, whichever is the lesser amount…
- put all your contracts in writing
On that important note, stay tuned for the release of the MLSA Domestic Landscape Works Contract in early 2019.
This article was compiled for MLSA members by Gold Sponsor FBR Law, who are kindly offering a unique fee structure for MLSA members. If you have concerns you would like to discuss with a lawyer, you can receive a free 15-minute phone consultation with FBR Law (complimentary with your MLSA membership). Please email [email protected] to book.