History reveals an enduring juridical difficulty in reconciling established compensatory principles with the proposition that a plaintiff should receive the cost of curing defective building work in circumstances where the award will not be put to its premise. English courts have attempted to resolve that difficulty by introducing intention to rectify as a relevant matter in assessing the entitlement to a cost of cure award; that without an intention to rectify, a cost of cure award would not be “compensation for loss but a very substantial gratuitous benefit”.2 That dichotomy between harm and award is most apparent in circumstances where the plaintiff has disposed of its interest in the defective property. This article examines how Australian courts have dealt with that issue and identifies aspects that are likely to require consideration upon any development of the law.

The doctrinal origin of the obligation to pay damages upon a breach of contract is the subject of conflicting jurisprudence. Some consider that it arises by reason of contractual obligation; that the parties agree not only to undertake the primary obligations expressly stipulated in the contract, but also agree to remedy, in money terms, any loss consequent upon a failure to