Alcock v KEM Projects Pty Ltd

[2020] ACTMC 9

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Alcock v KEM Projects Pty Ltd & Anor

Citation:

[2020] ACTMC 9

Hearing Dates:

27 – 28 February 2017, 26 – 27 March 2018, 20 – 21 September 2018, 7 March 2019

DecisionDate:

1 May 2020

Before:

Magistrate Morrison

Decision:

See paragraph [201]

Catchwords:

LIMITATION OF ACTIONS – contracts, torts and personal actions – application of s 11 of the Limitation Act 1985 (ACT) (“Limitation Act”) – application for extension of time under s 40 of the Limitation Act where cause of action relates to latent damage to property or economic loss in relation to such damage – where alternative causes of action brought in contract and negligence – where plaintiff is not the owner of the property – claim in negligence is in time – where claim in contract meets the definition of economic loss in relation to latent damage – consideration of exercise of discretion in relation to contract claim – length of time between damage and when damage might reasonably have been discovered by the plaintiff – actual prejudice to defendants – relevance of availability of alternative cause of action to question of prejudice – application for extension of time refused

CIVIL LAW – NEGLIGENCE – where plaintiff pleaded claim as breach of a duty of care – where closing submissions rely on claim for contribution under s 21 of the Civil Law (Wrongs) Act 2002 (ACT) – plaintiff not required to specifically plead a claim for contribution – where plaintiff did not plead elements giving rise to a claim for contribution – plaintiff not permitted to raise claim for contribution in closing submissions – where plaintiff did not respond to deficiencies in evidence in establishing breach of duty of care – claim in negligence dismissed

CIVIL LAW – BUILDING, ENGINEERING AND RELATED CONTRACTS – existence of contract for building work  – whether it was a term of the contract that the plaintiff would be remunerated for “applying his building licence to” a project – whether it was a term of the contract that the plaintiff would perform and be remunerated for supervision work – assessment of evidence – no express agreement that the plaintiff would be remunerated – where quantum meruit claim not pursued – claim dismissed

CIVIL LAW – BUILDING, ENGINEERING AND RELATED CONTRACTS – existence of contract for provision of expert and rectification services – whether there was an agreement as to the rate of remuneration – extent of work performed – assessment of evidence – finding that there was agreement as to rate of remuneration – in the alternative, implication of term to pay a reasonable rate – assessment of damages and interest

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) s 21

Civil Liability Act 2002 (NSW)

Limitation Act 1985 (ACT) ss 11, 40

Trade Practices Act 1974 (Cth) s 54

Cases Cited:

Alucraft Pty Ltd (in liq) v Grocon Ltd [1996] 2 VR 386

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