Alexandrou v Pacific Pest Control Pty Ltd - [2016] NSWDC 193

District Court

New South Wales

Medium Neutral Citation: Alexandrou v Pacific Pest Control Pty Ltd [2016] NSWDC 193
Hearing dates: 8 – 10 June 2016 and 4 August 2016
Date of orders: 26 August 2016
Decision date: 26 August 2016
Jurisdiction: Civil
Before: Montgomery DCJ
Decision:
(1) Judgment for the defendants
(2) Plaintiffs to pay the defendants’ costs of proceedings

Catchwords: Negligence – Pest Inspection
Legislation Cited: Conveyancing Act (NSW) 1919
Civil Liability Act 2002 (NSW)
Australian Consumer Law
Uniform Civil Procedure Rules 2005
Cases Cited: Jones v Dunkell (1959) 101 CLR 298
HG v The Queen (1999) 197 CLR 414
Effem Foods Pty Limited v Lake Cumbeline Pty Limited (1999) 161 ALR 599
Astley v Austrust Limited (1999) 197 CLR 1
Category: Principal judgment
Parties: Andreas Alexandrou (First Plaintiff)
Katina Alexandrou (Second Plaintiff)
Pacific Pest Control Pty Ltd (First Defendant)
Con Francis (Second Defendant)
Representation:
Counsel:
J Anderson (Plaintiffs)
M Hutchings (Defendants)
Solicitors:
Adams & Co Lawyers Pty Ltd (Plaintiffs)
Sparke Helmore Lawyers (Defendants)

File Number(s): 2014/285496

Judgment

The plaintiffs are a married couple presently living with their two children at xx Augusta Road, Punchbowl which property is the subject of the claims in these proceedings (“the property”).
Mrs Alexandrou is a homemaker and works part-time as an administration officer at Pickles Motor Auctions. At the time of hearing Mr Alexandrou had experience with building through his employment as a labourer with Meriton Apartments. However, at the time of the subject events, his experience was of working with motor mechanics, not in building.
Prior to their purchase of the subject property, the plaintiffs had some experience with property improvement. Together they had purchased and improved before sale a home unit in Bankstown which they sold in 2010 and a home unit at xxx Victoria Road, Punchbowl which they purchased in 2010 and sold with the benefit of its improvements in October 2012. At the time of the purchase of the property Mr and Mrs Alexandrou were renting xxx Victoria Road, Punchbowl from the investor to whom they had sold it and were paying $480.00 per week rent.
The property consisted of three bedrooms, one bathroom, a laundry with a second toilet, kitchen, dining and lounge rooms. Externally were a garage and a free standing shed. The home was located on a 515 square metre block of land. It is the physical house with which the claim is concerned and in these reasons reference to the “property” will almost invariably be a reference to the physical house upon the block.
Having inspected it, the plaintiffs, on 12 December 2013, executed the contract in the form of the 2005 edition of the Law Society of New South Wales Contract for Sale of Land. The vendors were Abdul and Nada Ghazal. The front page of the contract recorded numbers and lined-through numbers which on the evidence of Mrs Alexandrou recorded a course of negotiation to the agreed purchase price. The front page of the contract identified the plaintiffs’ solicitor for the purchase…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWDC 193
Decision Date: 26 August 2016

CaseChat Overview and Summary

In the case of Alexandrou v Pacific Pest Control Pty Ltd, the plaintiff sought damages for an alleged failure by the defendants to provide a proper pest inspection of a property. The dispute arose after the plaintiff purchased a property and subsequently discovered pest infestations. The plaintiff alleged that the defendants, who had conducted a pest inspection prior to the sale, negligently failed to identify the infestations, resulting in significant financial loss to the plaintiff. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the defendants owed a duty of care to the plaintiff and whether they breached that duty by failing to detect the pest infestations. The court had to consider whether the defendants' conduct fell below the standard of care expected of a reasonable pest control professional and whether such a breach caused the plaintiff's loss. The court also needed to determine whether the plaintiff's reliance on the defendants' inspection report was reasonable and justified.

The court found that the defendants did owe a duty of care to the plaintiff. However, the court concluded that the defendants had not breached this duty. The evidence showed that the inspection was conducted in accordance with industry standards and practices, and there was no evidence that the defendants failed to use reasonable care and skill. The court also found that the plaintiff's loss was not a direct result of the defendants' inspection report. Instead, the infestations were not detectable at the time of the inspection and subsequently developed. The court held that the plaintiff's reliance on the report was reasonable and justified. Consequently, the plaintiff's claim for damages was dismissed.

The court ordered that judgment be entered in favour of the defendants and that the plaintiffs pay the defendants' costs of the proceedings.

Orders

Orders of the court

(1) Judgment for the defendants

(2) Plaintiffs to pay the defendants’ costs of proceedings

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Alexandrou v Pacific Pest Control Pty Ltd [2016] NSWDC 193
Hearing dates:	8 – 10 June 2016 and 4 August 2016
Date of orders:	26 August 2016
Decision date:	26 August 2016
Jurisdiction:	Civil
Before:	Montgomery DCJ
Decision:	(1) Judgment for the defendants (2) Plaintiffs to pay the defendants’ costs of proceedings
Catchwords:	Negligence – Pest Inspection
Legislation Cited:	Conveyancing Act (NSW) 1919 Civil Liability Act 2002 (NSW) Australian Consumer Law Uniform Civil Procedure Rules 2005
Cases Cited:	Jones v Dunkell (1959) 101 CLR 298 HG v The Queen (1999) 197 CLR 414 Effem Foods Pty Limited v Lake Cumbeline Pty Limited (1999) 161 ALR 599 Astley v Austrust Limited (1999) 197 CLR 1
Category:	Principal judgment
Parties:	Andreas Alexandrou (First Plaintiff) Katina Alexandrou (Second Plaintiff) Pacific Pest Control Pty Ltd (First Defendant) Con Francis (Second Defendant)
Representation:	Counsel: J Anderson (Plaintiffs) M Hutchings (Defendants) Solicitors: Adams & Co Lawyers Pty Ltd (Plaintiffs) Sparke Helmore Lawyers (Defendants)
File Number(s):	2014/285496