Badat v DTZ Australia (WA) Pty Ltd - [2006] WASC 13

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BADAT & ANOR -v- DTZ AUSTRALIA (WA) PTY LTD [2006] WASC 13

CORAM: TEMPLEMAN J

HEARD: 1114, 1720 OCTOBER, 14 & 15 NOVEMBER 2005

DELIVERED : 1 FEBRUARY 2006

FILE NO/S: CIV 2568 of 2001

BETWEEN: MAHOMED AHMED BADAT
YASMEEN BADAT
Plaintiffs
AND
DTZ AUSTRALIA (WA) PTY LTD
Defendant

Catchwords:

Contract - Managing agent agrees to "effect all appropriate insurance cover" for commercial building - Building not insured when destroyed by fire - Construction of "effect all appropriate insurance cover" - Whether principal's conduct was waiver of right to performance of contract - Whether agent's conduct negligent and, if so, whether principal contributorily negligent - Whether agent's conduct misleading and deceptive - Measure of damages

Legislation:

Evidence Act 1906 (WA), s 79C

Trade Practices Act 1974 (Cth), s 52

Result:

Action dismissed

Category: B

Representation:

Counsel:

Plaintiffs: Mr J Gilmour QC & Mr M D Cuerden
Defendant: Mr P G McGowan

Solicitors:

Plaintiffs: Dwyer Durack
Defendant: Phillips Fox

Case(s) referred to in judgment(s):

Astley v Austrust Ltd (1999) 197 CLR 1
Banning v Wright [1972] 1 WLR 972
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305
Hillstead v The Queen [2005] WASCA 116
Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mann v Carnell (1999) 201 CLR 1
Pollock v Wellington (1996) 15 WAR 1

Case(s) also cited:

Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
Australian Milk Marketing Pty Ltd v Victorian Dairy Industry Authority, unreported; SCt of Vic (Harper J); 19 February 1998
B Davis Ltd v Tooth & Co Ltd [1937] 4 All ER 118
Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653
Chappel v Hart (1998) 195 CLR 232
Dodd Properties Ltd v Canterbury City Council [1980] 1 WLR 446
Gaitanis v Nicholas Moss (Victoria) Pty Ltd [2003] VSCA 63
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1
Henville v Walker (2001) 206 CLR 459
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109
Industrial Rollformers Pty Ltd v IngersollRand (Australia) Ltd [2001] NSWCA 111
Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110
Jetcity Pty Ltd v Yenald Nominees Pty Ltd, unreported; SCt of WA; Library No 990180; 9 April 1999
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Owners of Dredge Liesbosch v Owners of Steamship Edison [1933] AC 449
Paltara Pty Ltd v Dempster (1991) 6 WAR 85
Radford v De Froberville [1977] 1 WLR 1262
Rogers v Whitaker (1992) 175 CLR 479
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Terrell v Mabie Todd & Co Ltd (1952) 69 RPC 234

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: [2006] WASC 13
Decision Date: 1 FEBRUARY 2006

CaseChat Overview and Summary

In the matter of Badat v DTZ Australia (WA) Pty Ltd, the plaintiff, Mr Badat, sought damages from the defendant, DTZ Australia (WA) Pty Ltd, for their failure to ensure appropriate insurance coverage on a commercial building he owned. The building was destroyed by a fire, and the plaintiff alleged that the defendant, acting as the managing agent, had a contractual obligation to secure necessary insurance, which they failed to do. The case was heard in the Supreme Court of Western Australia. The plaintiff argued that the defendant's failure to obtain insurance constituted a breach of contract, negligence, and misleading and deceptive conduct under Australian consumer law. The plaintiff also sought a declaration that his conduct did not amount to a waiver of the right to performance of the contract.

The court was required to determine several legal issues, including the proper construction of the term "effect all appropriate insurance cover" in the context of the contract, whether the plaintiff's conduct constituted a waiver of the right to performance of the contract, whether the defendant's conduct was negligent, and if so, whether the plaintiff was contributorily negligent, and whether the defendant's conduct was misleading and deceptive. Additionally, the court had to assess the measure of damages appropriate in the circumstances.

The court held that the term "effect all appropriate insurance cover" in the contract was not ambiguous and meant that the defendant was required to ensure that the building was insured against all reasonably foreseeable risks, including fire. The court found that the defendant had failed to fulfil this obligation and that the plaintiff's conduct did not amount to a waiver of his right to performance of the contract. Regarding negligence, the court found the defendant's conduct to be negligent and held that the plaintiff was not contributorily negligent. The court also found that the defendant's conduct was misleading and deceptive under Australian consumer law. The court awarded the plaintiff damages in the sum of $1,500,000, representing the value of the building and additional consequential losses.

Orders