Badat v DTZ Australia (WA) Pty Ltd

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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

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Details
Case
[2006] WASC 13
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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