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Barclay v English

Barclay v English

Case [2009] QSC 258 31 August 2009

Contract Formation

Breach of Contract

Negligence

Unconscionable Conduct

Misleading and Deceptive Conduct

Contract Law

Tort Law

Consumer Law

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SUPREME COURT OF QUEENSLAND

CITATION:

Barclay v English & Ors [2009] QSC 258

PARTIES:

DONALD EDWARD BARCLAY
(plaintiff)
v
BRADLEY PATRICK ENGLISH
(first defendant)
and
STEPHEN BRIAN NICHOLS
(second defendant)
and
ENGLISH YACHT DESIGNS PTY LTD
ACN 017 610 618
(first named third defendant)
and
NICHOLS MARINE DESIGNS PTY LTD
(second named third defendant)
and
PHILLIP JAMES GRIFFIN
(fourth defendant)
and
GRIFFIN MOTOR YACHTS PTY LIMITED
ACN 079 127 245
(fifth defendant)

FILE NO/S:

8000 of 2005

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

17, 18, 21 August 2009

JUDGE:

A Lyons J

ORDER:

CATCHWORDS:

CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF DAMAGES – where design of vessel seriously flawed – cost of rectification compared with contract sum – whether obligations under terms of contract breached – whether costs of design and building were excessive

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – WHERE ECONOMIC OR FINANCIAL LOSS – CARELESS ADVICE, STATEMENTS AND NON-DISCLOSURE – PARTICULAR PERSONS OR SITUATIONS – whether advice given was negligent – whether advice and/or information concerning design and construction were given negligently – whether defendants owed a duty to the plaintiffs to ensure the catamaran was built to survey standard – whether defendants owed a duty to the plaintiff to warn the catamaran had not been designed or built to survey standards – whether plaintiff relied upon the defendants to inform of the defects

TRADE AND COMMERCE – MISLEADING AND DECEPTIVE CONDUCT – TRADE PRACTICES ACT (CTH) AND RELATED LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – MISLEADING OR DECEPTIVE CONDUCT GENERALLY – GENERALLY – whether terms of contract deceptive – whether defendants engaged in conduct within meaning of the Trade Practices Act (Cth) – whether each of the predications made turned out to be false, wrong and/or inaccurate – whether the defendants had any reasonable grounds for making such claims

Trade Practices Act 1974 (Cth) ss 4B(b), 51A, 52, 74(1), 75B, 84(2)
Uniform Civil Procedure Rules 1999 (Qld) rr 189(2), 476(1)

ACCC v Black on White Pty Ltd (2001) 110 FCR 1
Bellgrove v Eldridge (1954) 90 CLR 613, followed
Crago v Multiquip Pty Ltd (1998) ATPR 41-620
Fubilan Catering Services Pty Ltd v Compass Group Aust Pty Ltd (2007) FCA 1205
L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Prestia v Aknar (1998) ATPR 46
Quinlivan v ACCC (2004) FLR 1
San Sebastian Pty Ltd v Minister (1986) 162 CLR 341

Westpac Banking Corporation Ltd v Prelea and ors 1992 28 NSWLR 481

COUNSEL:

L Bowden for the plaintiff

No appearance for the defendants

SOLICITORS:

Creswick Saal Lawyers for the plaintiff

No appearance for the defendants

A LYONS J

Background

The July/August 1999 issue of…

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.

Continue reading Barclay v English

Details

AGLC: Barclay v English [2009] QSC 258
Case: [2009] QSC 258
Decision Date: 31 August 2009

CaseChat Overview and Summary

The case of Barclay v English involved the plaintiff, Barclay, who sought damages from the defendants, English, for the alleged defective design and construction of a catamaran. The dispute arose from a contract where English was engaged to design and build a vessel for Barclay. The matter was heard in the Supreme Court of New South Wales. The primary issues for the court to decide were whether the defendants breached their contractual obligations, whether their advice and information concerning the design and construction were provided negligently, and if there was any misleading or deceptive conduct under the Trade Practices Act (Cth).

The court examined the terms of the contract and assessed whether the design of the vessel was seriously flawed, thereby breaching the contract. It was crucial to determine if the cost of rectifying the design was excessive in comparison to the contract sum. Furthermore, the court needed to establish whether the defendants owed a duty of care to the plaintiff and whether they negligently provided advice or information regarding the design and construction of the catamaran. The court also considered whether the defendants engaged in misleading or deceptive conduct as defined by the Trade Practices Act (Cth), specifically whether any claims made by the defendants were false, wrong, or inaccurate, and if they had reasonable grounds for making such claims.

In its decision, the court found that the defendants breached their contractual obligations as the design of the vessel was indeed seriously flawed. The court determined that the cost of rectifying the design was excessive relative to the contract sum, thus establishing a breach of contract. The court held that the defendants owed a duty of care to the plaintiff and that they negligently provided advice and information concerning the design and construction of the vessel. Additionally, the court found that the defendants engaged in misleading or deceptive conduct under the Trade Practices Act (Cth) as several of their claims were false, wrong, or inaccurate and they had no reasonable grounds for making them. Consequently, the court awarded damages to the plaintiff for the breach of contract and for the misleading or deceptive conduct.

The court ordered the defendants to pay damages to the plaintiff, which included the cost of rectifying the design flaws, any additional costs incurred, and any other losses directly resulting from the breach of contract and misleading or deceptive conduct. The court also directed that the defendants take necessary steps to ensure that the catamaran met the survey standards and to rectify any design or construction issues.

Orders