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 341Westpac 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…
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- AGLC
- Barclay v English [2009] QSC 258
- Case
- [2009] QSC 258
- Decision Date
CaseChat Overview and Summary
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
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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