Barton v Stiff - [2006] VSC 307

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6311 of 2005

CHRISTOPHER PHILLIP BARTON and CASSIE FRANCIS BARTON (trading as FREEFORM BUILDERS)	Plaintiffs
v
JOHN STIFF and DULCIE STIFF	Defendants

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JUDGE:	Hargrave J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2006
DATE OF JUDGMENT:	8 November 2006
CASE MAY BE CITED AS:	Barton v Stiff
MEDIUM NEUTRAL CITATION:	[2006] VSC 307

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Building and Construction – contract for design and construction of house – warranty by designer/builder that materials would be good and suitable for the purpose for which used - actual and likely soil and groundwater conditions not such as to give rise to expectation that bricks would be subject to attack by salty groundwater – bricks failed due to attack by salty groundwater – whether designer/builder liable – Domestic Building Contracts Act 1995 (Vic), s. 8.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S Stuckey	Richmond & Bennison
For the Defendants	Mr S Smith	Timothy Hemsley & Associates

HIS HONOUR:

Introduction

By a building contract dated 5 January 2000 the plaintiffs (“the builders”) agreed to construct a new house on land owned by the defendants (“the owners”) in Wodonga. Some of the bricks used in the construction of the house, below the damp proof course, failed because they were affected by salty groundwater at the land.

The owners sued the builders in the Victorian Civil and Administrative Tribunal. The Tribunal ordered that the builders pay compensation to the owners for breach of the building contract.[1] The builders have appealed, by leave, to this Court.
[1]Stiff v Barton [2005] VCAT 821.

The issue on appeal, and before the Tribunal, is who should bear the cost of rectifying the affected brickwork.

Facts

Under the contract, the builders agreed to construct the house in accordance with plans and specifications prepared and supplied by them and in accordance with engineering designs prepared on their behalf.

Under cl. 7.0 of the contract, the builders were required to give the owners a soil test report and engineer’s design of the structural aspects of the house, including the footings. As appears hereafter, the only soil test report which existed at the time of construction of the house was one prepared in 1992, eight years before the construction of the house. The owners gave a copy of this report to the builders.

Clause 11 of the contract contains express terms which are identical to the statutory warranties specified in s. 8 of the Domestic Building Contracts Act 1995 (Vic) (“the Act”).

Clause 11 of the contract relevantly provides:

11.1The Builder warrants that the work will be carried out in a proper and workmanlike manner and in accordance with the Plans and Specifications set out in the Contract.
11.2The Builder warrants that all materials to be supplied by the Builder for use in the work will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the Contract,…

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 Barton v Stiff

Details

AGLC: Barton v Stiff [2006] VSC 307
Case: [2006] VSC 307
Decision Date: 8 November 2006

CaseChat Overview and Summary

In Barton v Stiff, the plaintiff sought damages from the defendant, a designer and builder, for the failure of bricks used in the construction of a house due to attack by salty groundwater. The case was heard in the County Court of Victoria. The plaintiff argued that the defendant had breached an implied warranty that the materials would be good and suitable for their intended purpose. The defendant, on the other hand, contended that the conditions of the soil and groundwater did not warrant the expectation that the bricks would be subject to such attack and that the failure of the bricks was due to unforeseen circumstances.

The court was required to determine whether the defendant was liable for the failure of the bricks under the terms of the Domestic Building Contracts Act 1995 (Vic), specifically section 8, which provides for the implied warranties regarding materials and workmanship. The central issue was whether the actual and likely soil and groundwater conditions at the site could have reasonably led to an expectation that the bricks would be subject to attack by salty groundwater, and whether the defendant's failure to account for this constituted a breach of the implied warranty.

The court found that the actual and likely soil and groundwater conditions did not give rise to an expectation that the bricks would be subject to attack by salty groundwater. Given the nature of the site and the common knowledge of the building industry, the court concluded that it was not reasonable to expect such an attack. As a result, the defendant was not liable for the failure of the bricks. The court dismissed the plaintiff's claim, holding that the defendant had not breached any implied warranty under the Domestic Building Contracts Act 1995 (Vic).

The court made no orders for costs.

Orders