Brian Geaney Pty Ltd & Anor v Close Constructions Pty Ltd - [2003] QSC 393

SUPREME COURT OF QUEENSLAND

CITATION: Brian Geaney Pty Ltd & Anor v Close Constructions Pty Ltd & Ors [2003] QSC 393

PARTIES:  BRIAN GEANEY PTY LTD ACN 010 651 546
(First Plaintiff)
and
THE PROPRIETORS 102 DENHAM STREET,            BUILDING UNITS PLAN NUMBER 100002
(Second Plaintiff)
v
CLOSE CONSTRUCTIONS PTY LTD
  ACN 010 963 407
  (First Defendant)
  and
  PAUL CRUICE ARCHITECT PTY LTD
  ACN 018 188 100
(Second Defendant)
  and
  CYRIL CASWELL
  (Third Defendant)

FILE NO: S478 of 2002

DIVISION: Trial Division

DELIVERED ON: 21 September 2003

DELIVERED AT: Rockhampton

HEARING DATES: 28-29 November 2002, 24-28 March 2003, 16 June 2003, 23 June 2003 and 13-15 August 2003

JUDGE: Dutney J

ORDERS:1.        Judgement for the plaintiffs against the   first, second and third defendants in the sum   of $18,000.00;
2.        Judgement for the first plaintiff against   the first defendant in the further sum of   $51,529.00;
3.        The first defendant to indemnify the   second defendant in respect of the judgement   against the second defendant in the sum of   $3,600.00;
4.        The third defendant to indemnify the   second defendant in respect of the judgement   against the second defendant in the sum of   $7,200.00.

CATCHWORDS: BUILDING AND ENGINEERING CONTRACTS - BREACH – COST OF RECTIFICATION WORKS – where First Plaintiff entered into a design and construct contract with First Defendant – whether breach of implied conditions that the building would be constructed with the skill, care and competence of an ordinary builder and in accordance with good building practice

NEGLIGENCE – STANDARD OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – APPORTIONMENT OF RESPONSIBILITY – where stud frame construction of building converted into a masonry construction – where First, Second and Third Defendants aware of this fact – whether First Defendant’s failure to advise First Plaintiff of consequences of not installing control joints negligent
ARCHITECTS, ENGINEERS AND SURVEYORS – ARCHITECTS – where architect designed a building to suit First Plaintiff’s business – where design was for a stud frame form of construction – where architect became aware a different building material was being used – where architect’s retainer was to achieve council building approval - where First Defendant anticipated drawings with sufficient detail to build from – whether lack of detail on drawings had a causal connection with loss suffered by plaintiff – whether Second Defendant negligent in not seeking modification of engineer’s footing and slab plan to suit new building material
ARCHITECTS, ENGINEERS AND SURVEYORS – ENGINEERS – where engineer produced inter alia a footings and slab design - where engineer became aware a new building material was being used – whether failure to alter design to suit new building material negligent – where engineer certified various parts of the works on the building
Haines v Bendall (1991) 172 CLR 60, followed
Voli v Inglewood Shire Council (1963) 110 CLR 74, followed

COUNSEL:PO Land for the Plaintiff (28-29 November 2002, 24-28 March 2003, 16 June 2003, 23 June 2003
IR Perkins for the Plaintiff (13-15 August 2003)
MB Smith for the First…

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: [2003] QSC 393
Decision Date: 21 September 2003

CaseChat Overview and Summary

The plaintiffs, Brian Geaney Pty Ltd and The Proprietors 102 Denham Street, Building Units Plan Number 100002, filed suit against the defendants, Close Constructions Pty Ltd, Paul Cruice Architect Pty Ltd, and Cyril Caswell, alleging breach of contract and negligence in the construction of a building. The defendants were found liable for various defects in the building, including inadequate lateral support, lack of control joints, and insufficient foundation design. The court held that the defendants breached their contractual and tortious duties by not constructing the building with the required skill, care, and competence, and in accordance with good building practice. The plaintiffs were awarded damages for the cost of rectification works, diminution in value of the building, and disruption to the plaintiffs' business due to the defects. The court also ordered the first defendant to indemnify the second defendant for a portion of the judgment against the second defendant, and the third defendant to indemnify the second defendant for the remaining portion. The final orders included judgments against the defendants for the specified sums, along with the indemnity orders.

Orders