Brown & Brown v Unique Building Pty Ltd - [2009] SADC 13

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BROWN & BROWN v UNIQUE BUILDING PTY LTD
[2009] SADC 13
Judgment of Her Honour Judge McIntyre
19 February 2009
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT - DAMAGES
The parties entered into contracts by which the defendant was to construct four townhouses for the plaintiffs - The plaintiffs say that the defendant was in breach of contract or of statutory warranties in that it failed to perform the work in a proper manner and in accordance with the specifications resulting in a number of defects - The defendant denies that it was in breach of either statutory warranties or the contracts - It further says that the plaintiffs are not entitled to maintain this action in view of the dispute resolution processes in the contracts - The defendant says that the plaintiffs are in breach of contract for failing to pay for work performed and counterclaims for unpaid progress payments.
Held - The plaintiffs are entitled to maintain this action notwithstanding the dispute resolution procedures in the contracts - The defendant is in breach of the contracts in that the work performed was defective and the plaintiffs are therefore entitled to damages - The proper measure of damages is the cost of demolition and rebuilding together with the additional cost to complete the works in accordance with the contracts as at November 2002 - The defendant is entitled to judgement on the counterclaim for the unpaid progress claim number 3.
Building Work Contractors Act 1995 , referred to.
Ipoh v TPS Property No 2 [2004] NSWSC at 289; James McEwan & Co Pty Ltd v Dilettante Pty Ltd (1992) 163 LSJS 162; Federal Commerce & Navigation Co Ltd v Molena Alpha Incorporated (1979) AC 757 at 779; Bellgrove v Eldrige (1954) 90 CLR 613; Wenham v Ella (1972) 127 CLR 454 at 473; Haines v Bendall (1991) 172 CLR 60; Carosella v Ginos & Gilbert Pty Ltd High Court (1982) 47 ALR 761 and SASC (1981) 27 SASR 515; DeCesare v Deluxe Motors Pty Ltd (1996) 67 SASR 28, considered.

BROWN & BROWN v UNIQUE BUILDING PTY LTD
[2009] SADC 13
Introduction

This building dispute arises out of a contract to build four town houses at Tam O’Shanter Place, Adelaide.
The plaintiffs and their sister Rosalind May Brown entered into three separate lump sum contracts with the defendant on 21 December 2001 (“the contracts”). The defendant was to construct four, three storey town houses upon property owned by the plaintiffs at Tam O’Shanter Place. The site was handed over to the defendant on or about 14 January 2002 and site work commenced on or about 2 February 2002. The slab was installed in April 2002. The defendant delivered its first progress claim on 23 May 2002. The parties entered into a dispute over the first progress claim. The matter escalated from that point.
The plaintiffs bring the action in…

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 Brown & Brown v Unique Building Pty Ltd

Details

AGLC: Brown & Brown v Unique Building Pty Ltd [2009] SADC 13
Case: [2009] SADC 13
Decision Date: 19 February 2009

CaseChat Overview and Summary

Brown & Brown engaged Unique Building Pty Ltd to construct four townhouses. The plaintiffs claim the defendant breached the contract or statutory warranties by performing the work improperly, resulting in defects. The defendant denies any breach and argues that the plaintiffs cannot maintain the action due to the contracts' dispute resolution processes. The defendant also counterclaims that the plaintiffs are in breach for not paying for the work and seeks judgement on an unpaid progress payment.

The court determined that the plaintiffs could proceed with the action despite the contracts' dispute resolution procedures. The court found the defendant in breach for performing defective work, entitling the plaintiffs to damages. The appropriate measure of damages was determined to be the cost of demolition and rebuilding, plus the additional cost to complete the works as per the contracts by November 2002. The court ruled in favour of the defendant on the counterclaim, granting judgement for the unpaid progress payment number 3.

The court's reasoning hinged on the breach of contractual obligations and the statutory warranties related to the quality of construction work. The plaintiffs' right to maintain the action was upheld despite the contracts' dispute resolution clauses, allowing the matter to proceed in court. The measure of damages was set by considering the cost implications of rectifying the defects, ensuring that the plaintiffs were compensated fairly for the substandard work. The defendant's counterclaim for unpaid progress payments was also addressed, with the court ordering judgement in their favour for the specified progress claim.

Orders