Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: C & E Critharis Constructions Pty Ltd v Cubic Metre Pty Ltd [2020] NSWCA 348 Hearing dates: 14 December 2020 Date of orders: 22 December 2020 Decision date: 22 December 2020 Before: Macfarlan JA; McCallum JA Decision: (1) Dismiss the Notice of Appeal on the ground that it is incompetent.
(2) Dismiss the application for leave to appeal.
(3) Order the applicant to pay the respondent’s costs of the application for leave to appeal and the appeal.
Catchwords: APPEALS – leave to appeal – whether leave required – monetary threshold of $100,000 under s 101(2)(r) Supreme Court Act – amount in issue $99,999 – strictly no right of appeal – closeness of sum in issue to the threshold relevant to discretion to grant leave
CONTRACTS – remedies – damages – sub-contractor breached contract with builder by supplying and installing materials unfit for purpose – builder paid in full by proprietors and no prospect of it rectifying work – builder not exposed to risk of liability to proprietors – builder did not prove that it suffered loss
Legislation Cited: Supreme Court Act 1970 (NSW)
Cases Cited: Alucraft Pty Ltd (in liq) v Grocon Ltd (No 2) [1996] 2 VR 386
Jones v Stroud District Council [1988] 1 All ER 5
Westpoint Management Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253
Category: Principal judgment Parties: C & E Critharis Constructions Pty Ltd (Applicant)
Cubic Metre Pty Ltd (Respondent)Representation: Counsel:
Solicitors:
R K Weaver (Applicant)
B Webster (Respondent)
Konstan Lawyers (Applicant)
Just Dispute Resolution (Respondent)
File Number(s): 2020/159548; 2020/284172 Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Common Law
- Citation:
- Date of Decision:
- 1 May 2020
- Before:
- Adamson J
- File Number(s):
- 2019/235538
Judgment
-
THE COURT: This is an application for leave to appeal from a judgment of Adamson J of 1 May 2020 ([2020] NSWSC 479) in which her Honour allowed an appeal from a decision of Magistrate E Kennedy of the Local Court dated 4 June 2019.
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The issue sought to be raised on appeal to this Court is whether C & E Critharis Constructions Pty Ltd (“the Builder”) proved that it suffered loss by reason of a breach of contract by the respondent, Cubic Metre Pty Ltd (“the Sub-Contractor”). The Builder contracted to do work at a property in Watsons Bay for the owners, including repairs on a seawall on the property. The Builder in turn sub-contracted the supply and installation of sandstone cladding for the seawall to the Sub-Contractor. The sandstone supplied by the Sub-Contractor in 2011 was however found by Kennedy LCM to be unfit for its purpose, rendering the Sub-Contractor in breach of a warranty given to the Builder.
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Adamson J noted that in 2012 the owner observed that the stone in the seawall was deteriorating. Although the Builder notified the Sub-Contractor that that was the case, nothing was done over the following years to…
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- Case
- [2020] NSWCA 348
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether leave to appeal was required, given that the amount in issue was $99,999, which was just below the $100,000 monetary threshold stipulated in section 101(2)(r) of the *Supreme Court Act 1970* (NSW) for a strict right of appeal, and whether the builder had suffered any loss as a result of the sub-contractor's breach of contract. The builder had supplied and installed materials that were unfit for purpose, but the proprietors had paid the builder in full and had no intention of rectifying the work.
The Court of Appeal determined that leave to appeal was indeed required because the amount in issue was less than the statutory threshold. While the closeness of the sum to the threshold was a factor the court considered in its discretion, it ultimately found that the builder had not demonstrated any loss. The court reasoned that because the builder had been paid in full by the proprietors and there was no prospect of the builder being required to rectify the defective work, the builder had not suffered any damage flowing from the sub-contractor's breach. The legal principle applied was that a party seeking damages for breach of contract must prove they have suffered a loss.
Consequently, the Court of Appeal dismissed the builder's Notice of Appeal as incompetent and refused the application for leave to appeal. The applicant was ordered to pay the respondent's costs of both the application for leave to appeal and the appeal itself.
Orders
Orders of the court
(1) Dismiss the Notice of Appeal on the ground that it is incompetent.
(2) Dismiss the application for leave to appeal.
(3) Order the applicant to pay the respondent’s costs of the application for leave to appeal and the appeal.
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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