Chapman v. Taylor & Ors; Vero Insurance Ltd. v. Taylor & Ors. [2004] NSWCA 456
HEARING DATE(S):
15 November 2004
JUDGMENT DATE:
13 December 2004
JUDGMENT OF:
Beazley JA at 1; Hodgson JA at 2; Tobias JA at 47
DECISION:
CA40120/04: 1. Appeal allowed 2. Mr. and Mrs. Taylor to pay Mr. Chapman's costs of the appeal, and to have a certificate under the Suitors Fund Act if otherwise eligible. 3. Order of Master set aside, and in lieu thereof order that the summons be dismissed with costs; CA41106/03: 1. Leave to appeal granted. 2. Notice of Appeal to be filed within 7 days. 3. Appeal allowed.
CATCHWORDS:
CONTRACTS - Building and construction - Frustration of contract - Builder suffers brain injury which causes him to be in a coma for 5 weeks and unable to undertake or supervise work for about 5 months - Whether contract frustrated - Whether error of law by CTTT - Whether home building insurance applies - Inadequacy in provisions of Home Building Act.
David Neil Chapman - appellant Ernest & Fredericka Taylor - 1st respondents Vero Insurance Ltd. - 2nd respondent Consumer, Trader & Tenancy Tribunal - 3rd respondent
FILE NUMBER(S):
CA 40120/04; 41106/03
COUNSEL:
Dr. J. Azzi for 1st appellant Mr. M.S. Jacobs QC with Mr. P.J. Bambagiotti for 2nd appellant Mr. S.R. Donaldson SC with Mr. Carolan for respondents
SOLICITORS:
Herbert Weller, Windsor for appellant G.P. Bartels, Eastwood for 1st respondent McLachlan Chilton, Sydney for 2nd respondent Robert Ellis, Crown Solicitor's Office, Sydney for 3rd respondent
LOWER COURTJURISDICTION:
Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):
SC 12971/02
LOWER COURT JUDICIAL OFFICER :
Master Harrison
CA 40120/04 CA 41106/03 SC 12971/02 CTTT No.HB 00/83497
BEAZLEY JA HODGSON JA TOBIAS JA
Monday 13 December 2004
CHAPMAN V. TAYLOR & ORS.
VERO INSURANCE LTD. (formerly ROYAL & SUN ALLIANCE INSURANCE AUSTRALIA LIMITED) V. TAYLOR & ORS.
Judgment
1 BEAZLEY JA: I agree with Hodgson JA.
2 HODGSON JA: On 4 November 2003, Master Harrison gave a decision in proceedings in which building owners Mr. and Mrs. Taylor appealed to the Supreme Court against a decision of Senior Member Mr. G.J. Durie in the Consumer Trader & Tenancy Tribunal (CTTT),…
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
AGLC
Chapman v Taylor [2004] NSWCA 456
Case
[2004] NSWCA 456
Decision Date
CaseChat Overview and Summary
The parties to the appeal were Chapman (the builder) and Taylor (the homeowners). The dispute concerned whether a building contract had been frustrated due to the builder suffering a severe brain injury. The matter came before the Court of Appeal of New South Wales.
The primary legal issue before the court was whether the building contract was frustrated by the builder's incapacitation. This involved considering the duration and nature of the builder's inability to perform his contractual obligations and whether this rendered the contract fundamentally different from what was originally agreed. The court also considered whether there was an error of law by the Consumer, Trader and Tenancy Tribunal (CTTT) and the applicability of home building insurance.
The Court of Appeal found that the builder's incapacitation did not frustrate the contract. The court reasoned that the builder's inability to work was temporary, and the contract did not specify a fixed completion date, nor was time of the essence. Therefore, the delay caused by the injury did not fundamentally alter the nature of the contract. The court also found that the CTTT had erred in law by finding the contract frustrated.
The Court of Appeal allowed the appeal, setting aside the previous order and dismissing the summons with costs. Mr. and Mrs. Taylor were ordered to pay Mr. Chapman's costs of the appeal.
Orders
Orders of the court
CA40120/04: 1. Appeal allowed 2. Mr. and Mrs. Taylor to pay Mr. Chapman's costs of the appeal, and to have a certificate under the Suitors Fund Act if otherwise eligible. 3. Order of Master set aside, and in lieu thereof order that the summons be dismissed with costs; CA41106/03: 1. Leave to appeal granted. 2. Notice of Appeal to be filed within 7 days. 3. Appeal allowed.