Creeper v Cooper - [2013] SASCFC 78

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
CREEPER & ANOTHER v COOPER & ANOTHER
[2013] SASCFC 78
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)
15 August 2013
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH
DAMAGES - GENERAL PRINCIPLES
The plaintiffs sued the defendants in the District Court for damages for breach of a warranty in a contract for the sale and purchase of land that no building work had been carried out without approval. The Judge found that the defendants breached the warranty. However, he awarded only nominal damages, finding that causation of loss was not established because the plaintiffs had offered the purchase price without obtaining a building inspection report and, on learning of building work undertaken without approval, did not make further enquiries but proceeded with the contract.
The plaintiffs claimed damages of $132,000 based on costs of rectification estimated by a builder called as an expert witness. The defendants called an engineer, who disagreed with some of the opinions of the builder and in re-examination gave an estimate of rectification costs of $13,500. The Judge assessed damages, on the assumption that causation of loss had been established, at $15,000 based on the evidence of the engineer.
The plaintiffs appeal on the grounds that the Judge erred in finding that the breach of warranty caused no loss or damage and against the trial Judge’s assessment of damages.
Held by the Court allowing the appeal:
1.      The Judge erred in finding no causation of loss. The plaintiffs’ conduct before and after entry into the contract identified by the Judge did not negate causation of loss by the breach of warranty. The fact that the plaintiffs did not exercise their cooling off rights did not negate their entitlement to damages (at [12]-[15]).
2.      The Judge erred in his approach to the assessment of damages. He assessed damages on the basis of a global assessment of the credibility of the expert witnesses, rather than making specific findings relevant to and in determination of the issues in dispute (at [22]-[31]).
3.      The Judge erred in his assessment of quantum. He did not address all of the complaints of the plaintiffs and wrongly permitted the defendants’ expert witness to give evidence concerning quantum in re-examination (at [32]-[35]).
4.      Appeal allowed. Judgment of the District Court set aside. Judgment entered for the plaintiffs for damages to be assessed (at [40]).
Terry v Leventeris [2011] SASCFC 26; (2011) 109 SASR 358; Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632, discussed.
Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286; Stubing v Halling [2012] SASCFC 123; (2012) 115 SASR 1, considered.

CREEPER & ANOTHER v COOPER & ANOTHER
[2013] SASCFC 78
Full Court: Gray, Sulan and Blue JJ
THE COURT

The plaintiffs and appellants, Andrew James Creeper and Julie-Ann Baliga, claimed damages…

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 Creeper v Cooper

Details

AGLC: Creeper v Cooper [2013] SASCFC 78
Case: [2013] SASCFC 78
Decision Date: 15 August 2013

CaseChat Overview and Summary

In Creeper v Cooper, the plaintiffs appealed to the Court against a decision of the District Court. The dispute concerned a breach of warranty in a contract, with the plaintiffs claiming damages.

The Court was required to determine whether the primary judge erred in finding no causation of loss by the defendants' breach of warranty, despite the plaintiffs' conduct. It also had to consider whether the primary judge erred in his approach to the assessment of damages, including his assessment of the quantum of loss and the admissibility of certain expert evidence.

The Court found that the primary judge had erred in his findings on causation, holding that the plaintiffs' conduct did not negate the causation of loss by the breach of warranty, nor did their failure to exercise cooling-off rights. Furthermore, the Court determined that the primary judge's approach to assessing damages was flawed, as he made a global assessment of expert credibility rather than specific findings on the disputed issues. The assessment of quantum was also found to be erroneous, with the primary judge failing to address all of the plaintiffs' complaints and improperly admitting expert evidence in re-examination.

Consequently, the Court allowed the appeal, set aside the judgment of the District Court, and entered judgment for the plaintiffs for damages to be assessed. The Court expressed concern about the significant costs incurred by the parties and indicated it would consider mediation and hear submissions on costs.

Orders

Orders of the court

Held by the Court allowing the appeal:

1. The Judge erred in finding no causation of loss. The plaintiffs’ conduct before and after entry into the contract identified by the Judge did not negate causation of loss by the breach of warranty. The fact that the plaintiffs did not exercise their cooling off rights did not negate their entitlement to damages (at [12]-[15]).

2. The Judge erred in his approach to the assessment of damages. He assessed damages on the basis of a global assessment of the credibility of the expert witnesses, rather than making specific findings relevant to and in determination of the issues in dispute (at [22]-[31]).

3. The Judge erred in his assessment of quantum. He did not address all of the complaints of the plaintiffs and wrongly permitted the defendants’ expert witness to give evidence concerning quantum in re-examination (at [32]-[35]).

4. Appeal allowed. Judgment of the District Court set aside. Judgment entered for the plaintiffs for damages to be assessed (at [40]).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Court is gravely concerned about the expenses involved in the proceeding thus far and was informed that each party’s costs were approaching $200,000.00. Apparently, no attempt had been made to mediate a resolution. It is a sad state of affairs when the parties jointly spend more than the value of the entire property when litigating a breach of warranty involving, at most, damages of $120,000.00 Conclusion The appeal is allowed. The orders of the District Court are set aside. In lieu thereof judgment is entered for the plaintiffs for damages to be assessed. We defer consideration of the remittal of the proceeding to assess damages. We will discuss with the parties the question of mediation. We will hear the parties concerning costs.

Ratio Decidendi

Legal Principle Established

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