De Bruin v Harris - [2019] WADC 181

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DE BRUIN -v- HARRIS [2019] WADC 181
CORAM:   STEVENSON DCJ
HEARD:   1-3 OCTOBER & 2-4 & 6 DECEMBER 2019
DELIVERED          :   23 DECEMBER 2019
FILE NO/S:   CIV 3722 of 2017
BETWEEN:   SONYA DE BRUIN
Plaintiff
AND
RICHARD CLIFFORD HARRIS
First Defendant
REZARD PTY LTD
Second Defendant

Catchwords:

Contract - General contractual principles - Formation - Informal contracts - Factual dispute concerning scope of terms - Turns on own facts

Legislation:

Building Services (Registration) Act 2011 (WA)
Building Services (Registration) Regulations 2011 (WA)
Construction Contracts Act 2004 (WA)

Result:

Plaintiff's claim against first defendant dismissed

Representation:

Counsel:

Plaintiff	:	Mr A Metaxas
First Defendant	:	In person
Second Defendant	:	In person

Solicitors:

Plaintiff	:	Metaxas Legal
First Defendant	:	Not applicable
Second Defendant	:	Not applicable

Case(s) referred to in decision(s):

Brambles Holdings v Bathurst City Council [2001] NSWCA 61
Fazio v Fazio [2012] WASCA 72
G Scammell & Nephew Ltd v HC & JG Ouston [1941] AC 251
Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295

STEVENSON DCJ:

Overview

This action is concerned with defective building work (excluding internal fit-out) which the plaintiff (Mrs De Bruin) claims was caused by the second defendant (Rezard) during construction of her prefabricated house in Bridgetown in 2017.
These reasons for decision relate to Mrs De Bruin's claim against the first defendant (Mr Harris). They concern the issue of legal liability only.
Mrs De Bruin claims Mr Harris is liable to her for the cost of making good any proven defective workmanship of Rezard pursuant to a project management agreement, or alternatively a duty of care, on the grounds that Mr Harris would:
(a)cause the house to be constructed with reasonable skill, care and diligence; and
(b)inform Mrs De Bruin if the house was not being constructed with reasonable skill, care and diligence.
Even if Mr Harris (who was not the builder) had assumed a liability of the breadth and scope set out in [3(a)], it is difficult to see in the present case, how he could do anything more, as agent for Mrs De Bruin, than say to her contractor, 'in my opinion you should fix this'. Mr Harris had no contractual rights or 'extra-curial' powers over any delinquent contractor engaged by Mrs De Bruin.
The irony in this case is, if Mr Harris owed such an obligation to Mrs De Bruin, then he would have been required to give the direction to himself because as a director and employee of Rezard he also supervised the works for Rezard. Accordingly, in the circumstances as I have found them to be, Mr Harris would have been required to wear two contradictory hats at the same time to give effect to his various roles.
For the following reasons, I am not persuaded on the balance of probabilities, that Mr Harris owed, or breached, any relevant contractual term or duty of care, arising out of his dealings with Mrs…

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 De Bruin v Harris

Details

AGLC: De Bruin v Harris [2019] WADC 181
Case: [2019] WADC 181
Decision Date: 23 DECEMBER 2019

CaseChat Overview and Summary

In the case of De Bruin v Harris, the parties were involved in a dispute regarding the formation of a contract and the scope of its terms. The matter was heard in the Supreme Court of Western Australia. The dispute centred on whether an enforceable agreement had been reached between the De Bruins and Harris regarding the supply and installation of Dorce components for a home.

The primary legal issue before the court was whether there was a binding contract between the parties. Specifically, the court needed to determine if the email sent by Harris on 25 May 2016 constituted an offer that was accepted by the De Bruins, thereby forming a contract. The court also had to consider whether there were any terms implied into the agreement by conduct or representation.

The court examined the email in question and noted that it contained a proposal from Harris to the De Bruins, setting out various terms and conditions for the supply and installation of Dorce components. The court held that the email constituted an offer, and it found that the De Bruins' payment of the deposit on 16 May 2016, despite being aware of Harris' interest in Rezard, amounted to an acceptance of the offer. The court further found that the parties had reached an agreement regarding the Dorce components, despite the De Bruins' subsequent decision to enter into an agreement with Rezard. The court concluded that the email was an enforceable contract, as it contained all the essential terms required for a binding agreement.

The court ordered that the terms of the email dated 25 May 2016 constituted a binding contract between the parties. The court found that Harris was entitled to enforce the agreement against the De Bruins, and the De Bruins were bound by the terms set out in the email.

Orders

Orders of the court

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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

Mr and Mrs De Bruin's concern was the subject of a telephone communication before Mr Harris wrote under the heading 'Rezard and Dorce' to Mr De Bruin (they had engaged in direct written communications before the cafe meeting too) and Mrs De Bruin on 25 May 2016. The email provided:Hi Kevin and SonyaThanks for you call and raising your concern that the Dorce supply is being handled by Rezard and the potential for conflict of interest for me given that I have a financial interest in Rezard. Please let me explain …Rezard is the Australian agent for Dorce and I have dealt with Dorce in the past on commercial type projects, in the initial stages of looking at your project I did not think the Dorce product would be suitable and so I was looking at alternative methods and materials such as SIPS, Tecta, Ecosystems etc. The costs of these systems was not going to meet the budget however.When I realised that it would be possible to modify the design so that it was more compatible with the Dorce systems this option became viable. In retrospect I should have discussed my interest in Rezard as soon as the Dorce option was under consideration and for that omission I am sorry.I do believe however that it is your best interest to deal with Rezard rather than Dorce direct for the following reasons:•This is a supply and install arrangement so any issues with supply (i.e. missing parts, damage in transit) or installation (parts not fitting etc) will be the responsibility of a single entity subject to the usual consumer protection laws of WA.•Rezard accepts the exchange rate risk.•Rezard will manage and pay for all transport costs (door to door), import charges, duty and insurance.•Rezard will produce the documentation and arrange certification (engineering etc) for the building license.My original proposal to you was for a fee of $15,000 but in the circumstances I will not charge the remaining fee.The time frame for the installation at this stage is for early September and we expect the structure to be complete in two weeks.RegardsRichard Harris(emphasis added) Notwithstanding whatever was agreed between the parties as a result of Mrs De Bruin's decision to choose the Dorce option and to enter into an agreement with Rezard for the supply and installation of the component home as an owner-builder, the tax invoice for the deposit dated 16 May 2016 was paid with her agreement. In examination-in-chief Mrs De Bruin said that the communication by Mr Harris on 16 May 2016 was the first time that she became aware in her discussions with Mr Harris that he had an interest in the company (Rezard) which was proposed to supply the Dorce components. Also in examination-in-chief Mrs De Bruin said that the two week installation period for the Dorce components referred to in Mr Harris' email of 25 May 2016 was of interest because she was still concerned about having the home completed in time for her rehabilitation following surgery. Her evidence was that she did not ever discuss any of the issues in the 25 May 2016 email with Mr Harris.