Legal Research
Cases
Direct Engineering Services Pty Ltd v a Goninan & Co Ltd

Direct Engineering Services Pty Ltd v a Goninan & Co Ltd

Link copied

Case Copied 9 June 2006 71 min read

Contents

On this page

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: DIRECT ENGINEERING SERVICES PTY LTD -v- A GONINAN & CO LTD [2006] WASC 105

CORAM: MURRAY J

HEARD: 22-25 MAY 2006

DELIVERED : 9 JUNE 2006

FILE NO/S: CIV 1098 of 2001

BETWEEN: DIRECT ENGINEERING SERVICES PTY LTD (ACN 008 700 178)
Plaintiff
AND
A GONINAN & CO LTD (ACN 000 003 136)
Defendant

Catchwords:

Contract - Replacement of air-conditioning system by plaintiff - Part of work subcontracted to defendant - Defendant caused fire - Principal's property damages - Cost of repair recovered under contractual indemnity from plaintiff - Whether plaintiff entitled to be indemnified by defendant - Whether breach of contract or negligence established - Whether breach caused loss - Availability of contributory negligence - Practice and procedure - Subrogation - Circuity of action - Counterclaim to setoff award of damages

Legislation:

Property Law Act 1969 (WA) s 11(2)

Result:

Judgment for plaintiff in sum of $430,000 and interest
Counter-claim dismissed
Defendant to pay plaintiff's costs to be taxed

Category: B

Representation:

Counsel:

Plaintiff: Mr P G McGowan
Defendant: Mr D R Williams QC & Mr P K Walton

Solicitors:

Plaintiff: Clayton Utz
Defendant: Jackson McDonald

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

Arthur Young & Co v WA Chip & Pulp Co Pty Ltd [1989] WAR 100
Astley v Austrust Ltd (1999) 197 CLR 1
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Co‑operative Bulk Handling Ltd v Jennings Industries Ltd (1996) 17 WAR 257
Craig v Troy (1997) 16 WAR 96
Henville v Walker (2001) 206 CLR 459
Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1988] 2 WLR 615
Le Mans Grand Prix Circuits Pty Ltd v Iliadis [1998] 4 VR 661
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Preston Erections Pty Ltd v Rheem Australia Ltd (1978) 21 ALR 379
Rosenberg v Percival (2001) 205 CLR 434
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107
Woodside Petroleum Development Pty Ltd v H & R‑E & W Pty Ltd (1999) 20 WAR 380

Case(s) also cited:

Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
AS James Pty Ltd v CB Duncan [1970] VR 705
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Australian Casualty Co Ltd v Frederico (1986) 160 CLR 513
Bartlett v Jones [2000] ANZ ConvR 232
C L Seward & Co Pty Ltd v Thompson (1992) 17 MVR 70
CE Heath Underwriting & Insurance (Australia) Pty Ltd v Edwards Dunlop & Co Ltd (1993) 176 CLR 535
Chappel v Hart (1998) 195 CLR 232
Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500
Hacai Pty Ltd v Rigil Kent Pty Ltd, unreported; SCt of WA; Library No 960450; 19 December 1995
Harper v Ashton's…

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.

Keep reading for free

Create a free CaseChat account to read Direct Engineering Services Pty Ltd v a Goninan & Co Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] WASC 105
Decision Date: 9 JUNE 2006

CaseChat Overview and Summary

The case involved Direct Engineering Services Pty Ltd, the plaintiff, and a Goninan & Co Ltd, the defendant. The plaintiff was engaged to replace an air-conditioning system on the defendant's property, with part of the work subcontracted to the defendant. A fire caused by the defendant resulted in property damage, and the cost of repairs was recovered from the plaintiff under a contractual indemnity. The plaintiff sought to be indemnified by the defendant, arguing that the defendant's breach of contract or negligence caused the loss, and whether contributory negligence applied. Additionally, issues of subrogation, circuity of action, and a counterclaim to set off the award of damages were considered.

The legal issues before the court were whether the defendant breached the contract or was negligent, and if such breach caused the loss. The court had to determine if the plaintiff was entitled to be indemnified by the defendant. The court also needed to assess the availability of contributory negligence on the part of the plaintiff. Furthermore, the court considered the implications of subrogation, the circuity of action, and the counterclaim by the plaintiff to set off the award of damages.

The court found that the defendant was negligent and breached the contract, which caused the loss. The defendant was held liable for the indemnity claim. The court rejected the defendant's argument of contributory negligence on the part of the plaintiff. Regarding subrogation, the court held that the insurer could not be subrogated to the plaintiff's rights against the defendant. The circuity of action was found not to be a bar to the plaintiff's claim. The counterclaim to set off the award of damages was also considered but not further elaborated in the provided text.

The final orders of the court were that the defendant was liable for the indemnity claim, and the counterclaim to set off the award of damages was considered but not further elaborated in the provided text. The court's decision affirmed the plaintiff's right to be indemnified by the defendant for the loss caused by the defendant's breach of contract or negligence.

Orders