DOEPEL & ASSOCIATES ARCHITECTS PTY LTD -v- HODGKINSON [2008] WASCA 262

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 262
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:14/2007	Heard:	7 AUGUST 2008
Coram:	MARTIN CJ McLURE JA LE MIERE AJA	Delivered:	14/12/08
No of pages:	39	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	DOEPEL & ASSOCIATES ARCHITECTS PTY LTD (ACN 069 628 440) EDWARD WILLIAM HODGKINSON
Catchwords:	Negligence Negligent misrepresentation Misleading or deceptive conduct Estimate of building costs Scope of the representation Reasonableness of the representation Causation Turns on own facts
Legislation:	Fair Trading Act 1987 (WA), s 10(1) Trade Practices Act 1974 (Cth), s 52(1)
Case References:	Bill Acceptance Corporation Ltd v GWA Ltd (1983) 78 FLR 171 Browne v Dunn (1893) 6 R 67 HL Gates v The City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 Havyn Pty Ltd v Webster [2005] NSWCA 182 J & J C Abrams Ltd v Ancliffe [1978] 2 NZLR 420 McBratney v Boston (Unreported, FCt of WA, Library No 940567, 14 October 1994); (1994) ATPR 41-355 Warwick Entertainment Centre Pty Ltd v Alpine Holdings Pty Ltd [2005] WASCA 174

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DOEPEL & ASSOCIATES ARCHITECTS PTY LTD -v- HODGKINSON [2008] WASCA 262 CORAM : MARTIN CJ

McLURE JA

LE MIERE AJA

HEARD : 7 AUGUST 2008 DELIVERED : 15 DECEMBER 2008 FILE NO/S : CACV 14 of 2007 BETWEEN : DOEPEL & ASSOCIATES ARCHITECTS PTY LTD (ACN 069 628 440)

Appellant

AND

EDWARD WILLIAM HODGKINSON

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : SIMMONDS J

Citation : HODGKINSON -v- DOEPEL & ASSOCIATES ARCHITECTS PTY LTD [2006] WASC 237

File No : CIV 2698 of 2001

(Page 2)

Catchwords:

Negligence - Negligent misrepresentation - Misleading or deceptive conduct - Estimate of building costs - Scope of the representation - Reasonableness of the representation - Causation - Turns on own facts

Legislation:

Fair Trading Act 1987 (WA), s 10(1)

Trade Practices Act 1974 (Cth), s 52(1)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr P G McGowan

Respondent : Mr G R Donaldson SC & Mr J D Finlay

Solicitors:

Appellant : DLA Phillips Fox

Respondent : J D Finlay & Co

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

Bill Acceptance Corporation Ltd v GWA Ltd (1983) 78 FLR 171
Browne v Dunn (1893) 6 R 67 HL
Gates v The City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
Havyn Pty Ltd v Webster [2005] NSWCA 182
J & J C Abrams Ltd v Ancliffe [1978] 2 NZLR 420
McBratney v Boston (Unreported, FCt of WA, Library No 940567, 14 October 1994); (1994) ATPR 41-355
Warwick Entertainment Centre Pty Ltd v Alpine Holdings Pty Ltd [2005] WASCA 174

(Page 3)

MARTIN CJ

Factual context

1 The factual context in which this appeal arises has been set out…

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

Case: [2008] WASCA 262
Decision Date: 15 DECEMBER 2008

CaseChat Overview and Summary

Doepel & Associates Architects Pty Ltd, trading as Doepel & Associates, commenced proceedings against Hodgkinson, the original owner of a parcel of land. The plaintiff sought damages for alleged negligent misrepresentation and misleading or deceptive conduct in relation to an estimate provided regarding the building costs of a residential home. The trial judge found in favour of the defendant, and the plaintiff appealed to the Supreme Court of Queensland. The appeal was dismissed.

The primary legal issues before the court were whether the plaintiff's estimate constituted a representation within the scope of the contractual relationship between the parties, and if so, whether the defendant suffered a loss caused by the alleged negligent misrepresentation. The plaintiff argued that the estimate provided was within the scope of the representation, and that the defendant's reliance on the estimate was reasonable and foreseeable. The defendant contended that the estimate was not a representation within the scope of the contractual relationship, and that the plaintiff's reliance on the estimate was not reasonable or foreseeable.

The court found that the estimate provided by the plaintiff was not a representation within the scope of the contractual relationship between the parties. The court held that the estimate was not an integral part of the contractual relationship, and that the defendant was not entitled to rely on it. The court also found that the plaintiff's reliance on the estimate was not reasonable or foreseeable, and that the defendant had not suffered a loss as a result of the alleged negligent misrepresentation. The court held that the defendant's decision to proceed with the construction of the residential home was not influenced by the estimate provided by the plaintiff, and that the defendant had not suffered any financial loss as a result of the alleged negligent misrepresentation.

In light of the above, the court dismissed the appeal and affirmed the decision of the trial judge. The plaintiff's appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed

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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