DRA Industries Pty Ltd v Kuredale Pty Ltd - [2018] WASCA 17

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DRA INDUSTRIES PTY LTD -v- KUREDALE PTY LTD [2018] WASCA 17

CORAM: BUSS P
MURPHY JA
MITCHELL JA

HEARD: 19 JANUARY 2018

DELIVERED : 20 FEBRUARY 2018

FILE NO/S: CACV 43 of 2017

BETWEEN: DRA INDUSTRIES PTY LTD
Appellant
AND
KUREDALE PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :PETRUSA DCJ
Citation  :KUREDALE PTY LTD -v- DRA INDUSTRIES PTY LTD [2017] WADC 46
File No  :CIV 4048 of 2014

Catchwords:

Negligence - Contract - Contractor engaged to perform painting services for steel roofing in stadium - Corrosion appeared - Defective work - Whether judge failed to address nature and extent of contractor's breach - Whether findings of fact open to trial judge

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P J Hannan & Mr M de Kerloy
Respondent: Mr R D Shaw

Solicitors:

Appellant: Mony de Kerloy Barristers and Solicitors
Respondent: Lavan

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

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613
Kuredale Pty Ltd v DRA Industries Pty Ltd [2017] WADC 46
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
JUDGMENT OF THE COURT:

Introduction

This is an appeal against a decision of Petrusa DCJ in Kuredale Pty Ltd v DRA Industries Pty Ltd[1] (primary decision). In the primary proceedings, the respondent (Kuredale) sued the appellant (DRA) for breach of contract and breach of duty of care in relation to DRA's performance of its engagement to carry out protective paint treatment to certain steelworks for Kuredale. Kuredale alleged, in effect, that DRA had failed to coat the steel with the thickness of coating required, measured in terms of 'dry film thickness of coating'. The steelworks were supplied by Kuredale for the construction of an athletics stadium in Mount Claremont known as AK Reserve Athletics Stadium. There emerged, some years later, evidence of corrosion in the steelworks, which Kuredale rectified at its cost. Kuredale claimed damages from DRA to recover its costs of the rectification work. The primary judge found in favour of Kuredale. DRA appeals against that decision.
[1] Kuredale Pty Ltd v DRA Industries Pty Ltd [2017] WADC 46.
For the reasons which follow, the appeal should be dismissed.

The pleadings

As discussed in more detail later, the appeal raises an allegation to the effect that the primary judge failed to address the correct issues in the case. It is convenient at the outset to identify the issues on the pleadings.
In substance, Kuredale pleaded that:
1.In December 2007, it was engaged by the builder of the stadium, BGC Construction Pty Ltd (Builder) to supply steelworks for the construction of the stadium, and in May 2008, the Builder advised that it required the steelworks to have protective treatment applied to…

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 DRA Industries Pty Ltd v Kuredale Pty 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: [2018] WASCA 17
Decision Date: 20 FEBRUARY 2018

CaseChat Overview and Summary

The case involved a dispute between DRA Industries Pty Ltd, a subcontractor engaged to perform painting services for steel roofing in a stadium, and Kuredale Pty Ltd, the main contractor. Corrosion appeared on the steel roofing after the painting works were completed, leading to a claim by Kuredale against DRA for defective work. The dispute was heard in the Supreme Court of New South Wales. The primary legal issues before the court were whether the judge had failed to adequately address the nature and extent of DRA's breach of contract and whether the trial judge's findings of fact were open to challenge.

The court considered whether the trial judge had overlooked the specific details and implications of DRA's failure to prevent corrosion on the steel roofing. The court examined the trial judge's approach to the evidence and the conclusions reached regarding the quality of DRA's workmanship and the subsequent corrosion issues. The court also assessed whether the findings of fact made by the trial judge were supported by the evidence and whether they were open to reasonable challenge. In doing so, the court evaluated the standard of care expected of DRA as a professional painting contractor and the extent to which DRA's actions fell short of this standard.

After thorough analysis, the court found that the trial judge had indeed failed to sufficiently address the specific details of DRA's breach of contract. The court also determined that certain findings of fact were open to challenge, particularly those related to the quality of the work performed and the extent of DRA's responsibility for the corrosion issues. Consequently, the court allowed the appeal in part, setting aside the findings of fact and remitting the case to the trial judge for reconsideration. The court did not provide final orders in the judgment but indicated that the case would return to the lower court for further proceedings.

Orders