Drexel London (a firm) v Gove (Blackman) - [2009] WASCA 181

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DREXEL LONDON (a firm) -v- GOVE (BLACKMAN) [2009] WASCA 181

CORAM: McLURE JA
LE MIERE J
KENNETH MARTIN J

HEARD: 6-8 MAY 2009

DELIVERED : 21 OCTOBER 2009

FILE NO/S: CACV 16 of 2007

BETWEEN: DREXEL LONDON (a firm)
Appellant
AND
SHARON LEE GOVE (BLACKMAN)
First Respondent
BARNABY PIERRE COLIN WOOD
Second Respondent
PAUL CHARLES BLACKMAN
Third Respondent
KYLE THEODORE PETERS
Fourth Respondent
MICHAEL ANTONY KUBA
Fifth Respondent
SHELLEY MERRILYN GOLLAN
Sixth Respondent
MARYANNE FIORE
Seventh Respondent
MIA LEE FARINOSI
Eighth Respondent
TINA ELIZABETH D'CASTRO (ACKERMAN)
Ninth Respondent
JULIETTE CHLOE VIRGINIE WOOD
Tenth Respondent
IAN ROBERT MICHEL REGNARD
Twelfth Respondent
DANNIELLE DORISSE ELIZABETH BECKWITH
Thirteenth Respondent
NIGEL KENNETH GILES
Fourteenth Respondent
NEIL ALEXANDER GRANT
Fifteenth Respondent
ROBYN LESLEY DREXEL
Sixteenth Respondent
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Seventeenth Respondent
HALPERN GLICK PTY LTD (ACN 008 729 204)
Eighteenth Respondent

FILE NO/S :CACV 20 of 2007

BETWEEN :CITY OF FREMANTLE
Appellant
AND
SHARON LEE GOVE (BLACKMAN)
First Respondent
BARNABY PIERRE COLIN WOOD
Second Respondent
PAUL CHARLES BLACKMAN
Third Respondent
KYLE THEODORE PETERS
Fourth Respondent
MICHAEL ANTONY KUBA
Fifth Respondent
SHELLEY MERRILYN GOLLAN
Sixth Respondent
MARYANNE FIORE
Seventh Respondent
MIA LEE FARINOSI
Eighth Respondent
TINA ELIZABETH D'CASTRO (ACKERMAN)
Ninth Respondent
JULIETTE CHLOE VIRGINIE WOOD
Tenth Respondent
DEAN DAVID HOLM GRAHAM
Eleventh Respondent
IAN ROBERT MICHEL REGNARD
Twelfth Respondent
DANNIELLE DORISSE ELIZABETH BECKWITH
Thirteenth Respondent
NIGEL KENNETH GILES
Fourteenth Respondent
NEIL ALEXANDER GRANT
Fifteenth Respondent
ROBYN LESLEY DREXEL
Sixteenth Respondent
MARC DREXEL
Seventeenth Respondent
DREXEL LONDON (a firm)
Eighteenth Respondent

FILE NO/S :CACV 114 of 2007

BETWEEN :SHARON LEE GOVE (BLACKMAN)
First Appellant
BARNABY PIERRE COLIN WOOD
Second Appellant
PAUL CHARLES BLACKMAN
Third Appellant
KYLE THEODORE PETERS
Fourth Appellant
MICHAEL ANTONY KUBA
Fifth Appellant
SHELLEY MERRILYN GOLLAN
Sixth Appellant
MARYANNE FIORE
Seventh Appellant
MIA LEE FARINOSI
Eighth Appellant
TINA ELIZABETH D'CASTRO (ACKERMAN)
Ninth Appellant
JULIETTE CHLOE VIRGINIE WOOD
Tenth Appellant
DEAN DAVID HOLM GRAHAM
Eleventh Appellant
IAN ROBERT MICHEL REGNARD
Twelfth Appellant
DANNIELLE DORISSE ELIZABETH BECKWITH
Thirteenth Appellant
NIGEL KENNETH GILES
Fourteenth Appellant
NEIL ALEXANDER GRANT
Fifteenth Appellant
MARC DREXEL
Sixteenth Appellant
ROBYN LESLEY DREXEL
Seventeenth Appellant
AND
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
First Respondent
RICHARD ASH BLACK
Second Respondent
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Third Respondent
DREXEL LONDON (A FIRM)
Fourth Respondent
CITY OF FREMANTLE
Fifth Respondent
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :TEMPLEMAN J
Citation  :GOVE -v- BLACK & ORS [2006] WASC 298
File No  :CIV 2375 of 1997, CIV 2370 of 1997, CIV 2371 of 1997, CIV 2373 of 1997, CIV 2374 of 1997, CIV 2376 of 1997, CIV 2377 of 1997, CIV 2378 of 1997, CIV 2381 of 1997, CIV 2382 of 1997, CIV 2398 of 1997, CIV 2411 of 1997, CIV 2412 of 1997, CIV 2413 of 1997, CIV 2414 of 1997, CIV 2415 of 1997, CIV 1202 of 1998

Catchwords:

Torts - Negligence - Balcony collapse - Lack of redundancy in structural design - Substitution of oregon for jarrah - Failure to eliminate or reduce moisture traps

Liability of engineer - Whether structural information incorporated in design of balconies obtained from engineer - Whether engineer assumed responsibility for structural design - Failure to identify deficiencies

Liability of architect - Whether architect shared responsibility for structural design - Whether architect observed or should have observed substitution of oregon for jarrah - Whether failure to notify builder of substitution causative - Whether risk of structurally significant wood rot due to moisture traps reasonably foreseeable - Whether reasonable to eliminate or materially reduce risk - Causation

Liability of strata company - s 35(1)(c) Strata Titles Act 1985(WA) - Statutory duty to keep in good and serviceable repair and properly maintain common property - Scope and purpose of statute - Whether duty is strict - Whether breach of duty gives private right to damages - To whom duty is owed

Liability of local council - Statutory requirement to inspect building and certify consistency with building plans and specifications - Limited inspection of building - Failure to identify substitution of oregon for jarrah - Whether common law duty of care owed to visitors of building - Breach - Causation - Apportionment of damages

Costs - Sanderson and Bullock orders

Legislation:

Conveyancing (Strata Titles) Act 1961 (NSW), s 4(3), s 20(2)
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 7(2)
Local Government Act 1919 (NSW), s 317A
Local Government Act 1960 (WA), s 374, s 401
Strata Schemes Management Act 1996 (NSW), s 62
Strata Titles Act 1966 (WA), s 4, s 5(6), s 13(4)(b), s 13(4)(h), s 20
Strata Titles Act 1983 (WA), s 68
Strata Titles Act 1985 (WA), s 17(1), s 32, s 35(1), s 36(1), s 39(1), s 54(1a)(b), s 83(1), s 102, s 122(1)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)(b)

Result:

CACV 16 of 2007

Grounds 2, 3 and 6 upheld; grounds 1, 4 and 5 dismissed
Injured claimants' notice of contention upheld
Strata Company's notice of contention upheld
Halpern Glick's notice of contention dismissed
Appeal allowed in part

CACV 20 of 2007

Grounds 1 and 4 upheld; grounds 2 and 3 dismissed
Appeal allowed

CACV 114 of 20-07

Grounds 2 and 4 upheld; grounds 1 and 3 dismissed
Strata Company's notice of contention upheld
Halpern Glick's notice of contention dismissed
Halpern Glick's cross-appeal allowed
Appeal allowed in part

Category: A

Representation:

CACV 16 of 2007

Counsel:

Appellant:     Mr B W Walker QC & Mr P Mendelow
First Respondent           :     Mr A S Bell SC & Mr J G Staude
Second Respondent       :     Mr A S Bell SC & Mr J G Staude
Third Respondent         :     Mr A S Bell SC & Mr J G Staude
Fourth Respondent        :     Mr A S Bell SC & Mr J G Staude
Fifth Respondent          :     Mr A S Bell SC & Mr J G Staude
Sixth Respondent          :     Mr A S Bell SC & Mr J G Staude
Seventh Respondent      :     Mr A S Bell SC & Mr J G Staude
Eighth Respondent        :     Mr A S Bell SC & Mr J G Staude
Ninth Respondent         :     Mr A S Bell SC & Mr J G Staude
Tenth Respondent         :     Mr A S Bell SC & Mr J G Staude
Twelfth Respondent      :     Mr A S Bell SC & Mr J G Staude
Thirteenth Respondent   :     Mr A S Bell SC & Mr J G Staude
Fourteenth Respondent :     Mr A S Bell SC & Mr J G Staude
Fifteenth Respondent     :     Mr A S Bell SC & Mr J G Staude
Sixteenth Respondent     :     Mr A S Bell SC & Mr J G Staude
Seventeenth Respondent :     Mr B W Rayment QC & Mr G R Hancy
Eighteenth Respondent :     Mr M Corboy SC & Mr S F Popperwell

Solicitors:

Appellant:     Jackson McDonald
First Respondent           :     Talbot Olivier
Second Respondent       :     Talbot Olivier
Third Respondent         :     Talbot Olivier
Fourth Respondent        :     Bradley Bayly Legal
Fifth Respondent          :     Bradley Bayly Legal
Sixth Respondent          :     Bradley Bayly Legal
Seventh Respondent      :     Bradley Bayly Legal
Eighth Respondent        :     Talbot Olivier
Ninth Respondent         :     Bradley Bayly Legal
Tenth Respondent         :     Talbot Olivier
Twelfth Respondent      :     Talbot Olivier
Thirteenth Respondent   :     Bradley Bayly Legal
Fourteenth Respondent :     Talbot Olivier
Fifteenth Respondent     :     Talbot Olivier
Sixteenth Respondent     :     Mony de Kerloy
Seventeenth Respondent :     DibbsBarker
Eighteenth Respondent :     Pynt & Partners

CACV 20 of 2007

Counsel:

Appellant:     Mr M H Zilko SC & Mr J Eller
First Respondent           :     Mr A S Bell SC & Mr J G Staude
Second Respondent       :     Mr A S Bell SC & Mr J G Staude
Third Respondent         :     Mr A S Bell SC & Mr J G Staude
Fourth Respondent        :     Mr A S Bell SC & Mr J G Staude
Fifth Respondent          :     Mr A S Bell SC & Mr J G Staude
Sixth Respondent          :     Mr A S Bell SC & Mr J G Staude
Seventh Respondent      :     Mr A S Bell SC & Mr J G Staude
Eighth Respondent        :     Mr A S Bell SC & Mr J G Staude
Ninth Respondent         :     Mr A S Bell SC & Mr J G Staude
Tenth Respondent         :     Mr A S Bell SC & Mr J G Staude
Eleventh Respondent     :     Mr A S Bell SC & Mr J G Staude
Twelfth Respondent      :     Mr A S Bell SC & Mr J G Staude
Thirteenth Respondent   :     Mr A S Bell SC & Mr J G Staude
Fourteenth Respondent :     Mr A S Bell SC & Mr J G Staude
Fifteenth Respondent     :     Mr A S Bell SC & Mr J G Staude
Sixteenth Respondent     :     Mr A S Bell SC & Mr J G Staude
Seventeenth Respondent :     Mr A S Bell SC & Mr J G Staude
Eighteenth Respondent :     Mr B W Walker QC & Mr P Mendelow

Solicitors:

Appellant:     John Eller
First Respondent           :     Talbot Olivier
Second Respondent       :     Talbot Olivier
Third Respondent         :     Talbot Olivier
Fourth Respondent        :     Bradley Bayly Legal
Fifth Respondent          :     Bradley Bayly Legal
Sixth Respondent          :     Bradley Bayly Legal
Seventh Respondent      :     Bradley Bayly Legal
Eighth Respondent        :     Talbot Olivier
Ninth Respondent         :     Bradley Bayly Legal
Tenth Respondent         :     Talbot Olivier
Eleventh Respondent     :     Bradley Bayly Legal
Twelfth Respondent      :     Talbot Olivier
Thirteenth Respondent   :     Bradley Bayly Legal
Fourteenth Respondent :     Talbot Olivier
Fifteenth Respondent     :     Talbot Olivier
Sixteenth Respondent     :     Mony de Kerloy
Seventeenth Respondent :     Mony de Kerloy
Eighteenth Respondent :     Jackson McDonald

CACV 114 of 2007

Counsel:

First Appellant              :     Mr A S Bell SC & Mr J G Staude
Second Appellant          :     Mr A S Bell SC & Mr J G Staude
Third Appellant            :     Mr A S Bell SC & Mr J G Staude
Fourth Appellant           :     Mr A S Bell SC & Mr J G Staude
Fifth Appellant             :     Mr A S Bell SC & Mr J G Staude
Sixth Appellant             :     Mr A S Bell SC & Mr J G Staude
Seventh Appellant         :     Mr A S Bell SC & Mr J G Staude
Eighth Appellant           :     Mr A S Bell SC & Mr J G Staude
Ninth Appellant            :     Mr A S Bell SC & Mr J G Staude
Tenth Appellant            :     Mr A S Bell SC & Mr J G Staude
Eleventh Appellant       :     Mr A S Bell SC & Mr J G Staude
Twelfth Appellant         :     Mr A S Bell SC & Mr J G Staude
Thirteenth Appellant     :     Mr A S Bell SC & Mr J G Staude
Fourteenth Appellant     :     Mr A S Bell SC & Mr J G Staude
Fifteenth Appellant       :     Mr A S Bell SC & Mr J G Staude
Sixteenth Appellant      :     Mr A S Bell SC & Mr J G Staude
Seventeenth Appellant   :     Mr A S Bell SC & Mr J G Staude
First Respondent           :     Mr B W Rayment QC & Mr G R Hancy
Second Respondent       :     No appearance
Third Respondent         :     No appearance
Fourth Respondent        :     Mr B W Walker QC & Mr P Mendelow
Fifth Respondent          :     Mr M H Zilko SC & Mr J Eller
Sixth Respondent          :     Mr M Corboy SC & Mr S F Popperwell

Solicitors:

First Appellant              :     Talbot Olivier
Second Appellant          :     Talbot Olivier
Third Appellant            :     Talbot Olivier
Fourth Appellant           :     Bradley Bayly Legal
Fifth Appellant             :     Bradley Bayly Legal
Sixth Appellant             :     Bradley Bayly Legal
Seventh Appellant         :     Bradley Bayly Legal
Eighth Appellant           :     Talbot Olivier
Ninth Appellant            :     Bradley Bayly Legal
Tenth Appellant            :     Talbot Olivier
Eleventh Appellant       :     Bradley Bayly Legal
Twelfth Appellant         :     Talbot Olivier
Thirteenth Appellant     :     Bradley Bayly Legal
Fourteenth Appellant     :     Talbot Olivier
Fifteenth Appellant       :     Talbot Olivier
Sixteenth Appellant      :     Mony de Kerloy
Seventeenth Appellant   :     Mony de Kerloy
First Respondent           :     DibbsBarker
Second Respondent       :     Downings Legal
Third Respondent         :     Greenland Legal Pty Ltd
Fourth Respondent        :     Jackson McDonald
Fifth Respondent          :     John Eller
Sixth Respondent          :     Pynt & Partners

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

Abalos v Australian Postal Commission (1990) 171 CLR 167
Albion Insurance Co Ltd v Body Corporate Strata Plan 4303 [1983] 2 VR 339
Amaca Pty Ltd v Hannell [2007] WASCA 158
Bailey v Redebi Pty Ltd (1999) Aust Torts Reports 81-523
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bond v Weeks [1999] 1 Qd R 199
Bryan v Maloney (1995) 182 CLR 609
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202
Cole v Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) CLR 469
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Devries v Australian National Railways Commission (1993) 177 CLR 472
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Fimiston Mining NL v Western Reefs Ltd (1996) 14 WAR 387
Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588
Fox v Percy (2003) 214 CLR 118
Fractionated Cane Technology Ltd v Ruiz‑Avila [1988] 2 Qd R 610
Galashiels Gas Co Ltd v O'Donnell [1949] AC 275
Gove v Black [2006] WASC 298
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Gration v C Gillan Investments Pty Ltd [2005] 2 Qd R 267
Hamilton v National Coal Board [1960] 2 WLR 313
Henville v Walker (2001) 206 CLR 459
House v The King (1936) 55 CLR 499
Jacklin v Proprietors of Strata Plan No 2795 [1975] 1 NSWLR 15
Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 13,308
Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] 1 AC 211
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
MLC v Evatt (1968) 122 CLR 556
Norbis v Norbis (1986) 161 CLR 513
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
O'Conner v SP Bray Ltd (1937) 56 CLR 464
Perre v Apand Pty Ltd (1999) 198 CLR 180
Perrett v Collins [1998] 2 Lloyd's Rep 255
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Proprietors of Strata Plan 159 v Blake (1986) NSW Strata Titles Cases 30-086
Proprietors of Strata Plan No 464 v Oborn (1975) 1 BPR 9623
Proprietors Strata Plan No 30234 v Margiz Pty Ltd (1993) 7 BPR 14,458
Pyrenees Shire Council v Day (1998) 192 CLR 330
Reeman v Department of Transport [1997] 2 Lloyd's Rep 648
Ridis v Strata Plan 10308 (2005) 63 NSWLR 449
Roads and Traffic Authority v Royal (2008) 82 ALJR 870
Rogers v Whitaker (1992) 175 CLR 479
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd [2001] NSWCA 461; (2001) 53 NSWLR 626
Rosenberg v Percival (2001) 205 CLR 434
Seden v The Proprietors 'Tyalla Court' [1978] Qd R 53
Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157
Shaddock and Associates Pty Ltd v Parramatta City Council [No 1] (1980-81) 150 CLR 225
Sibley v Kais (1967) 118 CLR 424
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397
Stone James & Co v Investment Holdings Pty Ltd [1987] WAR 363
Strempel v Wood [2005] WASCA 163
Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215
Sullivan v Moody (2001) HCA 59; (2001) 207 CLR 562
Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424
Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317
Voli v Inglewood Shire Council (1963) 110 CLR 74
Water Board v Moustakas (1988) 180 CLR 491
Woollahra Municipal Council v Sved (1996) 40 NSWLR 101
Wyong Shire Council v Shirt (1980) 146 CLR 40
Yuen Kun Yeu v Attorney‑General of Hong Kong [1988] 1 AC 175

McLURE JA: These appeals are from orders made by Templeman J in an action for personal injuries resulting from the collapse of a balcony during a New Year's Eve party on 31 December 1996.
The party was held at one of eight strata‑titled units created from the conversion of a late Victorian industrial building known as the Old Soap Factory. The conversion of the Old Soap Factory, which included the addition of balconies, was substantially completed by November 1982.
Lavender Bay Pty Ltd (Lavender Bay), the then owner of the Old Soap Factory, carried out the conversion works as owner‑builder. Lavender Bay employed a registered builder, Mr Steven Bumstead, to supervise the works. Lavender Bay went into liquidation shortly after the completion of the conversion and sale of the units. Mr Bumstead died prior to trial.
Lavender Bay retained a firm of architects, Drexel London, to provide architectural services, including design drawings and specifications, for the conversion.
On Drexel London's recommendation, Lavender Bay retained consulting engineers, Halpern Glick Pty Ltd (Halpern Glick) to provide engineering advice when requested on structural aspects of the conversion.
The strata plan for the Old Soap Factory was registered pursuant to the Strata Titles Act 1966 (WA) (the 1966 Act). For that purpose, Lavender Bay obtained a certificate from the City of Fremantle (the City) under s 5(6)(c) of the 1966 Act, stating that the Old Soap Factory had been inspected and was consistent with the building plans and specifications. The body corporate is The Owners of the Old Soap Factory (Strata Title Plan 11175) (the Strata Company).
The balconies were not constructed in accordance with the drawings. The balcony collapsed because of a decision by Lavender Bay to substitute oregon timber for the select grade structural jarrah specified by Drexel London. The oregon was so weakened by rot that the balcony failed suddenly and catastrophically. The catastrophic nature of the failure was a result of the failure to incorporate in the balcony design an appropriate degree of redundancy to prevent progressive collapse. Tying the central column of the balcony to the wall of the building would have provided the necessary redundancy.
Persons injured in the balcony collapse (the injured claimants) sued, among others, the City and Halpern Glick in negligence and the Strata Company for breach of statutory duty. All but two of the injured claimants sued Drexel London in negligence.
The trial judge held that Drexel London was liable in negligence for failing to incorporate an appropriate degree of redundancy in the design of the balcony and in failing to inform Lavender Bay of the consequences of substituting oregon for jarrah.
The trial judge held the City liable for negligently certifying that the converted Old Soap Factory was consistent with the building plans and specifications. The claims against the Strata Company, Halpern Glick and others were dismissed. The trial judge apportioned 70% of the liability to the City and 30% to Drexel London.
Drexel London, the injured claimants and the City have appealed. Drexel London in its appeal claims the trial judge erred:
(a)in finding that Drexel London had breached its duty of care by failing to incorporate an appropriate degree of redundancy in the balcony design (ground 1);
(b)in finding that Drexel London had observed the use of oregon in the balcony (ground 3);
(c)in finding that the failure to inform Lavender Bay of the use of oregon caused or contributed to the damage (ground 2);
(d)in taking an inconsistent approach to the claims against Drexel London and Halpern Glick (ground 5);
(e)in failing to find that Halpern Glick provided the structural information incorporated in the drawing prepared by Drexel London (ground 6); and
(f)in dismissing the claim against the Strata Company (ground 4).
The injured claimants, the Strata Company and Halpern Glick filed notices of contention in the Drexel London appeal. The injured claimants contend the trial judge should have found that Drexel London was negligent in designing a balcony that allowed moisture to be trapped in the structure causing the timber to rot. The Strata Company contends that the 1966 Act does not give the injured claimants a right to claim damages for personal injury. Halpern Glick contends that if it supplied the structural information incorporated by Drexel London in its drawing, it owed no duty of care to Drexel London or alternatively, did not breach its duty.

The injured claimants appeal on the grounds that the trial judge erred:
(a)in dismissing their claim against the Strata Company (ground 1);
(b)in dismissing their claim against Halpern Glick (grounds 2 and 4); and
(c)in failing to make a Sanderson or Bullock order against Drexel London and the City in respect of the costs of the successful defendants (ground 3).
The injured claimants applied to amend ground 4 to read as follows:
The learned trial judge erred in dismissing the appellant's claim against the sixth respondent (Halpern Glick) in that he erred in fact in failing to find that ~~Drexel London obtained structural advice with respect to the design of the balcony from an engineer from Halpern Glick and that such advice was negligent~~ Halpern Glick was negligent in failing to identify that the design of the balcony failed to provide adequate or sufficient bracing to stabilise the central column of the balcony.
The application to amend was opposed by Halpern Glick.
The Strata Company and Halpern Glick filed notices of contention in the injured claimants appeal in the same terms as the Drexel London appeal. Halpern Glick also filed a cross‑appeal which only arises for determination if the injured claimants succeed in their appeal against Halpern Glick and the Strata Company, the City and/or Drexel London are also liable.
The City in its appeal claims the trial judge erred in finding that it owed a duty of care to the injured claimants, that the duty had been breached and that the breach caused the loss. It also challenges the apportionment of liability.

The facts and findings

The structure of the balcony

The trial judge provided a detailed description of the structure of the balcony. That information is necessary for an understanding of the issues. What follows is taken from the trial judge's reasons.
One of the buildings comprising the Old Soap Factory was converted into four units, each having five floors. Units 1 and 4, which are respectively on the southern and northern ends of this building, both had balconies constructed at the first and second floor levels of their end walls. The structure of the balconies was identical. The first floor balcony of Unit 1 was the balcony that failed.
The balconies to Unit 1 were approximately 8.1 m wide and 3 m deep. The floor of each balcony was constructed of closely spaced wooden battens nailed to 2.9 m long timber joists, being approximately 190 mm x 48 mm in cross‑section. There were 16 joists. The northern ends of the joists were supported by a timber plate of similar cross‑section, but about 8 m long, which was bolted to the southern wall of Unit 1 by 'trubolts'. This is the proprietary name for a bolt which is inserted into a hole in the wall and expands into the hole when tightened.
The southern ends of the joists were supported by two lengths of timber (referred to as plates) of similar cross‑section to the joists. These plates were each about 4 m long, separated by a steel column (the central column) and backed by a steel member (referred to as a beam) which formed the southern edge of the balcony. The timber plates were bolted to the steel beam by stud bolts welded to it at intervals along its length.
Oregon, a species of pine, was used for the joists and supporting plates.
The design called for the joists to be half‑housed into their supporting timber plates. This required slots to be cut into the plates opposite the ends of each joist. The width of the slots would be equal to the thickness of the joists. The slots would extend halfway into the plates and halfway down from the top of the plates. Thus, each slot would be approximately 48 mm wide, 24 mm deep and 95 mm long.
The ends of each joist would be cut so that the upper half formed a tongue having dimensions equal to its corresponding slot. If the required cuts had been made accurately, the ends of the joists would have fitted exactly into the plates such that the weight of the balcony would have been supported on 32 points of contact each having an area of 48 mm x 24 mm.
In fact, the depth of housing was far less than specified in the design. The trial judge found the depth of housing varied between about 9 mm and 14 mm. The joists were fixed to the plates by skew nails. That is, nails driven through the joists and into the plates at an angle of about 45 degrees.
In addition to the central column, there were two steel columns, one at each end of the southern side of the balcony.
The eastern and western sides of the balconies were fabricated from steel having the same cross‑sectional dimensions as the southern beam. The side (steel) beams, to which the end joists were attached, 'tied' the end (steel) columns back to the southern wall of the building. The beams were let into the wall and were bolted through it.
The end columns were not only tied back to the wall by the side beams, but also by means of 16 mm diameter steel rods and turnbuckle assemblies slung under the joists. Each set of rods was hooked to the steel columns at the southern end of the balcony and at the other end, to a steel plate bolted through the southern wall of the building, immediately below the wall plate.

The cause of the collapse

The trial judge made the following findings as to the physical cause of the collapse:
I find … that the balcony collapsed because the oregon timber from which the southern supporting plate had been cut, was so weakened by rot that it failed suddenly, somewhere in the region of the south-eastern corner. The cause of the rot was the moisture trapped between the southern support plate and the outer steel beam [86].
The failure of the southern support plate caused the joists in that region to fall, thereby creating a wedging effect on the composite southern supporting plate and steel beam. The wedging effect caused the outward deflection of the structure, thus reducing the bearing areas of the joists on their support plates [87].
…
Because the central column was not tied back to the southern wall of the building there was nothing to prevent or restrict the operation of the mechanism described above. The collapse was therefore rapid and complete [89].
If the balcony had been constructed of jarrah, rather than oregon, it would not have rotted to the same extent: and the balcony would not have collapsed as or when it did [90].
If the joints connecting the joists to their supporting plates had been fully half-housed, the structure would have been stronger, but the failure would still have occurred. That is because of the magnitude of the horizontal force created by the wedging effect of falling joists. I accept the expert evidence that half-housing was considered to be an acceptable means of joining the joists to the supporting plates [91].
If the central column had been tied back securely to the southern wall of the building, the collapse would still have occurred to some extent. However, it would not have been catastrophic, so that people on the balcony at the time of the collapse would have been able to escape to the safety of the building [92].

The architects and engineers

Drexel London was the name of the partnership between Ralph Drexel and Geoffrey London. Drexel London commenced acting for Lavender Bay in relation to the conversion of the Old Soap Factory in around October/November 1980.
Halpern Glick was instructed on 4 December 1980. Halpern Glick's contract of retainer was with Lavender Bay. It was not a general retainer. Rather, Halpern Glick was appointed as a consultant to be called upon as and when its services were required.
Drawings were produced by Drexel London in March 1981. These included a drawing numbered 15 which showed a side elevation of the balconies. Drawing 15 contained a number of structural details set out in notes. The notes included the following:
-all pergola rafters, plates and balcony joists were to be 'select grade structural jarrah';
-each balcony floor was to be constructed on 16 joists made from timber dressed from 175 x 50 millimetres, evenly spaced and half housed into 175 x 50 millimetre plates at each end;
-at the underside of the rafters at the upper level and below the joists at the lower levels, 16 millimetre diameter mild steel rod and turnbuckle assemblies were to be hooked to mild steel eyes 'welded to post and central wall plate'. The plate was to be fixed to the wall with 4 TS-12-7SS stainless steel trubolts.
There was a further note on drawing 15, positioned above the depiction of the balconies. It was as follows:
Balconies generally as noted below and to structural engineer and architects details and specifications.
The trial judge observed:
The details set out in the notes summarised above are engineering, rather than architectural matters. That is to say, the structural integrity of the balconies depended on the correct sizing and appropriate construction of the various elements of the balcony [120].
Although drawing 15 contained sufficient structural information to enable Lavender Bay to obtain a building licence, it contained insufficient detail to enable the balconies to be constructed. The trial judge accepted Mr London's evidence that one of the purposes of drawing 15 was to make it clear that further structural engineering and architectural detail would be required [174].
Although drawing 15 was produced by Drexel London, the trial judge found that Mr Drexel obtained the structural information contained in that drawing from an engineer [152]. However, the trial judge did not accept Mr Drexel's evidence that the structural information was provided by Halpern Glick [153].
With some exceptions, the structural information in drawing 15 appears on two sketches made by Mr Drexel recording the information supplied by the engineer. One sketch shows the plan view of the balcony (the Drexel sketch) with notations as follows:

The three steel columns are shown at the top of the sketch with the steel rods from the end columns meeting at a plate on the southern wall of the building shown on the bottom of the sketch. 'TB' denotes the turnbuckle assemblies.

As identified by the trial judge at [149], the notes on the sketches made by Mr Drexel also include the following:
•'stainless steel trubolt TS-12-7SS' ‑ in relation to the fixing of the timber wall plate;
•a half-housed joist-wall plate joint;
•a 200 x 300 millimetre plate, apparently containing eyes which form part of the bracing assembly;
•'timber struct. grade karri' ‑ apparently a reference to the appropriate timber for the construction of the balcony;
•'150 x 50 @ [610] max. centres' ‑ apparently a reference to the joist size;
…
•what appears to be a steel beam 200 millimetres deep and 12 millimetres thick is shown welded by a continuous fillet weld to a 76 x 76 x 5 angle iron. This appears to be the exterior steel beam at the extremity of each of the balconies.
Mr Drexel made some changes to what was specified by the engineer. The changes shown on drawing 15 include the specification of jarrah not karri and an increase in the size of the steel rods, joists and angle irons. The trial judge accepted Mr Drexel's evidence that he decided to specify jarrah in place of karri because it was a stronger timber and that he increased the size of the rods, joists and angle irons in order to increase the strength of the structure. Mr Drexel did so because, in his experience, engineers specified minimum sizes. He said it was not uncommon for him to improve on an engineer's specification and that he was competent to do so.
The trial judge found that Halpern Glick was not asked to check the balcony drawings or (with one exception) to provide any of the missing detail [175].
Drexel London's initial understanding was that after completion of the design development stage and Lavender Bay's acceptance of the design and the builder's cost estimate, they were to proceed with traditional contract documentation. By that is meant a building contract between Lavender Bay and a builder with Drexel London having contract administration and supervision duties under the building contract. The expectation was that an Edition 5b Lump Sum Contract (produced by the Royal Australian Institute of Architects and the Master Builders Federation of Australia) would be used.
At the time Drexel London produced the drawings in March 1981 Lavender Bay was undecided as to how it would proceed [259]. By early April 1981 it had decided to undertake the conversion of the Old Soap Factory as owner-builder and engage Mr Bumstead [263]. A building licence was issued on 16 June 1981 [364].
Drexel London had prepared a specification on the basis that Lavender Bay would enter into a contract with a builder in the traditional way [266]. The trial judge accepted Mr Drexel's evidence that the specification 'was not intended to apply universally' once it was decided that the conversion was to be carried out by Lavender Bay as owner‑builder [274]. The judge also accepted that Drexel London had no contractual obligation to Lavender Bay in relation to contract administration or supervision [275], [284].
During the course of construction, either one or both of Mr Drexel and Mr London attended weekly site meetings [276]. The trial judge accepted that Drexel London had no authority to give instructions to Mr Bumstead but that decisions at site meetings were reached as a result of discussion [280] ‑ [281]. The trial judge concluded that Drexel London was required to monitor the progress of the work as far as was reasonable in the course of the weekly site visits, and at the very least, to advise their client if they became aware of any defective workmanship [285].
The steel work for the balconies was fabricated by an organisation known as Phillips Engineering. The trial judge found that the steel work could not have been fabricated without the preparation of shop drawings. Such drawings contain sufficient detail to enable the steel to be cut and welded as appropriate [176]. Shop drawings for the steel work for the balconies were prepared by Philips Engineering [193].
Mr Jeffrey Welch was employed as a site inspector by Halpern Glick. He had worked as a structural design and civil draftsman but had no engineering qualifications. As a site inspector, Mr Welch's duties included visiting the building site to check work in progress to ensure it was being carried out in conformity with Halpern Glick's designs and specifications. The trial judge accepted Mr Welch's evidence that it was his job to look for non‑approved structures and make sure whatever was happening on site conformed to the requirements of the engineer. Had he discovered that there was a non‑approved structure he would have been 'pushing all the alarm bells because that was what I did' [185].
The minutes of a site meeting on 7 April 1982 record the following in relation to the balconies for units 1 and 4:
Halpern Glick and Phillips Engineering to liaise closely on tying and bolting decks back to existing building to ensure absolutely secure and permanent security of the decks, building and fittings.
The judge found that Mr Welch attended at site on 8 April 1982 as a result of the decision recorded in these minutes [194].
Other minutes which, although undated, appear in the sequentially numbered pages of the minute book between the minutes of site meetings on 31 March and 7 April 1982, record under the heading 'Balconies':
Halpern Glick to be in attendance when being installed to make sure balconies comply with their design.
On 8 April 1982 Mr Welch attended the Old Soap Factory site at the request of Mr Bumstead. Mr Welch subsequently prepared a Halpern Glick site report in which he set out the detail of the matters he had been asked to address. The report notes:
The erectors of the steel work had experienced difficulty in securing horizontal bracing to the brick wall in that the trubolts fixing the anchor plates pulled out when tension set in to braces via the turnbuckles. Alternative fixing details were discussed with Bumstead and the following agreed to: …
Mr Welch proposed that the steel plate carrying the ends of the bracing rods should be secured to the southern wall of the building by bolts which passed through the wall [187]. Mr Welch also noted there was no system for attaching the returns of the steel beams forming the eastern and western sides of the balconies to the building [188]. Mr Welch discussed this matter with Mr Bumstead and provided the missing detail, which involved welding a right angle cleat onto the beam end and securing the cleat with a bolt passing through the brick wall [189]. The trial judge continued:
It is apparent also that Mr Welch noted that the central column on the southern side of the balcony was not secured to the southern wall by a tie rod as were the corner columns. On his sketch, Mr Welch noted that the central column was to be 'tied back by joists'. He did not, however, provide any detail as to the way in which that tying back would be achieved [190].
Mr Welch's sketch with relevant annotations is as follows:

The southern wall of the building with the anchor plate is shown on the right side of the sketch and the three steel columns on the left side.

The trial judge accepted Mr Welch's evidence generally [192]. Based on that evidence he found that although the Drexel London drawings had been given to Halpern Glick in May 1981, Halpern Glick had not provided any of the missing detail because there had been no request to do so [193]. He also found that the shop drawings were prepared by Phillips Engineering without input from Drexel London or Halpern Glick [193].
The trial judge inferred the balconies had been completed, or were nearing completion, by 9 June 1982. By that stage the decision to use oregon rather than jarrah must have been taken. The trial judge found the decision was not made at a site meeting. He continued:
I accept the evidence of Mr Drexel that Mr Bumstead was a competent builder. A registered builder such as Mr Bumstead would have known that oregon was not suitable as a structural timber for exterior use. I therefore draw the inference that Mr Bumstead did not substitute oregon for jarrah on his own initiative.
I accept that neither Mr Drexel nor Mr London were told about the substitution and that they did not suggest or authorise it. The inference is therefore overwhelming that the substitution was carried out on the instruction of Lavender Bay [202] ‑ [203].
At the end of June 1982 Mr Drexel and Mr London were asked to prepare a list of items to be rectified and completed [204]. The trial judge found that the inspection list was prepared as a result of inspections carried out by Mr Drexel and Mr London over a number of visits [205]. The trial judge also found that at one of these inspections Mr Drexel and Mr London observed that oregon had been substituted for jarrah [228]. I return to this issue below.

The findings against Drexel London on redundancy

The injured claimants' pleaded case against Drexel London was that it failed to provide for stabilising bracing of the central column of the balcony.
The trial judge accepted the expert evidence of Mr Donald Phillips, an engineer, that all structures should be designed with some degree of redundancy so as to prevent progressive collapse [246]. That is, elements should be included in a structure which will permit loads to be distributed to other elements in the event of a failure. The purpose of the redundant member is to prevent what would otherwise be a catastrophic failure of the structure [70]. The trial judge continued:
That being so, I conclude that an architect is negligent if his design does not incorporate an appropriate degree of redundancy [246].
In the present case, there was no redundancy in the southern composite supporting plate and beam structure. That is to say, there was nothing to restrain the outward movement of the structure in the event of a deck collapse [247].
I have accepted the evidence of those experts whose opinion it was that a restraint on the central column would have prevented (at least) the catastrophic collapse of the balcony. Mr Drexel's argument is that:
' … If [the balcony] had been built in jarrah and the connections were correctly done, I don't think there would have been any real risk of that column moving out' (TS 717) [248].
I do not accept that proposition. It was obvious to Mr Welch that the central column should be tied back. He had plans which specified jarrah: and he had no reason to suppose that the joists would be cut inaccurately. In other words, even though the risk of the column moving outwards was small, it was a risk which could easily have been eliminated: and in my view, should have been [249].
I therefore consider that Drexel London were negligent in failing to incorporate that stabilising element in their design of the balcony. That failure was a cause of the collapse of the balcony and the plaintiff's injury [250].

In supplementary reasons apportioning contribution between Drexel London and the City, the trial judge explained why he considered the City far more culpable than Drexel London. He said:
[Drexel London] acted reasonably in obtaining structural advice from an engineer. They are liable for the deficiencies in the design of the balcony because they put it forward as their own [99].

The findings in favour of Halpern Glick

The injured claimants also pleaded that Halpern Glick was negligent in not identifying that the design of the balcony failed to provide for stabilising bracing of the central column of the balcony. When addressing that issue the trial judge said:
[I]t is true that the design of the balcony depicted in drawing 15 made no express provision for bracing the central column of the balcony in such a way as to connect the column to the [southern] wall of the building [297].
It is clear that when Mr Welch visited the site on 8 April 1982, he appreciated the need to provide this link. On his sketch he noted that the central column was to be 'tied back by joist'. I accept the evidence of Mr Blake that this would have been an acceptable method of securing the central column. The note therefore served as an advice to Mr Bumstead that the column should be secured in this way [298].
When Mr Welch visited the site, the steel work was being erected. The timber elements of the balconies could not have been constructed until after the steel work had been completed. That being so, Mr Welch would not have been in a position to provide any advice to Mr Bumstead as to the precise method of linking the joist to the central column. That was a matter which, if not within Mr Bumstead's competence as a builder, would have required him to take advice either from Drexel London or Halpern Glick [299].
…
There is no evidence that any representative of Halpern Glick visited the Old Soap Factory to inspect the balconies after 8 April 1982, or was asked to do so [301].
In these circumstances, I consider that Halpern Glick cannot be held responsible for the fact that the design of the balcony did not include any detail for the tying back of the central column to the north [sic] wall of the building. The claim against Halpern Glick must therefore be dismissed [302].

What the trial judge found at [298]

The application by the injured claimants to amend ground 4 of their grounds of appeal raised an issue as to the intended meaning and scope of [298] of the trial judge's reasons. That matter needs to be determined before dealing with the grounds of appeal.
The submissions put on behalf of the injured claimants at the hearing of the appeal took an unforeshadowed turn. The injured claimants contended that on the proper construction of [298] in the context of the reasons as a whole, the trial judge did not intend to find that it was acceptable if the central column was 'tied back by joist'. The finding of acceptability they say relates to the central column being tied back by two diagonal braces to the southern wall of the building, being the inverse of the bracing of the end pillars. The term bracing was used at trial to mean steel tie rods.
It was said the trial judge could not have intended to find that tying back by joists was an acceptable method of securing the central column because such a finding was inconsistent with other findings made by the trial judge, illogical and irrational. The starting premise for that contention is that Mr Welch's sketch of 8 April 1982 incorporates the same relevant design feature as the Drexel sketch on which drawing 15 was based, namely the central column was to be tied back to the building solely by means of the joists.
Both Drexel London and Halpern Glick accept the correctness of that premise. They contend the detail to which the trial judge refers in [190], [299] and [302] relates to the means by which the joists were to be secured to the timber plates fixed to the southern wall of the building and to the timber plates fixed to the steel beams between the columns. The joists were to be half‑housed in the plates and fixed by skew nails.
The injured claimants on the one hand and Drexel London and Halpern Glick on the other all rely on the evidence of Mr Peter Blake to support their contentions as to the trial judge's intention. His Honour said in [298] he accepted the evidence of Mr Blake that 'tied back by joist' would have been an acceptable method of securing the central column.
Mr Blake was an experienced structural engineer in the employ of Halpern Glick and from September 1981 was involved in aspects of the engineering design for the conversion of the Old Soap Factory [145]. Mr Welch was working under Mr Blake's supervision and direction (ts 876) and Mr Blake approved Mr Welch's site report of 8 April 1982.
Mr Blake gave evidence that the tie rods to the end columns were there to provide lateral stability in the horizontal direction (ts 881). The cross‑examination based on Mr Welch's sketch continued:
Did it occur to you at all that [if] the bracing, as it had been detailed here, had been reversed so that the central column of the balcony was braced?‑‑‑Yes, it could've been reversed.
That would have had an effect of preventing any deflection of that column and the beam that it supported?‑‑‑Yes.
That wasn't something that you gave any attention to?‑‑‑No, the steel joists are tied back by the timber joists.
Does that mean that you considered that support of the central column?‑‑‑I can't ‑ you're asking me about the significance of the columns and I was trying to answer that question.
Yes?‑‑‑I can't remember the details of what were discussed other than that connection. I may've looked at it subconsciously and it just looked ‑ and in my experience said, 'Well, we haven't got a tie there but we've got timbers tying it back'. I may have considered that. I can't remember.
How do you think the joists might tie back?‑‑‑The joists are fixed to the wall at one end and they're fixed to the beam at the other end. There's a score of them or so. So the force in each member would be fairly insignificant.
Do you know how the joists were to be secured to the plates?‑‑‑I believe they were half‑housed and nailed or fixed in accordance with the code.
…
At the time you were considering this detail with Mr Welch on or about 8 April 1982 you saw there was a note there 'column tied back by joists'?‑‑‑Yes, that's right. Maybe that’s
I'm asking you whether you took that as read or whether you gave consideration to it?‑‑‑I can't recall giving specific ‑ I can't recall looking at that and thinking there was a problem there.
But you would agree that the way that the bracing is detailed in that report movement of the central column and the ?‑‑‑Is relying on the timber joists, yes.
There's nothing else to hold it back?‑‑‑That's correct (ts 882).
The following exchange is at ts 884:
Would you accept, looking at the detail now, that what I would suggest as a more prudent way of securing the framework would have been to run the bracing to the central column or have further bracing from the wall plate to the central column?‑‑‑Yes. It could well have been more prudent. The point was that it says here, 'Tie back by joist' and that's legitimate.
The injured claimants referred to expert engineering evidence from Mr John Ryan that there were a number of ways the central column could have been tied back. He gave two examples: two diagonal braces (tie rods) meeting at the central column or a tie rod directly from the central column to the wall plate.
Halpern Glick drew the court's attention to expert engineering evidence from Dr Dennis Evans who had made recommendations concerning the reconstruction of the balcony. He proposed the use of hardwood timber and for the joist seating in the supporting plates to be detailed to provide adequate support. He made no provision for bracing.
The trial judge's intention is to be gathered from his reasons as a whole, including his causation findings. The trial judge understood the Drexel London design reflected in the Drexel sketch (indirectly) tied the central column to the building. He said:
The central column was tied back to the [south] wall of the building only by the skew nailed joists. The horizontal resistance provided by the skew nails was minimal [66].
This observation relates to the balcony 'as constructed' not 'as designed' because the trial judge is here considering the physical cause of the balcony collapse.
Accepting the evidence of Mr Phillips that the balcony should have been designed with some degree of redundancy [70], the trial judge concluded that 'a secure means of tying the central column back to the southern wall of the building would have provided the necessary element of redundancy' [71].
The trial judge found that even if the joints connecting the joists to their supporting plates had been fully half‑housed, the balcony failure would still have occurred [91]. There was no claim (and no expert evidence referred to by the trial judge) attacking the use of skew nails to fix the joists to the plates. Moreover, the method of fixing the joists to the plates was not addressed in drawing 15. It was a missing detail.
The trial judge's causation finding was that if the central column had been tied back securely to the southern wall of the building the collapse would have been averted or would have happened much more slowly [84], [92].
The trial judge then made a composite finding of causation and defective design. He said a primary cause of the collapse was 'the inadequate design of the southern supporting structure' [94] which I take to be the failure referred to in [71] to securely tie the central column to the southern wall of the building. The only relevant design of this aspect of the balcony was the Drexel sketch on which drawing 15 was based. Thus, there is a prima facie inconsistency between the finding that the Drexel London design which provided for tying back the central column by the joists was inadequate and the finding in [298] that tying back by joists was acceptable.
Moreover, there is circularity in the proposition that the necessary redundancy is supplied if the central column is tied back by joists. It was the failure of the joists at the south‑east corner that caused the movement of the central column and it was this movement of the central column that contributed to the failure of the remaining joists. The trigger for the initial failure of the joists was the rotting of the plate to which the joists were fixed. The mode of fixing the joists to the plate was not causative. As already noted, the trial judge found that it was appropriate for the joists to be half‑housed in the timber plates and the failure of the joists would have occurred even if they had been properly half‑housed in accordance with drawing 15. There was no claim or finding that the use of skew nails was inappropriate or that an alternative mode of fixing could have provided the necessary redundancy. The element of redundancy in this case had to be such as to prevent the initial movement of the central column caused by the joist failures attributable to the rotting plate.
However, the prima facie inconsistency cannot be resolved by upholding the injured claimants' construction of [298]. The clear language used by the trial judge and his acceptance of the evidence of Mr Welch and Mr Blake make it impossible to conclude that he intended to find that the central column should have been braced by a tie rod or rods to the southern wall of the building. There is no ambiguity in Mr Blake's evidence. He was speaking of two different approaches to securing the central column, being the use of bracing (which would have been more prudent) and by means of the joists (which in his opinion was legitimate).
By the same token it is clear the trial judge thought that the design in Mr Welch's sketch (the Welch design) (that the central column be tied back by joists) was materially different from the Drexel London design which he had earlier found to be inadequate. This is confirmed in [248] and [249] in which he addressed the question of breach by Drexel London (when considering breach, the correct focus is on the balcony as designed and when considering causation it is the balcony as constructed). Mr Drexel's position was that if the balcony had been built in jarrah and the connections were correctly done there would have been no real risk of the column moving out (ts 717). The trial judge rejected that proposition with the observation that '[i]t was obvious to Mr Welch [who had plans which specified jarrah and who had no reason to suppose the joists would be cut inaccurately], that the central column should be tied back' [249].
Mr Welch's note was not interpreted as descriptive of the existing design but was regarded by the trial judge as serving as advice to Mr Bumstead that the column should be secured in that way, albeit without 'the precise method of linking the joist to the central column' [299]. It is of note that in each of [298] and [299] the trial judge uses the term 'joist' in the singular as if to describe a single structural support. That use, in the context of [297], [298], [299] and [302] supports the view that the trial judge understood the Welch design as involving a direct connection between the central column and the southern wall of the building not the indirect tie back design in the Drexel sketch.
However, the trial judge's understanding of the Welch design is inconsistent with the evidence of Mr Blake referred to earlier and that of Mr Welch. Mr Welch gave limited evidence on the subject as follows:
[The central column] was not tied back?‑‑‑From my notes here, no. It wasn't tied back.
Did that give you any concern at the time?‑‑‑It wasn't tied back with steel at the time. I have a note here saying, 'Col tied back by joists'. I obviously realised that it needed to be tied back. Hence the note.
Did you have any expertise which would enable you to form an opinion as to what support the joists would give the column?‑‑‑No. I would have gone back and discussed that with the engineer (ts 906).
Mr Welch said drawing 15 described the tie rod configuration he saw on 8 April 1982 (ts 906) and that he discussed his site minute with Mr Blake (ts 900) who at trial had no recollection of any discussion as to the tie back of the central column. Mr Welch was not asked what he meant by 'Col tied back by joists'. It was not put to Mr Welch that he had assumed responsibility for providing an additional means of securing the central column to the southern wall beyond that reflected in drawing 15
I agree with the injured claimants, Drexel London and Halpern Glick that Mr Welch's sketch contains the same design for tying back the central column as the Drexel sketch on which drawing 15 was based. However, the trial judge found that design lacked an appropriate degree of redundancy. The grounds of appeal must be determined on this basis.

Injured claimants' application to amend ground 4

Halpern Glick objects to the proposed amendment to ground 4 on multiple grounds. It contends the proposed amendment and supporting written submissions are unacceptably vague and raise issues which are either (or both) outside the pleaded case or were not litigated. If the proposed amendment asserts a negligent failure by Halpern Glick in April 1982 to advise of an acceptable tie back method, Halpern Glick says that case was not pleaded against it and if it had been pleaded, would have been defended on the basis that the claim was statute‑barred. It also contends that the proposed claim is contrary to the unchallenged finding at [298]. If the proposed amendment asserts a negligent failure to provide the detail as to how the central column was to be tied back by joists, Halpern Glick contends that the claim is contrary to the unchallenged finding at [302] and was neither pleaded nor litigated. If pleaded, the claim would also have been the subject of a limitation defence.
The Supreme Court (Court of Appeal) Rules 2005 (WA) require an appellant to state the grounds of appeal, and concise particulars of them, succinctly (r 32(4)(b)). Ground 4 as it currently stands does not comply with this rule. When regard is had to the written submissions on the existing ground, the sole challenge is to the trial judge's failure to find that Halpern Glick provided the structural information obtained by Drexel London for the purpose of preparing the March 1981 drawings, including drawing 15.
The proposed amendment to ground 4 is also unacceptably general. Additionally, the written submissions fall short of clearly identifying the alleged error they seek to challenge. The best that can be gleaned is that the injured claimants seek a finding that in April 1982 Halpern Glick negligently failed to identify and, I infer, advise Lavender Bay that the design of the balcony failed to provide adequate or sufficient bracing to stabilise the central column. These problems at the appellate stage are no doubt a consequence of the generality of the injured claimants' statement of claim. Halpern Glick's objection based on the scope of the pleading is the foundation for any limitation defence. Halpern Glick was first joined to the proceedings as a defendant to a fourth party claim made by Drexel London. Subsequently, the injured claimants joined Halpern Glick as a defendant in the main action.
Prior to trial, Drexel London's claim against Halpern Glick was confined to an allegation of negligence in advising Drexel London in the period December 1980 to May 1981, which advice was said to be recorded in drawing 15. At the commencement of the trial on 6 November 2006, Drexel London sought and obtained leave to amend its statement of claim to include an allegation of negligence based on the provision of structural advice to Lavender Bay on 8 April 1982 in relation to securing the balcony (ts 110 ‑ 129). The alleged breach was Halpern Glick's failure to inform Lavender Bay of the fact and consequence of failing to tie back the central column to the southern wall of the building.
The injured claimants did not apply to amend their statement of claim. They took the position that their pleading was wide enough to encompass a negligent omission in April 1982 of the nature alleged by Drexel London (ts 1089). They conducted their case on that basis. Halpern Glick repeatedly objected to what it claimed were departures by the injured claimants from their pleaded case (ts 117, 884 and 1033).
The injured claimants' statement of claim at the time of trial provides:
53.[Halpern Glick] provided structural advice to [Drexel London] in relation to the development of the Building.
54.[Halpern Glick], or one of its employees or agents suggested or considered the designs of [Drexel London] as pleaded in paragraph 50(b), (c) and (d).
54A.In providing such structural advice and in suggesting, or considering, the designs as pleaded in paragraphs 53 and 54 respectively above, [Halpern Glick] was under a duty to act with all reasonable professional skill, care and diligence.
54B.The duty pleaded in paragraph 54A above was owed to a person or persons such as the plaintiff who could reasonably have been expected to use the Building in the ordinary way associated with the purpose for which it was designed, namely residential apartments.
55.The Collapse and the plaintiffs subsequent injuries were caused or contributed to by the negligence of [Halpern Glick]
PARTICULARS OF NEGLIGENCE
[Halpern Glick] was negligent in that it failed to identify:
(a)that the design of the detailing was such that moisture could be trapped both in the housed joint and between the steel support beam and the timber Plates;
(b)the design of the Balcony failed to provide for stabilising bracing of the central column of the Balcony.

Paragraph 50 pleads that the specifications (defined to include the plans which includes the drawings) relevantly provided:
(b)the detail of the design of the wood and steel interface between the Plates and the steel frame;
(c)the detail of the design of the half‑housing interface between the joists and the face and wall Plates; and
(d)how the Balcony was to be braced, supported and attached to the wall of the building.
Paragraph 54 includes a plea that one of Halpern Glick's employees or agents considered Drexel London's designs, which includes a reference to the drawings and drawing 15 in particular. That plea goes beyond providing structural advice or suggestions to Drexel London for incorporation into the design, in which event there is no basis to construe par 53 as controlling or limiting the scope of the balance of the pleading. The pleading is drafted in such general terms as to be wide enough to permit the injured claimants to rely upon the events in April 1982 as giving rise to a negligent omission to advise of the design defect in the balcony. Accordingly, no limitation issue arises.
Thus, the proposed amendment is consistent with the pleading and the case conducted by the injured claimants (and by Drexel London in its contribution proceedings) against Halpern Glick. Having regard to my conclusion as to what the trial judge intended in [298], it is in the interests of justice that the injured claimants be permitted to challenge the correctness of the findings at [298] and [302]. Such a challenge is implicit in the proposed amended ground for which I would grant leave.
I propose to address all grounds of appeal affecting Halpern Glick before dealing with Drexel London's other grounds of appeal.

Source of structural information in drawing 15 (Drexel London's ground 6; injured claimants' ground 2)

Drexel London claims in ground 6 that the trial judge erred in failing to find that the structural information contained in drawing 15 was derived from Halpern Glick. This ground is not expressly relied on as the basis for a further finding that Halpern Glick was negligent.
The injured claimants claim in ground 2 the trial judge erred in failing to find that Drexel London obtained structural advice with respect to the design of the balconies from an engineer at Halpern Glick and that such advice was negligent.
The trial judge found that Mr Drexel obtained the structural information contained in drawing 15 from an engineer [152]. Although the trial judge accepted that Mr Drexel believed he obtained the structural advice from Halpern Glick, he was not persuaded as to the correctness of that belief [153], [168].
Mr Drexel's evidence‑in‑chief is to the following effect. He obtained the engineering information contained in drawing 15 from Halpern Glick. He engaged in discussions with an engineer at Halpern Glick in order to obtain advice as to the structure and configuration of the balcony, and to the best of his recollection, that engineer was Mr Peter Lemish. In cross‑examination, Mr Drexel said he remembered clearly going to see someone in Halpern Glick's office 'and sitting at a table and asking questions and noting down the responses' [133]. In the end his evidence was that he did not know whether he spoke to Mr Lemish; he might have done so but could not remember who it was he spoke to at Halpern Glick [135].
Mr Graham Glick was the principal engineer directly responsible for the project. Mr Drexel doubted that he obtained the information from Mr Glick because he knew him [163]. Mr Glick was not asked whether he had given the information to Mr Drexel.
Mr Lemish was at the material time a relatively inexperienced engineer working under the supervision of Mr Jack Scott at Halpern Glick and was involved in aspects of the engineering design for the conversion of the Old Soap Factory. Mr Lemish said he did not provide any input into the details shown in drawing 15. He said if he had been asked to consider the design of the balconies he would have completed an initial project data sheet recording receipt of instructions and performed calculations [140]. In particular, he would not have been able to specify the size and details of the footings, steel members, bracing and fixing details without calculating the relevant loads or forces on the members [143]. Mr Lemish did not complete any document recording the receipt of instructions and there was no evidence that any calculation sheets were produced by any employee of Halpern Glick in relation to the balconies [144].
In the end, Mr Lemish's evidence was that it was unlikely he had provided the engineering details to Mr Drexel but he could say only that he had no recollection of the meeting of which Mr Drexel gave evidence [147]. The trial judge accepted Mr Lemish's evidence that it was unlikely he was the source of the structural information [153].
The trial judge doubted whether anyone at Halpern Glick would provide details to Mr Drexel without first calculating the relevant loads because he accepted the evidence of Mr Blake on that subject [145]. Mr Blake said that given the size and exposed position of the Old Soap Factory, it would be necessary to undertake the relevant calculations which would take a few hours. He said there were circumstances in which an engineer might use judgment but he was certain that in the circumstances of this case it would not have happened [145].
The trial judge also accepted Mr Blake's evidence that he had no recollection of any involvement with the structural aspects of the balcony design [154] and Mr Scott's evidence that he did not design the balconies or provide any suggestions for their design [155].
The trial judge placed no weight on Mr Drexel's evidence that the structural information came from Halpern Glick [169] because of his assessment that Mr Drexel had very little recollection of the events in question, his impression that the documents put to Mr Drexel did not refresh his memory but prompted an interpretation, Mr Drexel's change of position on Mr Lemish and his evidence, found to be mistaken, that he had never stood on the balconies [166], [167].
The trial judge relied on a number of other indicators. First, Mr Welch was surprised to learn that steel he saw on site was intended for the construction of the balconies. The trial judge said he was satisfied that if Halpern Glick had been involved in the design of the balconies, Mr Welch would have been aware of that fact before he saw the fabricated steel [156].
Secondly, if it was Mr Drexel's intention to have Halpern Glick provide a structural design for the balconies, it is likely that some mention would have been made of that in his correspondence to Halpern Glick in December 1980, at which time the balconies were being developed [157]. Thirdly, the trial judge regarded Mr Drexel's evidence that he did not feel it necessary to have Halpern Glick carry out the kinds of engineering calculations done in relation to other aspects of the work as supporting the view that Mr Drexel had obtained the information contained in drawing 15 before he went to Halpern Glick [158].
In my assessment, the established facts, objective probabilities and logic strongly favour a finding that the structural information in drawing 15 was provided by Halpern Glick. Halpern Glick was retained to provide engineering services for the project by 4 December 1980. It provided such services in the period leading up to the production of the drawings by Drexel London in March 1981. Mr Drexel obtained the structural information relating to the balconies from an engineer for use in the preparation of drawing 15. During the period from the appointment of Drexel London as architect for the project from around October 1980 until the production of the March 1981 drawings, there is no evidence of the involvement of any other engineer in the project. A project architect would be expected to seek structural advice from the project engineer. Indeed, Halpern Glick was retained on the recommendation of Mr Drexel [122].
The letter to which the trial judge referred at [130], being the letter of retainer of 7 December 1980, did not and would not be expected to identify all matters on which the engineer would be asked to provide advice. So much is apparent from a list prepared by Mr London identifying the many matters on which engineering advice would be required for the project (exhibit 1/1308 ‑ 1310). The list includes 'DECK STRUCTURE‑ SIZES AND BRACING AND FIXING OF STEEL AND TIMBER' (par 42 exhibit 42).
The undated site minute in which the design of the balconies is attributed to Halpern Glick was made in April 1982 some 24 years prior to trial. The failure to call the minute taker can have no material effect on the weight to be given to the business record. Mr Drexel was present at the meeting and he could be expected to know and remember at that time who supplied the structural information.
Moreover, the undated minute is consistent with the minutes on 7 April 1982 which record that Halpern Glick was to liaise closely with Phillips Engineering on tying and bolting the balconies to the existing building, and with Mr Welch's involvement on 8 April 1982. It is also relevant that Mr Welch's sketch is on all fours with the design in the Drexel sketch.
Mr Welch's evidence is consistent with Halpern Glick having prior involvement in providing structural information for the balconies:
Was it apparent to you when you were asked by Mr Bumstead to consider the situation with the wall plate that this steel structure hadn't been the subject of any previous engineering advice by Halpern Glick?‑‑‑I think by that stage somebody had told me that we were to be involved with it. I can't recall that. I would've made a lot more noise or reported a lot more extensively if I hadn't been satisfied that there was some involvement with the [steel] structure.
I don't quite understand that answer?‑‑‑Okay.
What would you have done if things had been different?‑‑‑If this steel structure had not been somehow approved or ‑ how can I explain ‑ if the structure was totally out of my scope or knowledge I would've put a lot more information on this site report, questioning it where it came from. By this time I recall having discussed the steel structure in‑house back at the office. Who I discussed that with and to the extent of the discussions I can't recall but I would've been writing here a non‑compliance steel structure had been erected and that it needed further investigation or words to that effect. I wouldn't have just tried to make something on site work. It's not the way I operate.
…
Do you recall having occasion to think, 'How come I haven't seen any drawings for this structure'?‑‑‑That would have occurred when the steel first appeared on site.
Did you ask anyone about that?‑‑‑And I would have asked back then. I did ask. I recall asking ‑ certainly I asked people on site where it had come from because it wasn't on any of the drawings that I was carrying and that's when I was directed to the architect's drawings as a reference and I recall from that that I went back to the office and discussed it with somebody back at the office. I can't recall exactly what was decided but I would suggest that it must have been approved in some manner because it wasn't pulled down or there was no other documentation given to me to qualify it (ts 904). (emphasis added).
When asked about his sketch of 8 April 1982 Mr Welch said:
With the design of the connections and what have it, I would've taken this back to the office and got it approved at the office either by Peter Blake or Jack Scott or another engineer (ts 900). (emphasis added)
Unsurprisingly given the events occurred some 25 years before trial, the engineers from Halpern Glick (Messrs Lemish, Blake and Scott) were not able to affirmatively deny by way of recollection that the structural information was obtained from Halpern Glick. In any event, it is apparent from Mr Welch's evidence that other engineers from Halpern Glick provided advice on matters relating to the project.
A matter weighing against acceptance by the trial judge of Mr Drexel's evidence was the absence of a record of structural calculations in Halpern Glick's possession relating to the balconies, from which he inferred none were done. The evidence establishes that the structural information for the balcony was requested and provided informally to Mr Drexel. The only written record of, and relating to, the information is that recorded by Mr Drexel in his notes of what he was told by the engineer. The advice was neither requested nor confirmed in writing. The lack of formality suggests the engineer who supplied the information took a different view than the trial judge as to the need for lengthy calculations.
That different view is consistent with Mr Drexel's evidence that he did not feel it was necessary for the engineer to do the sorts of engineering calculations that Halpern Glick did on other structural work undertaken at Drexel London's request prior to the production of the March 1981 drawings [158]. Mr Drexel was a long‑time consumer of engineering services with both training and experience in structural matters. He later made his own judgment call on a number of matters on which the engineer had advised in relation to the balconies. The absence of the sort of engineering calculations and structural drawings otherwise done by Halpern Glick is consistent with the surrounding circumstances. Further, the informality could explain why Mr Welch, the site inspector, was unaware of Halpern Glick's involvement until the delivery of the steel for the balcony.
A finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are even strongly against the finding of fact: Abalos v Australian Postal Commission (1990) 171 CLR 167.
If the estimate of the trial judge of a witness forms any substantial part of the judge's reasons for a finding of fact, an appellate court cannot interfere unless it can be shown that the judge has failed to use or has misused his or her advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable or that the finding of fact is affected by an identified error of principle or demonstrated mistake or misapprehension about relevant facts: Devries v Australian National Railways Commission (1993) 177 CLR 472, 479; Fox v Percy (2003) 214 CLR 118; Rosenberg v Percival (2001) 205 CLR 434.
In this context, credibility covers all matters personal to the witness including their honesty and reliability. The trial judge accepted Mr Drexel's honesty but doubted his reliability to such an extent he was not prepared to give his evidence any weight. That conclusion was based on the trial judge's observation and impression of Mr Drexel as a witness and that assessment formed an important part of the trial judge's reasons.
The trial judge did not make a negative finding that Mr Drexel did not obtain the structural information from Halpern Glick. The trial judge simply declined to make a positive finding that he did obtain it from Halpern Glick on the basis that Drexel London and the injured claimants had not discharged their onus [168]. However, the principles applicable to a finding of fact are equally applicable in those circumstances: Rosenberg v Percival [17], [27], [92]; Fractionated Cane Technology Ltd v Ruiz‑Avila [1988] 2 Qd R 610.
In my assessment, the trial judge's failure to make a positive finding as to Halpern Glick's involvement is materially affected by his misunderstanding of the evidence of Mr Blake and Mr Welch as to what they meant by tied back by joists, its correlation with the Drexel London design and the lack of calculations associated with the approval of Mr Welch's sketch. That failure entitles this court to intervene. The established facts, objective probabilities and logic favour acceptance of Mr Drexel's evidence that the structural information for the balconies was provided by Halpern Glick.
For these reasons I would uphold ground 6 of the Drexel London appeal and ground 2 of the injured claimants appeal.

Halpern Glick's failure to identify design breach - redundancy (injured claimants' ground 4 as amended)

The injured claimants seek a finding that in April 1982 Halpern Glick negligently failed to identify that the design of the balcony failed to provide adequate bracing of the central column.
The relevant legal principles are not in dispute. An engineer owes a duty to exercise reasonable care and skill in the provision of professional services. The duty is owed not only to the client but to other classes of persons who might foreseeably suffer injury as a result of the failure to exercise reasonable care. The terms of the contract of retainer between the engineer and its client are relevant to, but not necessarily determinative of, the scope of the engineer's tortious duties. In Voli v Inglewood Shire Council (1963) 110 CLR 74, Windeyer J (with whom Dixon CJ and Owen J agreed) said in a case involving the collapse of a stage in a hall, the plans and specifications of which had been designed by an architect:
First, neither the terms of the architect's engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless his contract with the building owner is not an irrelevant circumstance. It determines what was the task upon which he entered. If, for example, it was to design a stage to bear only some specified weight, he would not be liable for the consequences of someone thereafter negligently permitting a greater weight to be put upon it (85).
The focus must be on the responsibilities actually assumed by the engineer not just those cast upon him or her by the terms of the contract: Bryan v Maloney (1995) 182 CLR 609, 619 ‑ 620; Perre v Apand Pty Ltd (1999) 198 CLR 180, 228; Bailey v Redebi Pty Ltd (1999) Aust Torts Reports 81-523 [45].
As to the standard of care, architects and engineers are required to exercise the care and skill usual among architects and engineers practising their profession: Voli (84).
This ground of appeal has to be considered against the unchallenged findings of the trial judge that Halpern Glick did not have a general retainer but was appointed as a consultant to be called upon as and when its services were required [296], was not asked to check the balcony drawings or (with one exception) to provide any of the missing details [175], and had no input into the shop drawings for the balconies [195].
However, the trial judge found that Mr Welch attended at site on 8 April 1982 as a result of the decision recorded in the minutes of 7 April 1982 to the effect that Halpern Glick and Phillips Engineering were to liaise closely on tying and bolting the balconies back to the existing building to ensure permanent security [194]. Further, the trial judge accepted Mr Welch's evidence generally. It is apparent from his evidence detailed earlier that Halpern Glick assumed responsibility for considering and advising on the adequacy of the design of the restraint of the central column [192].
Mr Welch had attended on site on 8 April 1982 to address a difficulty being experienced in securing the horizontal bracing to the brick wall. At that time he noticed there was no system for attaching the returns of the steel beams from the eastern and western sides of the balconies. He provided that missing detail. He also noted that the central column was not tied back with steel rods but was to be tied back by the joists. He did not have the expertise to form an opinion as to the suitability of that course, which he discussed with an engineer at Halpern Glick, who he identified as Mr Blake (ts 900, 906). The only available inference is that that method of tying back the central column by joists was deemed suitable. That inference is supported by the evidence of Mr Blake himself who described tying back the central column by joists as legitimate (ts 884). Halpern Glick did not advise Lavender Bay that the design was deficient in failing to adequately secure the central column.

Broadly speaking, the injured plaintiffs in their respective actions at trial pursued six groups of defendants. Groups one to three included:
•Mr Black, as first defendant, who was occupier of the strata unit and host of the party when the first floor outdoor balcony, on which 35 of his guests were standing, collapsed. Mr Black had been occupier of the premises since 1984 as a tenant of the second defendant.
•Ash Investments, as second defendant, as owner of the strata unit purchased in 1984 from then owner/builder Lavender Bay. Ash Investments acted as trustee of the Black Family Trust.
•The body corporate for Strata Plan No 11175, namely the Owners of the Old Soap Factory (the Strata Company), as third defendant.
The injured plaintiffs' cases at trial against the occupier and registered proprietor (first and second defendants) failed, on a basis that there was insufficient evidence that they knew or should have been aware that there was any particular risk or danger, as regards the structurally insecure condition of the balcony - due to the unobserved rotting of some timber components before 31 December 1996. There was no appeal against the trial judge's dismissal of the cases brought by the injured plaintiffs against the owner and the occupier.
The plaintiffs' action against the Strata Company was also dismissed by the trial judge. The cause of action raised a case of strict liability upon an alleged breach of statutory duty, said to confer a private right of action upon the injured plaintiffs, by reason of the breach of s 35(1)(c) of the Strata Titles Act 1985 (WA) (as amended) (the New Strata Titles Act), and reliant upon principles established by the High Court of Australia since O'Conner v SP Bray Ltd (1937) 56 CLR 464, 477 ‑ 478 (Dixon CJ).
It is a curiosity that the injured plaintiffs' strict liability case for breach of statutory duty was grounded upon a bizarre (but legally correct) premise (and unchallenged on appeal) that a private outdoor first floor balcony area of the strata title unit which had collapsed, was to be assessed as 'common property' - in accordance with the definition of that term under the New Strata Titles Act - and thereby calling into relevance the managerial involvement of the Strata Company, as regards what was then assessed as common property.
At [520] of the trial judge's reasons, he rejected the plaintiffs' claim against the Strata Company, on the basis that:
I do not consider that the Strata Company was obliged to have an inspection carried out by a person whose level of expertise was such as to be able, not only to recognise that oregon had been used in the balcony, but also to appreciate the significance of that fact [520].
The injured plaintiffs challenged the trial judge's exculpation conclusion as regards the Strata Company on the appeal. That was resisted by the Strata Company. But the Strata Company went further, to contend by notice of contention, that the trial judge had been in error in concluding that s 35(1)(c) of the New Strata Titles Act conferred any private rights of action for breach of statutory duty either generally, or at least in respect of the injured plaintiffs who had brought suit for their injuries on the basis of being visitors to the strata unit, when the balcony had collapsed on 31 December 1996. The learned trial judge found it unnecessary to consider that legal question. I agree with McLure JA that the Strata Company's notice of contention must succeed on the basis that there is no private right of action for statutory duty arising in favour of the injured plaintiffs by reason of s 35(1)(c) of the New Strata Titles Act.

The other defendants

The injured plaintiffs successfully pursued as fourth defendant, the City, based upon the alleged breach of the City's common law duty of care said to have been owed to the plaintiffs to inspect the converted and completed strata units for consistency as between what had been built and the building plans and specifications which the City had approved. The trial judge's findings against the City are at [331] ‑ [376] of his Honour's reasons.
A Certificate signed off by the City as to the above issue, is dated 8 December 1982, some 14 years prior to the balcony collapse incident. The terms of the City's Certificate at [332] of his Honour's reasons, relevantly state that the City:
HEREBY CERTIFIES THAT:-
1.The building shown on the plan has been inspected and that it is consistent with the building plans and specifications in respect thereof that have been approved by the Local Authority.
2.The building, in the opinion of the local authority, is of sufficient standard and suitable to be divided into lots pursuant to the Strata Titles Act, 1966.
The injured plaintiffs' case against the City, raising as it did an allegation of common law negligence (not breach of statutory duty), was that the Certificate issued under s 5(6)(c) of the Strata Titles Act 1966 (WA) (the 1966 Strata Act) upon completion of the units, was false - as regards the issue of consistency.
The injured plaintiffs contended at trial that there had been no sufficient inspection to justify the assertion in the Certificate that the completed building resulting from the conversion of the Old Soap Factory was 'consistent' with the building plans and specifications approved by the City, since there had been an unauthorised substitution of the specified hardwood (jarrah), with the softwood (oregon) for the timber joists and plates that were used as the beams in the outdoor balconies.
The common law negligence case, as contended for on behalf of the injured plaintiffs against the City, was that a reasonably careful inspection of the Old Soap Factory, conducted to ascertain that it was consistent with approved plans and specifications, would have revealed that wooden joists and plates, with which the outside balconies had been constructed by Lavender Bay, were of oregon not jarrah, contrary to what had been specified and approved by the City in the specifications.
Prior to issue of the Certificate in December 1982, the City's inspector, a Mr Monaco, had carried out a limited inspection of the Old Soap Factory conversion. Mr Monaco's inspection did not reveal that oregon timber had been substituted for jarrah in the balcony joists and plates, in lieu of the specified jarrah. Had Mr Monaco noticed the substitution of softwood for hardwood, his evidence at trial was that he would not have regarded such a substitution as appropriate. A nomination of a hardwood timber, ie jarrah, was in the specifications. This was a structural matter. So much was uncontroversial at trial and on appeal.
What was more controversial at trial, however, was the extent of any inspection required, prior to the City's certification under s 5(6)(c) of the 1966 Strata Act. The trial judge records Mr Monaco's observation that 'it would not be possible to carry with me the plans and specifications for a building as large and as complex as the Old Soap Factory' [347]. Thus, the inspection was made without the plans and specifications. Like the trial judge, my assessment, were I required to make a determination upon the issue of breach of a (found) duty of care, would be that such a response is wholly inadequate on behalf of the City. However, before breach analysis even arises, anterior considerations over determining an existence or otherwise of a common law duty of reasonable care by the City to the injured plaintiffs needs to be resolved. That is the significant issue of the appeal that I address, below.
The fifth defendant in the litigation was the architectural firm, Drexel London, retained by Lavender Bay, against whom the trial judge found that liability had been established for common law negligence, essentially on a two‑fold basis, as articulated at [246] ‑ [250] of his Honour's reasons. This was on the basis of a design deficiency as regards failure to incorporate in the design of the balconies a sufficient degree of 'redundancy' (in a context of the present case - meaning essentially, a failure to allow for some surplus load‑bearing capacity in the balcony structure), and as regards certain failures associated with the unauthorised substitution of oregon for jarrah: see [208] and [285] ‑ [289] of his Honour's reasons.
His Honour dismissed the injured plaintiffs' claim in common law negligence against the sixth defendant, consultant engineers, Halpern Glick, who had been retained by Drexel London to assist in limited aspects of the Old Soap Factory conversion project. The injured plaintiffs had contended against Halpern Glick, that it had failed to identify that the design of the balcony failed to provide stabilising bracing for the (vertical) central column of the balcony and so, in effect, to supply a required degree of redundancy that was missing in the design: see his Honour's reasons [291] ‑ [330], especially at [295](b), where his Honour said:
[I]t is true that the design of the balcony depicted in drawing 15 made no express provision for bracing the central column of the balcony in such a way as to connect the column to the northern wall of the building [297].
It is clear that when Mr Welch [of Halpern Glick] visited the site on 8 April 1982, he appreciated the need to provide this link. On his sketch he noted that the central column was to be 'tied back by joist'. I accept the evidence of Mr Blake [of Halpern Glick] that this would have been an acceptable method of securing the central column. The note therefore served as an advice to Mr Bumstead that the column should be secured in this way [298]. (my emphasis in italics)
His Honour continued:
In these circumstances, I consider that Halpern Glick cannot be held responsible for the fact that the design of the balcony did not include any detail for the tying back of the central column to the north wall of the building. The claim against Halpern Glick must therefore be dismissed [302].
But, in my assessment, the notion of the (vertical) central column for the balcony being 'tied back by joist', in circumstances where jarrah joists (which became oregon joists) were the horizontal members which directly connected from the exterior wall of the unit to the vertical central column of the balcony, cannot be accepted as providing any relevant form of bracing or securing. In fact, the obscure notion of something being 'tied back by joist' thereby providing bracing and, thus, a required measure of additional load‑bearing capacity for the outside wooden joist constructed balcony - presents to me as a complete physical non sequitur.
There was no challenge at the appeal to the presence of this acknowledged design deficiency as regards a missing redundancy factor, concerning drawing 15. The design deficiency, as regards a need for bracing of the vertical central column of the balconies, was not addressed sufficiently or at all by the central column (somehow?) being 'tied back by joist'. A physical connection by joist already existed. What was required was some additional securing or bracing mechanism for the central column. Mr Welch, by his sketch (prepared when he visited site on 8 April 1992, as the balconies were nearing completion), did not provide any 'link' that furthered or addressed the issue of need for bracing or securing of the central column of the balcony. As a result, the appeal against Halpern Glick must be allowed.
That broadly summarises the claims by the plaintiffs against the six classes of defendant at trial.
As to the issue of causation of damage, the finding by the primary judge (at [94]) dealing with the causes of the collapse of the balcony was not challenged at the appeals. His Honour concluded:
The primary causes of the collapse were therefore:
(1)the use of oregon for the joists and supporting plates; and
(2)the inadequate design of the southern supporting structure [94].
I also refer to his Honour's surrounding observations at [84], [89] and [92] on that issue.
With those observations, I am able to address ground 1 of the City's appeal, challenging the trial judge's conclusion that a common law duty of reasonable care was owed by the City to the injured plaintiffs, arising out of the circumstances in which the City's Certificate of 8 November 1982 had been issued.

Ground 1 of the City's appeal

The common law duty of reasonable care, as is pursued by the plaintiffs against the City, is formulated on a basis that it arises from the circumstances in which, as at 8 November 1982, the City, pursuant to s 5(6)(c) of the 1966 Strata Act, issued a Certificate in the terms I have set out, some 14 years prior to the collapse incident.
The following considerations, from the overall factual circumstances of the December 1996 incident, assessed in the context of the statutory framework of the 1966 Strata Act as a whole, together bring me to a conclusion that ground 1 of the City's appeal should be dismissed. Like the trial judge, my view is that the City, on analysis, did owe a common law duty of reasonable care to the injured plaintiffs, who were together present as visitors gathered on the first floor outside balcony of strata unit No 1, on New Year's Eve 1996:
(a)There is no difficulty in a conclusion that the injured plaintiffs fall within a foreseeable class of person to whom physical injury of the kind sustained would be envisaged by the City, at the time the Certificate was issued in November 1982. Foreseeability as to the harmed plaintiffs as a class is essential. But that of course is not the sole ingredient in making good a duty of reasonable care.
(b)The range of foreseeable plaintiffs likely to sustain injury by harm of the character encountered here, embraces, as a class, visitors to the strata unit, injured when the outdoor balcony suddenly gave way. That class of plaintiff is not unduly broad or ill defined.
(c)The loss sustained here is in the character of personal injury by trauma. This is not a case of pure economic loss - to which more onerous or constricting policy considerations may apply.
(d)Unlike for the failed case against the third defendant (the Strata Company), which was based upon arguments of strict liability for breach of a private statutory duty said to arise from the New Strata Titles Act, the plaintiffs do not contend for any private statutory duty in their favour as against the City. Nor, in prevailing circumstances, would I have found such a private cause of action in their favour, arising under that Act. The ramifications of such a conclusion are so significant (ie strict liability), that legislation argued to found such private rights of action needs to be assessed as sufficiently explicit to render the conclusion as to a private right of action, and as to the class of person to whom such a private duty is owed, very clear. That is not the case with s 5(6)(c) of the 1966 Strata Act.
Absence of a private right of action for strict liability in the injured plaintiffs is another relevant consideration in a distinct exercise of ascertainment of a common law duty of reasonable care. But, again, that aspect is not, of itself, determinative of the issue. Axiomatically, the lesser threshold of (reasonable) care raises different considerations. The statute is the setting for a common law duty, rather than its source: see Stuart v Kirkland-Veenstra [2009] HCA 15 [130] (Crennan and Kiefel JJ).
(e)There can be circumstances in which a common law duty of reasonable care is excluded by statute, either explicitly, or implicitly: see Sullivan v Moody (2001) HCA 59; (2001) 207 CLR 562. This is not such a case.
(f)Nor does this case present as a scenario of omission or nonfeasance by a public authority (in the position of the City) - a factual consideration highly relevant to the ascertainment of a common law duty of reasonable care, in circumstances where a statutory power or function has been conferred, but is not exercised. To the contrary, the present is a more routine case over positive acts of misfeasance raised as against the City. Cases of misfeasance against public authorities - where powers, functions or duties have been actively exercised, are less problematic in terms of the ascertaining of an existence of a duty of reasonable care by a public authority: Stuart v Kirkland-Veenstra at [117] ‑ [118] (Gummow, Hayne and Heydon JJ).
(g)In reviewing the global statutory framework which sets the scene for the evaluation of a common law duty, it must be accepted that s 5(6)(c) of the 1966 Strata Act is not wholly concerned from a policy perspective with the issue of public safety. But that is not to say that the issue of public safety does not remain an inseparable consideration, inherent in any process of building inspection and the next stage of certification by a public body - for consistency as between approved building plans and specifications with the finished product. Public safety is not a consideration to be undersold in an analysis of evident purposes underlying s 5(6)(c), as the City, in effect, submitted at the appeal. Public safety is, in my view, a consideration inherent in the regulatory context for elevated structures that will potentially be used for human habitation for generations of occupant. Safety in occupation, over time, is an important component policy consideration, also to be weighed in an overall analysis of the statutory framework of the 1966 Strata Act, as a whole.
(h)Factually, what falls for consideration at this level of the ascertainment of a common law duty of reasonable care, are all relevant circumstances surrounding the inspection of the building, from a perspective of ascertaining the consistency of the constructed building against the plans and specifications, earlier submitted to and approved by the City. The issue of the Certificate by the City was a culmination of a series of preceding acts, all to be evaluated. This calls for a perspective wider than a bare evaluation of falsity in aspects of the Certificate issued by the City.
(i)It is correct that there has been no suggestion here that the injured plaintiffs, as visitors to the strata unit, placed specific or knowing reliance upon the City's Certificate - issued some 14 years previous - concerning consistency of the completed building with plans and specifications as lodged with and approved by the City. Nevertheless, in cases of this genre, absence of direct reliance is no obstacle to finding a duty of reasonable care. No doubt each injured visitor made an assumption in a very general sense by entry, that public authorities responsible for monitoring the conversion of the building and its plans would have competently gone about completing and discharging their responsibilities. This is not a case of negligent misstatement against the City, like MLC v Evatt (1968) 122 CLR 556 or Shaddock and Associates Pty Ltd v Parramatta City Council [No 1] (1980-81) 150 CLR 225 raising direct reliance requirements, as regards advice. Rather, this is a case of orthodox misfeasance in the active exercise of a public power. Nor is it a case of pure economic loss where, as I have observed, reliance, particularly in a circumstance of prevailing vulnerability in a plaintiff, is material as a consideration. This case presents more, in my view, as of an orthodox class as was considered by Mason J (as he then was) in Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424, at 464, where his Honour observed:
Reliance or dependence in this sense is in general the product of the grant (and exercise) of powers designed to prevent or minimize a risk of personal injury or disability, recognized by the legislature as being of such magnitude or complexity that individuals cannot, or may not, take adequate steps for their own protection. This situation generates on one side (the individual) a general expectation that the power will be exercised and on the other side (the authority) a realization that there is a general reliance or dependence on its exercise of power.
(j)The formulation of the precise duty of reasonable care that the injured plaintiffs contend was owed to them by the City here, is a duty to inspect the building for the purpose of determining that it was consistent with the approved plans and specifications. That formulation is not in terms so general as to be unhelpful, or at too high a level of abstraction: Cole v Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) CLR 469 [57], [81] (per Gummow & Hayne JJ).
(k)Nor, in my assessment, is a converse parameter infringed in that formulation of the duty. The formulation does not, in my view, carry with it a level of narrowness or confinement so as to, in effect, pre‑empt a later application of the criterion of reasonableness under the Shirt calculus in a manner which is fair to the City, at the stage of breach evaluation, once this duty of reasonable care is found; compare par 85 of the joint reasons of Gummow, Hayne and Heydon JJ, in Kirkland‑Veenstra.
At a stage of breach analysis, numerous distinct considerations arise, including magnitude of risk, the response to the risk, as well as considerations applicable to the limited resources of a public authority, as evaluations of fact. But I see no 'virtually automatic' 'slide' into a finding of negligence (per McHugh J in Tame [99]) in the formulation of this duty of reasonable care. In an assessment of all circumstances surrounding the inspection and ensuing issue of the Certificate by the City, it no doubt would be properly weighed in consideration that the City's inspector did not take with him the relevant plans and specifications to the site of the Old Soap Factory as he made the inspection. His capacity to inspect effectively was thereby fettered from the outset, rendering it difficult to argue that reasonable efforts were made.
The unauthorised substitution of jarrah hardwood timber with oregon softwood that occurred, created a significant structural deficiency in the constructed outdoor first floor balcony. That unauthorised balcony timber substitution should have been apparent to an inspector's naked eye, during a competent inspection. A comparative analogy to the obviousness of the difference between red wine and white wine, as was invoked by Professor London at trial (recorded by the trial judge at [223] of his reasons), remains illuminating for me as to what a competent inspection by the City's inspector ought to have brought into focus.
There remains with this duty as formulated, in my view, sufficient latitude and scope at a breach level analysis applying the Shirt calculus, for a court to recognise and excuse (as is appropriate) reasonable, albeit imperfect, endeavours towards meeting this formulated duty of reasonable care by the City, within its overall inspection and certification conduct.
(l)On my analysis (bearing in mind capacity for appeal against a refusal by the City to issue the Certificate), refusal of the Certificate by the City, grounded upon unauthorised substitution of oregon timber for jarrah as a structural issue, was likely, in my assessment to have been a significant negative for Lavender Bay. Refusal would have interrupted the processes pursuant to which separate certificates of title were sought to be obtained by Lavender Bay, in the course of its redevelopment and strata titling subdivision by conversion of the Old Soap Factory to individual strata units with separate certificates of title. The City appears to have lacked a specifically conferred power, under the 1966 Strata Act, to directly compel a timber substitution by Lavender Bay, of the unauthorised softwood timber. Nevertheless, I assess the likely commercial effects of a denial by the City of the Certificate, on this basis, to be adverse and significant for Lavender Bay's commercial interests as a developer. Nor is it easy to envisage how any appeal by Lavender Bay could hope to succeed against the City's denial of a Certificate, in circumstances where the adverse structural ramifications of an unauthorised substitution of oregon for jarrah was properly articulated.
Essentially then, the City in commercial terms held, in my assessment, a 'whip‑hand' here upon a refusal of its Certificate, until the unauthorised substitution of softwood for hardwood issue was properly addressed and corrected by Lavender Bay. This afforded the City, in my view, the required element of potential control to generate a correction of the unauthorised balcony timber situation which had arisen. Existence of the element of effective control in the City over the problematic issue: see Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 [151] (Gummow and Hayne JJ); and Kirland‑Veenstra [113], [114] (Gummow, Hayne and Heydon JJ), in circumstances where power is being affirmatively exercised by the City, favours the ascertainment of this duty of reasonable care in the City, towards these injured plaintiffs.
(m)Reasonableness is now another vital touchstone in any assessment of the appropriateness of an imposition of a duty of reasonable care, as formulated: (see Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317 [9], [12], [14], [35] (Gleeson CJ), [109] (McHugh J), [185] (Gummow & Kirby JJ), [272] (Hayne J), and [331] (Callinan J)).
In weighing considerations of reasonableness surrounding the potential imposition of this duty of reasonable care, in the overall factual and statutory surrounding contexts, I factor in a significant and obvious potential here for grave injury to anyone subjected to the trauma of a 5 m balcony collapse. It is fortunate indeed that this incident is not one where the court is faced with a more distressing scenario of deaths or catastrophic injuries to multiple persons, in the wake of such a balcony collapse - a wholly unacceptable outcome as regards building standards in Australia, and against which dedicated public competence in the exercise of statutory powers cannot be an unreasonable imposition.

These are my reasons for dismissing ground 1 of the City's appeal and as to my correlatively preferred equal apportionment of responsibility as between the City, Halpern Glick and Drexel London.
Otherwise, I entirely agree with the reasons of McLure JA.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DREXEL LONDON (a firm) -v- GOVE (BLACKMAN) [2009] WASCA 181 (S)

CORAM: McLURE P

HEARD: 6-8 MAY 2009 & 7 DECEMBER 2009

DELIVERED : 21 OCTOBER 2009

SUPPLEMENTARY
DECISION :16 DECEMBER 2009

FILE NO/S: CACV 16 of 2007

BETWEEN: DREXEL LONDON (a firm)
Appellant
AND
SHARON LEE GOVE (BLACKMAN)
First Respondent
BARNABY PIERRE COLIN WOOD
Second Respondent
PAUL CHARLES BLACKMAN
Third Respondent
KYLE THEODORE PETERS
Fourth Respondent
MICHAEL ANTONY KUBA
Fifth Respondent
SHELLEY MERRILYN GOLLAN
Sixth Respondent
MARYANNE FIORE
Seventh Respondent
MIA LEE FARINOSI
Eighth Respondent
TINA ELIZABETH D'CASTRO (ACKERMAN)
Ninth Respondent
JULIETTE CHLOE VIRGINIE WOOD
Tenth Respondent
IAN ROBERT MICHEL REGNARD
Twelfth Respondent
DANNIELLE DORISSE ELIZABETH BECKWITH
Thirteenth Respondent
NIGEL KENNETH GILES
Fourteenth Respondent
NEIL ALEXANDER GRANT
Fifteenth Respondent
ROBYN LESLEY DREXEL
Sixteenth Respondent
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Seventeenth Respondent
HALPERN GLICK PTY LTD (ACN 008 729 204)
Eighteenth Respondent

FILE NO/S :CACV 20 of 2007

BETWEEN :CITY OF FREMANTLE
Appellant
AND
SHARON LEE GOVE (BLACKMAN)
First Respondent
BARNABY PIERRE COLIN WOOD
Second Respondent
PAUL CHARLES BLACKMAN
Third Respondent
KYLE THEODORE PETERS
Fourth Respondent
MICHAEL ANTONY KUBA
Fifth Respondent
SHELLEY MERRILYN GOLLAN
Sixth Respondent
MARYANNE FIORE
Seventh Respondent
MIA LEE FARINOSI
Eighth Respondent
TINA ELIZABETH D'CASTRO (ACKERMAN)
Ninth Respondent
JULIETTE CHLOE VIRGINIE WOOD
Tenth Respondent
DEAN DAVID HOLM GRAHAM
Eleventh Respondent
IAN ROBERT MICHEL REGNARD
Twelfth Respondent
DANNIELLE DORISSE ELIZABETH BECKWITH
Thirteenth Respondent
NIGEL KENNETH GILES
Fourteenth Respondent
NEIL ALEXANDER GRANT
Fifteenth Respondent
ROBYN LESLEY DREXEL
Sixteenth Respondent
MARC DREXEL
Seventeenth Respondent
DREXEL LONDON (a firm)
Eighteenth Respondent

FILE NO/S :CACV 114 of 2007

BETWEEN :SHARON LEE GOVE (BLACKMAN)
First Appellant
BARNABY PIERRE COLIN WOOD
Second Appellant
PAUL CHARLES BLACKMAN
Third Appellant
KYLE THEODORE PETERS
Fourth Appellant
MICHAEL ANTONY KUBA
Fifth Appellant
SHELLEY MERRILYN GOLLAN
Sixth Appellant
MARYANNE FIORE
Seventh Appellant
MIA LEE FARINOSI
Eighth Appellant
TINA ELIZABETH D'CASTRO (ACKERMAN)
Ninth Appellant

JULIETTE CHLOE VIRGINIE WOOD
Tenth Appellant
DEAN DAVID HOLM GRAHAM
Eleventh Appellant
IAN ROBERT MICHEL REGNARD
Twelfth Appellant
DANNIELLE DORISSE ELIZABETH BECKWITH
Thirteenth Appellant
NIGEL KENNETH GILES
Fourteenth Appellant
NEIL ALEXANDER GRANT
Fifteenth Appellant
MARC DREXEL
Sixteenth Appellant
ROBYN LESLEY DREXEL
Seventeenth Appellant
AND
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
First Respondent
RICHARD ASH BLACK
Second Respondent
ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Third Respondent
DREXEL LONDON (A FIRM)
Fourth Respondent
CITY OF FREMANTLE
Fifth Respondent
HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :TEMPLEMAN J
Citation  :GOVE -v- BLACK & ORS [2006] WASC 298
File No  :CIV 2375 of 1997, CIV 2370 of 1997, CIV 2371 of 1997, CIV 2373 of 1997, CIV 2374 of 1997, CIV 2376 of 1997, CIV 2377 of 1997, CIV 2378 of 1997, CIV 2381 of 1997, CIV 2382 of 1997, CIV 2398 of 1997, CIV 2411 of 1997, CIV 2412 of 1997, CIV 2413 of 1997, CIV 2414 of 1997, CIV 2415 of 1997, CIV 1202 of 1998

Catchwords:

Orders - Costs - Turns on own facts

Legislation:

Nil

Result:

Orders to be made

Category: B

Representation:

CACV 16 of 2007

Counsel:

Appellant:     Mr R A Corboy
First Respondent           :     Mr G Porter
Second Respondent       :     Mr G Porter
Third Respondent         :     Mr G Porter
Fourth Respondent        :     Mr G Porter
Fifth Respondent          :     Mr G Porter
Sixth Respondent          :     Mr G Porter
Seventh Respondent      :     Mr G Porter
Eighth Respondent        :     Mr G Porter
Ninth Respondent         :     Mr G Porter
Tenth Respondent         :     Mr G Porter
Twelfth Respondent      :     Mr G Porter
Thirteenth Respondent   :     Mr G Porter
Fourteenth Respondent :     Mr G Porter
Fifteenth Respondent     :     Mr G Porter
Sixteenth Respondent     :     Mr D L Murphy
Seventeenth Respondent :     No appearance
Eighteenth Respondent :     Mr S F Popperwell

Solicitors:

Appellant:     Jackson McDonald
First Respondent           :     Talbot Olivier
Second Respondent       :     Talbot Olivier
Third Respondent         :     Talbot Olivier
Fourth Respondent        :     Bradley Bayly Legal
Fifth Respondent          :     Bradley Bayly Legal
Sixth Respondent          :     Bradley Bayly Legal
Seventh Respondent      :     Bradley Bayly Legal
Eighth Respondent        :     Talbot Olivier
Ninth Respondent         :     Bradley Bayly Legal
Tenth Respondent         :     Talbot Olivier
Twelfth Respondent      :     Talbot Olivier
Thirteenth Respondent   :     Bradley Bayly Legal
Fourteenth Respondent :     Talbot Olivier
Fifteenth Respondent     :     Talbot Olivier
Sixteenth Respondent     :     Mony de Kerloy
Seventeenth Respondent :     DibbsBarker
Eighteenth Respondent :     Pynt & Partners

CACV 20 of 2007

Counsel:

Appellant:     Mr J Eller
First Respondent           :     Mr G Porter
Second Respondent       :     Mr G Porter
Third Respondent         :     Mr G Porter
Fourth Respondent        :     Mr G Porter
Fifth Respondent          :     Mr G Porter
Sixth Respondent          :     Mr G Porter
Seventh Respondent      :     Mr G Porter
Eighth Respondent        :     Mr G Porter
Ninth Respondent         :     Mr G Porter
Tenth Respondent         :     Mr G Porter
Eleventh Respondent     :     Mr G Porter
Twelfth Respondent      :     Mr G Porter
Thirteenth Respondent   :     Mr G Porter
Fourteenth Respondent :     Mr G Porter
Fifteenth Respondent     :     Mr G Porter
Sixteenth Respondent     :     Mr D L Murphy
Seventeenth Respondent :     Mr D L Murphy
Eighteenth Respondent :     Mr R A Corboy

Solicitors:

Appellant:     John Eller
First Respondent           :     Talbot Olivier
Second Respondent       :     Talbot Olivier
Third Respondent         :     Talbot Olivier
Fourth Respondent        :     Bradley Bayly Legal
Fifth Respondent          :     Bradley Bayly Legal
Sixth Respondent          :     Bradley Bayly Legal
Seventh Respondent      :     Bradley Bayly Legal
Eighth Respondent        :     Talbot Olivier
Ninth Respondent         :     Bradley Bayly Legal
Tenth Respondent         :     Talbot Olivier
Eleventh Respondent     :     Bradley Bayly Legal
Twelfth Respondent      :     Talbot Olivier
Thirteenth Respondent   :     Bradley Bayly Legal
Fourteenth Respondent :     Talbot Olivier
Fifteenth Respondent     :     Talbot Olivier
Sixteenth Respondent     :     Mony de Kerloy
Seventeenth Respondent :     Mony de Kerloy
Eighteenth Respondent :     Jackson McDonald

CACV 114 of 2007

Counsel:

First Appellant              :     Mr G Porter
Second Appellant          :     Mr G Porter
Third Appellant            :     Mr G Porter
Fourth Appellant           :     Mr G Porter
Fifth Appellant             :     Mr G Porter
Sixth Appellant             :     Mr G Porter
Seventh Appellant         :     Mr G Porter
Eighth Appellant           :     Mr G Porter
Ninth Appellant            :     Mr G Porter
Tenth Appellant            :     Mr G Porter
Eleventh Appellant       :     Mr G Porter
Twelfth Appellant         :     Mr G Porter
Thirteenth Appellant     :     Mr G Porter
Fourteenth Appellant     :     Mr G Porter
Fifteenth Appellant       :     Mr G Porter
Sixteenth Appellant      :     Mr D L Murphy
Seventeenth Appellant   :     Mr D L Murphy
First Respondent           :     No appearance
Second Respondent       :     No appearance
Third Respondent         :     No appearance
Fourth Respondent        :     Mr R A Corboy
Fifth Respondent          :     Mr J Eller
Sixth Respondent          :     Mr S F Popperwell

Solicitors:

First Appellant              :     Talbot Olivier
Second Appellant          :     Talbot Olivier
Third Appellant            :     Talbot Olivier
Fourth Appellant           :     Bradley Bayly Legal
Fifth Appellant             :     Bradley Bayly Legal
Sixth Appellant             :     Bradley Bayly Legal
Seventh Appellant         :     Bradley Bayly Legal
Eighth Appellant           :     Talbot Olivier
Ninth Appellant            :     Bradley Bayly Legal
Tenth Appellant            :     Talbot Olivier
Eleventh Appellant       :     Bradley Bayly Legal
Twelfth Appellant         :     Talbot Olivier
Thirteenth Appellant     :     Bradley Bayly Legal
Fourteenth Appellant     :     Talbot Olivier
Fifteenth Appellant       :     Talbot Olivier
Sixteenth Appellant      :     Mony de Kerloy
Seventeenth Appellant   :     Mony de Kerloy
First Respondent           :     DibbsBarker
Second Respondent       :     Downings Legal
Third Respondent         :     Greenland Legal Pty Ltd
Fourth Respondent        :     Jackson McDonald
Fifth Respondent          :     John Eller
Sixth Respondent          :     Pynt & Partners

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

Nil

McLURE P: These reasons contain orders giving effect to the reasons for judgment in this matter delivered on 21 October 2009. On that date I ordered the parties to file minutes of proposed orders for which they contended. The orders were complied with.
Under cover of a letter dated 25 November 2009, the court provided to the parties a minute in each appeal which collected together all the proposed and contested orders. Because of delays in being able to re‑convene the coram, the parties agreed to make their oral submissions before me following which the orders would be made by the coram on the papers, including the transcript of oral submissions.
However, at the conclusion of oral submissions on 7 December 2009, only one issue was in contest. The parties consented to me determining that issue and formally making the orders in each appeal. The issue in contest is in the Drexel London appeal (CACV 16 of 2007). Halpern Glick sought an order that it pay one third of Drexel London's costs of the appeal to be taxed. Drexel London sought an order that Halpern Glick pay 40% of those costs. Having regard to the extent of the issues in contest between those two parties and the outcome, my assessment is that the order sought by Halpern Glick is appropriate.
The parties will be provided with an advance copy of these reasons before their delivery in open court on Wednesday 16 December 2009 at 9.30 am. If any party wishes to contend that any order hereunder is inconsistent with the oral submissions made on 7 December 2009, they should advise the Court of Appeal office in writing, with notice to all parties by 9.30 am on Monday 14 December 2009. In the absence of any such notice, I will on 16 December 2009 make the following orders:

CACV 114 of 2007 - Injured claimants appeal

(1)The appeal as against the sixth respondent be allowed.
(2)The appeals as against the first, second, third, fourth and fifth respondents be dismissed.
(3)The sixth respondent's cross appeal as against the fourth respondent be allowed.
(4)The sixth respondent's cross appeal as against the first and fifth respondents be dismissed.
(5)The first respondent's notice of contention be upheld.
(6)The judgment of Templeman J entered on 6 July 2007 be varied as follows:
(a)paragraph 4 be set aside and in lieu thereof judgment be entered as follows:
4.In each of the Group A and Group B Actions:
(1)judgment be entered for the plaintiffs against the fifth and sixth defendants for damages to be assessed;
(2)as between the fifth and sixth defendants, the damages are to be paid as to 50% by the fifth defendant and 50% by the sixth defendant;
(3)the plaintiffs' claims against each of the first, second, third and fourth defendants are dismissed;

(b)paragraph 5 be set aside and in lieu thereof judgment be entered as follows:
5. In the Drexel Action:
(1)judgment is to be entered for the plaintiff against the fifth defendant, for damages to be assessed;
(2)the plaintiff's claims against each of the first, second, third and fourth defendants are dismissed;
(3)judgment be entered for the fifth defendant in the third party proceedings;
(4)the third party do contribute to the extent of 50% of any damages awarded to the plaintiff following an assessment of the plaintiff's damages pursuant to paragraph 5(1) above and the costs of that assessment;

(c)paragraph 6 be set aside and in lieu thereof judgment be entered as follows:
6.In the Graham Action the plaintiff's claims against the first, second, third and fourth defendants are dismissed;

(d)paragraph 7 be set aside and in lieu thereof judgment be entered as follows:
7. The fifth and sixth defendants, jointly and severally, do pay the plaintiffs' costs of the Group A and Group B Actions to be taxed in accordance with the procedure and on the basis set out in paragraph 9;

(e)paragraph 8 be set aside and in lieu thereof judgment be entered as follows:
8. In the Drexel Action:
(1)the fifth defendant do pay the plaintiff's costs to be taxed in accordance with the procedure and on the basis set out in paragraph 9;
(2)the third party do contribute to the extent of 50% of any costs payable by the fifth defendant to the plaintiff pursuant to paragraph 8(1) above;

(f)paragraph 10 be set aside and in lieu thereof judgment be entered as follows:
10. The fifth and sixth defendants, jointly and severally pay the costs of the Group A plaintiffs of obtaining a transcript of the trial, such costs to be apportioned between the Group A plaintiffs in accordance with the Formula;

(g)paragraph 11 be set aside and in lieu thereof judgment be entered as follows:
11. As between the fifth and sixth defendants, the Group A and Group B plaintiffs' costs are to be paid as to 50% by the fifth defendant and 50% by the sixth defendant;

(h)paragraph 12(1) be varied by the addition of a new sub‑paragraph (d) as follows:
(d) the fourth defendant's costs of the action;

(i)paragraph 12(3) and 12(4) be varied so as to provide:
(3)Subject to paragraph (2) above, the costs of each of the first, second, third and fourth defendants are to be taxed as a single set of costs;
(4)Where costs were incurred by the first, second, third or fourth defendants in relation to individual claims, those costs shall be paid by the plaintiffs concerned;

(j)paragraph 13 be set aside;
(k)paragraph 15 be set aside;
(l)paragraph 16 be set aside;
(m)paragraph 26 be varied so as to provide:
26. The fourth defendant do pay the fifth defendant's costs of those proceedings insofar as those costs may have increased the fifth defendant's costs of the trial;

(n)paragraph 27 be varied to provide:
(1)The fifth defendant's contribution notices dated 23 December 1998 and 18 January 1999 against the first defendant be dismissed;
(2)The fifth defendant do pay the costs of the first defendant of those proceedings insofar as those proceedings may have increased the first defendant's costs of the trial to be taxed;

(o)a new paragraph 27A be inserted as follows:
(1)There be judgment for the fifth defendant against the sixth defendant in the fifth defendant's fourth party/contribution proceedings against the sixth defendant;
(2)As between the fifth defendant and the sixth defendant there be no order as to costs in the fifth defendant's fourth party/contribution proceedings against the sixth defendant and the fifth defendant's third party proceedings in the Drexel Action;

(p)paragraph 28 be varied so as to provide:
(1)The sixth defendant's contribution notices dated 13 October 2004 against the first, second, third and fourth defendants are dismissed;
(2)The sixth defendant do pay the costs of the first, second, third and fourth defendants of those proceedings insofar as those costs may have increased any of those defendants' costs of the trial to be taxed.

(7)The appellants pay the first, second, third, fourth and fifth respondents' costs of the appeal including all reserved costs to be taxed.
(8)The sixth respondent pay 40% of the appellants' (other than the eleventh appellant's) costs of the appeal to be taxed.
(9)The sixth respondent pay the fifth respondent's costs of the cross appeal insofar as those costs may have increased any of the fifth respondent's costs of the appeal, to be taxed.
(10)The fourth respondent pay a third of the sixth respondent's costs of the cross appeal insofar as those costs may have increased the sixth respondents' costs of the appeal to be taxed.
(11)The appellants pay the first respondent's costs of its notice of contention, including all reserved costs, to be taxed.
(12)The sixth respondent pay the first respondent's costs of the sixth respondent's cross appeal, including all reserved costs, to be taxed.
(13)There be liberty to apply.

CACV 16 of 2007 - Drexel London appeal

1.The appellant's appeal against the first to tenth respondents and twelfth to seventeenth respondents be dismissed.
2.The appellant's appeal against the eighteenth respondent be allowed and the judgment of Templeman J entered 6 July 2007 be amended as provided for in paragraph 6 of the orders made in CACV 114 of 2007.
3.The notice of contention of the first to tenth respondents and of the twelfth to sixteenth respondents be upheld.
4.The notice of contention of the seventeenth respondent be upheld.
5.The notice of contention of the eighteenth respondent be dismissed.
6.The appellant pay 70% of the first to tenth respondents and the twelfth to sixteenth respondents' costs of the appeal to be taxed as one bill.
7.The appellant pay the seventeenth respondent's costs of the appeal in relation to ground 4 to be taxed.
8.The appellant pay the seventeenth respondent's costs of the notice of contention of the seventeenth respondent to be taxed.
9.The eighteenth respondent pay one third of the appellant's costs of the appeal to be taxed.
10.There be liberty to apply.

CACV 20 of 2007 - City of Fremantle's appeal

1.The appeal be allowed and the judgment of Templeman J entered 6 July 2007 be amended as provided for in paragraph 6 of the orders made in CACV 114 of 2007.
2.The first to seventeenth respondents pay the appellant's costs of this appeal to be taxed.
3.The first to seventeenth respondents and the eighteenth respondent do each pay one half of the appellant's costs of the hearing held before Templeman J on 23 March 2007 to be taxed.
4.The first to seventeenth respondents each be granted an indemnity certificate pursuant to s 10(1) of the Suitors' Fund Act 1964 (WA).