Drummond and Rosen Pty Limited v Easey - [2009] NSWCA 74

NEW SOUTH WALES COURT OF APPEAL

CITATION:
DRUMMOND AND ROSEN PTY LIMITED v EASEY & ORS [2009] NSWCA 74

FILE NUMBER(S):
40932/2007

HEARING DATE(S):
04/12/2008

JUDGMENT DATE:
16 April 2009

PARTIES:
Drummond & Rosen Pty Ltd - Appellant
Berry Easy - 1Respondent
Lamothe Pty Ltd - 2nd Respondent
Drisi Pty Ltd - 3rd Respondent
Grosvenor Constructors - 4th Respondent

JUDGMENT OF:
Tobias JA Macfarlan JA Handley AJA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 1114/2003

LOWER COURT JUDICIAL OFFICER:
Quirk DCJ

LOWER COURT DATE OF DECISION:
31 August 2008

COUNSEL:
J E Maconachie QC and D S Weinberger - Appellant
S Norton SC and M Frasor - 1st Respondent
L King SC and B Smith - 2nd and 3rd Respondents
I. Todd - 4th Respondent

SOLICITORS:
Colin Biggers & Paisley - Appellant
Brydens Law Office - 1st Respondent
Sparke Helmore - 2 & 3 Respondents
Hall Chadwick - 4th Respondent

CATCHWORDS:
ARCHITECTS – Duty - engagement in construction phase limited to selection of finishes and colours – delivery of tile samples for approval – no duty to ensure compliance with technical standards in specification – architects not liable.
NEGLIGLENCE – Architects – construction phase – engagement limited to selection of finishes & colours – provision of sample tiles – no responsibility for compliance with technical standards in specification – builder responsible.

LEGISLATION CITED:

CASES CITED:
Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588
Permanent Trustee Australia Co Ltd v FAI General Insurance Co. Ltd (2001) 50 NSWLR 679
Voli v Inglewood Shire Council (1963) 110 CLR 74

TEXTS CITED:

DECISION:
(1) Appeal allowed.
(2) Set aside the judgment of the District Court against the fourth defendant Drummond & Rosen Pty Ltd (the architects) and in lieu thereof substitute judgment for that defendant in the action with costs.
(3) Set aside the verdict and judgment for the cross-claimants Lamothe Pty Ltd and Derisi Pty Ltd trading as Miller Shopping Centre (the owners) on their cross-claim against the architects and in lieu thereof order that judgment be entered for the architects on that cross-claim with costs.
(4) Set aside the verdict and judgment for the cross-claimant Grosvenor Constructions (NSW) Pty Ltd (under External Administration) (the builder) on its cross-claim against the architects, and in lieu thereof order that judgment be entered for the architects on that cross-claim with costs.
(5) Set aside the verdicts and judgments for the cross-claimant architects on its cross-claims against the owners and the builder and in lieu thereof order that there be judgment for those cross-defendants on those cross-claims with no order as to costs.
(6) Set aside the verdicts and judgment for the owners on their cross claim against the builder and substitute verdict and judgment for 50% of the judgment for the plaintiff.
(7) Set aside the verdict and judgment for the builder on its cross claim against the owners and substitute verdict and judgment for 50% of the judgment for the plaintiff.
(8) Order that the respondents pay the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Drummond and Rosen Pty Limited v Easey and more:

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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWCA 74
Decision Date: 16 April 2009

CaseChat Overview and Summary

The appeal concerned the liability of architects, Drummond and Rosen Pty Limited, for defects in a shopping centre development. The dispute arose from a claim by the owners of the shopping centre, Lamothe Pty Ltd and Derisi Pty Ltd trading as Miller Shopping Centre, and a cross-claim by the builder, Grosvenor Constructions (NSW) Pty Ltd, against the architects. The primary claim against the architects was brought by the plaintiff, though the details of this claim are not elaborated in the provided text. The case was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the architects owed a duty of care to the owners and the builder regarding the technical compliance of materials used in the construction, specifically concerning tile specifications, and whether they breached any such duty. The court was required to determine the scope of the architects' engagement during the construction phase and whether their involvement extended beyond the selection of finishes and colours to encompass ensuring adherence to technical standards outlined in the building specifications.

The Court of Appeal found that the architects' engagement in the construction phase was limited to the selection of finishes and colours, including the delivery of tile samples for approval. The court reasoned that this limited scope did not impose a duty on the architects to ensure compliance with the technical standards set out in the building specification. Consequently, the architects were not liable for the defects arising from the builder's failure to meet these technical standards. The court allowed the appeal, setting aside the District Court's judgment against the architects and ordering judgment in their favour on all cross-claims.

Orders

Orders of the court

(1) Appeal allowed. (2) Set aside the judgment of the District Court against the fourth defendant Drummond & Rosen Pty Ltd (the architects) and in lieu thereof substitute judgment for that defendant in the action with costs. (3) Set aside the verdict and judgment for the cross-claimants Lamothe Pty Ltd and Derisi Pty Ltd trading as Miller Shopping Centre (the owners) on their cross-claim against the architects and in lieu thereof order that judgment be entered for the architects on that cross-claim with costs. (4) Set aside the verdict and judgment for the cross-claimant Grosvenor Constructions (NSW) Pty Ltd (under External Administration) (the builder) on its cross-claim against the architects, and in lieu thereof order that judgment be entered for the architects on that cross-claim with costs. (5) Set aside the verdicts and judgments for the cross-claimant architects on its cross-claims against the owners and the builder and in lieu thereof order that there be judgment for those cross-defendants on those cross-claims with no order as to costs. (6) Set aside the verdicts and judgment for the owners on their cross claim against the builder and substitute verdict and judgment for 50% of the judgment for the plaintiff. (7) Set aside the verdict and judgment for the builder on its cross claim against the owners and substitute verdict and judgment for 50% of the judgment for the plaintiff. (8) Order that the respondents pay the appellant's costs of the appeal but each is to have a certificate under the Suitors Fund Act, in the case of the corporate respondents only if they are qualified. (9) Any application for additional or varied orders as to costs or for restitution of moneys paid under the judgments hereby reversed is to be made by notice of motion filed within 14 days returnable in the first instance for directions before the Registrar of this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.