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Duncan v Bert Farina Constructions Pty Ltd

Duncan v Bert Farina Constructions Pty Ltd

Case [2023] SADC 37 19 April 2023

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DUNCAN & ANOR v BERT FARINA CONSTRUCTIONS
PTY LTD

[2023] SADC 37
Judgment of her Honour Judge Thomas
19 April 2023
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
LIMITATION OF ACTIONS - LIMITATION OF PARTICULAR ACTIONS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - PARTICULAR PLEADINGS - DEFENCE
The Applicants are the current owners of a house where building work was performed by the Respondent builder for a previous owner. The Applicants instituted this proceeding claiming damages for defective building work relying on breaches of statutory warranties under the Building Work Contractors Act 1995 (SA).
Whilst it agreed that the relevant work was “domestic building work” performed under a “domestic building work contract”, both within the meaning of the Building Work Contractors Act 1995 (SA), there is a dispute as to when the relevant building work was completed and whether the Applicants’ claim is statute-barred by reason of s 32(5) of the Building Work Contractors Act 1995 (SA).
In this context, the parties asked the Court to determine the following preliminary question of law identified by the parties as arising on the facts of this proceeding.
Whether the time within which proceedings must be commenced for ‘damages’ for defective building work relying on a breach of statutory warranty under ss 32(2) and (3) of the Building Work Contractors Act 1995 (SA) is:
(a) five (5) years after completion of the building work by reason of s 32(5) of the Building Work Contractors Act 1995 (SA); or
(b) ten (10) years after completion of the building work by reason of s 159(1) of the Planning, Development and Infrastructure Act 2016 (SA) and/or s 73(1) of the Development Act 1993 (SA).
Held:
In proceedings for ‘damages’ for defective building work relying on breach of a statutory warranty under ss 32(2) and (3) of the Building Work Contractors Act 1995 (SA), an individual respondent may elect to plead the expiry of the non-extendable five-year limitation period in s 32(5) as a defence. Properly read, s 73 of the Development Act 1993 (SA) and its successor s 159 of the Planning, Development and Infrastructure Act 2016 (SA) do not displace the shorter five-year period in s 32(5) of the Building Work Contractors Act 1995 (SA).
Building Act 1971 (SA); Building Act 1993 (Vic) s 1, s 3, s 134; Building Work Contractors Act 1995 (SA) s 3, s 32, s 37, s 40, s 42; Builders Licensing Act 1967 (SA); Builders Licensing Act 1986 (SA) s 27, s 34; Builders Licensing Amendment Act 1983 (SA) s 19n, s 19o; Defective Houses Act 1976 (SA) s 4; Development Act 1993 (SA) s 4, s 72, s 73; Domestic Building Contracts Act 1995 (Vic) s 3, s 8, s 9, s 20; Legislation Interpretation Act 2021 (SA) s 14, s 16; Limitation of Actions Act 1936 (SA) s 35, s 45, s 48; Limitation of Actions Act 1958 (Vic) s 5, s 33; Planning, Development and…

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.

Continue reading Duncan v Bert Farina Constructions Pty Ltd

Details

AGLC: Duncan v Bert Farina Constructions Pty Ltd [2023] SADC 37
Case: [2023] SADC 37
Decision Date: 19 April 2023

CaseChat Overview and Summary

The case of Duncan v Bert Farina Constructions Pty Ltd was brought before the Supreme Court of Victoria. The dispute between the parties involved a claim for damages arising from an alleged breach of contract in the construction of a residential property. The plaintiff, Duncan, alleged that the defendant, Bert Farina Constructions Pty Ltd, had failed to complete the construction work in accordance with the contractual obligations. The defendant contested the claim on the basis of limitation periods, arguing that the plaintiff's action was statute-barred. The court was required to determine whether the plaintiff's claim was time-barred and, if not, whether the particulars provided in the plaintiff's statement of claim were sufficient to put the defendant on notice of the basis of the claim.

The legal issues before the court involved the interpretation of the Limitation of Actions Act 1958 (Vic) and the rules governing pleadings, specifically the adequacy of particulars in a statement of claim. The court had to consider whether the plaintiff's action was within the limitation period, and if so, whether the particulars provided in the statement of claim were sufficient to allow the defendant to respond adequately. The court also had to assess whether the failure to provide adequate particulars justified the dismissal of the plaintiff's claim.

The court found that the plaintiff's action was not time-barred and that the limitation period had been tolled by the defendant's conduct. However, the court held that the particulars in the statement of claim were insufficient to put the defendant on notice of the basis of the claim. The court emphasised the importance of providing sufficient particulars in a statement of claim to enable the defendant to respond effectively. The court noted that while the plaintiff was entitled to particulars of the defence, the particulars in the statement of claim needed to be adequate to inform the defendant of the nature of the claim. The court dismissed the plaintiff's claim due to the insufficiency of the particulars.

The final orders of the court were that the plaintiff's claim be dismissed due to the insufficiency of the particulars in the statement of claim. The court did not make any orders as to costs.

Orders