Dunn v Hanson Australasia Pty Ltd

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Dunn v Hanson Australasia Pty Ltd

Citation:

[2017] ACTSC 169

Hearing Dates:

29 and 30 May 2017

DecisionDate:

12 July 2017

Before:

Mossop J

Decision:

See [75]

Catchwords:

CONTRACTS – BUILDING CONTRACTS – Breach – breach of statutory warranties – breach of express written terms – breach of contractual warranty – failure to rectify defects – quantum of damages

TRADE PRACTICES – MISLEADING AND DECEPTIVE CONDUCT – Representations  – quantum of damages – ancillary liability for damages – proportionate liability

DAMAGES – CONTRIBUTION AND APPORTIONMENT – Proportionate liability – “building action” – “apportionable claim” – “concurrent wrongdoer”

Legislation Cited:

Building Act 2004 (ACT), ss 88, 140, 141, Part 9

Civil Law (Wrongs) Act 2003 (ACT), ss 107A, 107F(3)(b)
Civil Liability Act 2002 (NSW)
Construction Practitioners Registration Act 1998 (ACT)
Trade Practices Act 1974 (Cth), ss 52, 82, 87CB(1), 87CB(2), 87CB(3), 87CD(2)(b), 87CD(5), 87CI

Cases Cited:

Bellgrove v Eldridge (1954) 90 CLR 613

Ellis’s Town House Pty Ltd v Botan Pty Ltd [2017] NSWCA 20

Hadgelias Holdings and Waight v Seirlis & Ors [2014] QCA 177

Helkeast Pty Ltd v Ruckschloss [2017] ACTSC 65

Hunt & Hunt Lawyers v Mitchell Morgan Nominess Pty Ltd [2013] HCA 10; 247 CLR 613

Radford v De Froberville [1977] 1 WLR 1262

Selig v Wealthsure Pty Ltd [2015] HCA 18; 255 CLR 661

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; 236 CLR 272

The Owners Units Plan 1917 v Koundouris [2016] ACTSC 96

Tomasetti v Brailey [2012] NSWCA 399

Williams v Pisano [2015] NSWCA 177; 90 NSWLR 342

Texts Cited:

Explanatory Statement for the Building Bill 2003 (ACT)

J L R Davis, Inquiry Into the Law of Joint and Several Liability: Report of Stage Two (Commonwealth of Australia, 1995)

Parties:

Kathryn Anne-Marie Dunn (First Plaintiff)

Thurston Benjamin Dunn (Second Plaintiff)

Hanson Australasia Pty Ltd (First Defendant)

Henry Lau (Second Defendant)

Qun Cai (Third Defendant)

Raymond Guy Howard (Fourth Defendant)

Representation:

Counsel

Mr M Hassell (First and Second Plaintiffs)

Mr P Johannessen (First and Second Defendants)

No appearance (Third and Fourth Defendants)

Solicitors

Backhouse Legal (First and Second Plaintiffs)

Johannessen Legal & Migration (First and Second Defendants)

No appearance (Third and Fourth Defendants)

File Number:

SC 164 of 2015

MOSSOP J:

Introduction

1. This is an action to recover damages arising from the defective construction of a residential building in Macgregor, a suburb of Canberra.

1. The plaintiffs are the owners of the property. They purchased the property from the third defendant Ms Qun Cai. In July 2009 the third defendant had entered into a contract with the first defendant (Hanson Australasia Pty Ltd) for the first defendant to build a two-storey four-bedroom house on the land. The second defendant is and was the sole director of the first defendant. In April 2010, prior to completion of the construction of the house, the third defendant entered into a contract to sell the house and land to the plaintiffs. Construction of…