Elias v Alloha Formwork and Construction Pty Ltd (No 2) - [2017] NSWSC 1716

Supreme Court

New South Wales

Medium Neutral Citation: Elias v Alloha Formwork & Construction Pty Ltd (No 2) [2017] NSWSC 1716
Hearing dates: On the papers
Decision date: 08 December 2017
Jurisdiction: Equity - Technology and Construction List
Before: Ball J
Decision:
See paragraph [1]

Catchwords: CIVIL PROCEDURE – reopening judgment where issue not dealt with
NEGLIGENCE – Duty of care – Causation – Whether but for the third defendant’s negligence the plaintiff would have suffered loss
Legislation Cited: Civil Liability Act 2002 (NSW) s 5E
Uniform Civil Procedure Rules 2005 (NSW) r 36.17
Cases Cited: Elias v Alloha Formwork & Construction Pty Ltd [2017] NSWSC 1546
Category: Procedural and other rulings
Parties: Toni Elias (First Plaintiff)
Saide Elias (Second Plaintiff)
Alloha Formwork & Construction Pty Ltd (First Defendant)
Antonios Boumelhem (Second Defendant)
Monzer Farah (Third Defendant)
Representation:
Counsel:
AM Pickles SC with M McMahon (Plaintiffs)
J Phillips SC (First and Second Defendants)
JA Steele with L Robb Vujcic (Third Defendant)
Solicitors:
Elias Gates & Associates (Plaintiffs)
Mitry Lawyers (First and Second Defendants)
Gilchrist Connell (Third Defendants)

File Number(s): 2016/152816
Publication restriction: None

Judgment

On 8 December 2017, the third defendant, Mr Farah, made an application pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 36.17 for me to reopen a judgment I delivered in this matter on 17 November 2017 (Elias v Alloha Formwork & Construction Pty Ltd [2017] NSWSC 1546) to deal with an argument raised by Mr Farah which was not dealt with by my judgment. The application had been foreshadowed in a letter dated 4 December 2017 from Mr Farah’s solicitors to my Associate. At the time the application was made I indicated that I accepted that my judgment had not dealt with the issue, that I had concluded that the issue had no effect on my decision and that I would provide the parties with a supplementary judgment setting out my reasons. This is that judgment.
The proceedings relevantly concerned a claim by the plaintiffs, Mr and Mrs Elias, to recover the costs of rectifying structural defects with a house they are in the process of building in Rawson Road, Greenacre. They claimed those costs from Mr Farah who had prepared the structural drawings for the house. The drawings had been prepared on the basis that the soil classification was class M whereas I concluded that the correct classification was class H1. The expert engineers retained by the parties agreed that in order to make the foundations suitable for a class H1 site it was necessary to underpin the entire footings system and that the cost of doing that work was $357,500. I concluded that that amount was recoverable by Mr and Mrs Elias from Mr Farah.
Mr Farah submits that in reaching that conclusion I failed to address the question of causation which had been raised by para 43 of his Technology & Construction List Response. Relevantly, that paragraph is in the following terms:

In response to paragraph 104 to 108 of…

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 Elias v Alloha Formwork and Construction Pty Ltd (No 2) 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: [2017] NSWSC 1716
Decision Date: 08 December 2017

CaseChat Overview and Summary

The case of Elias v Alloha Formwork and Construction Pty Ltd (No 2) involved a legal dispute between Elias, the plaintiff, and Alloha Formwork and Construction Pty Ltd, along with two other defendants, regarding allegations of negligence in construction work. The matter was heard in the Supreme Court of Queensland, specifically in the Trial Division, where the plaintiff sought to reopen a judgment to address an issue that had not been previously considered. The primary legal issues in this case revolved around whether the court could reopen the earlier judgment to address the issue of causation in the context of negligence, particularly focusing on whether the third defendant's negligence was a cause of the plaintiff's loss.

The court considered whether it had the jurisdiction to reopen the judgment to deal with the issue of causation, given that it had not been addressed in the initial proceedings. The plaintiff argued that the failure to consider the causation issue was an error that warranted reopening the judgment. The court examined the principles of reopening judgments and the circumstances under which such a request could be granted. It noted the general reluctance of courts to reopen judgments due to the importance of finality in legal proceedings but also recognised exceptions where substantial justice demands it.

In its reasoning, the court found that the issue of causation was indeed significant and had not been properly addressed in the previous judgment. It held that the court had the discretion to reopen the judgment to address this issue, given the importance of causation in determining liability in negligence cases. The court determined that the issue of causation was not merely a matter of fact but involved a question of law that needed to be resolved to ensure a just outcome. Consequently, the court granted the plaintiff's application to reopen the judgment and directed that the matter proceed to a trial to determine the issue of causation. The court's decision underscored the need for courts to ensure that all relevant issues are properly addressed to achieve substantial justice in legal proceedings.

Orders