Gaskell & Gaskell v Woodall - [2013] SADC 11

District Court of South Australia
(Civil)
GASKELL & GASKELL v WOODALL
[2013] SADC 11
Reasons for Decision of His Honour Judge Beazley (ex tempore)
5 February 2013
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT - DAMAGES - OTHER MATTERS
Building contract - claim by plaintiffs against the defendant builder for defective workmanship - the defendant in breach of contract - the plaintiffs sought order for summary judgment pursuant to 6 DCR 232 - defendant intimates that he did not seek that the plaintiffs call evidence as to quantum from quantity surveyor - he did not wish to cross examine any witness or call evidence in his defence - no material dispute of fact - whether test to be applied is one of "demonstrated certainty of outcome" - or alternatively "no reasonable prospect of defence" - whether the plaintiffs ought receive judgment by default pursuant to 6 DCR 234 as an alternative - the defendant had no defence to the plaintiffs' claim.
Held: The plaintiffs entitled to summary judgment for their claim in the sum of $354,570 together with interest at 8% per annum on that part of their claim namely $16,870 already paid by them. The total interest awarded is in the sum of $8,097.60. Judgment is awarded to the plaintiffs against the defendant in the sum of $362,667.60 inclusive of interest. The defendant must pay the plaintiffs' costs of action on a party/party basis.
Building Work Contractors Act 1995 (SA) s32; 6 DCR 232 and 6 DCR 234, referred to.
Foots v Sth Cross Mine Management Pty Ltd [2007] HCA 56; Estate of Bradman v Allens Arthur Robinson [2010] SASC 71; Davies v Minister for Urban Development and Planning [2011] SASC 87; Spencer v Commonwalth (2010) 241 CLR 118; Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; Mittiga v Community Corporation [2012] SASC 202; CBFC Ltd v Charitopolous [2009] SASC 30; Krysiak v McDonagh [2012] WASC 270; Edwards v Petterson (1987) 47 SASR 63, considered.

GASKELL & GASKELL v WOODALL
[2013] SADC 11
Introduction

This action arises out of the construction of a double storey residence on land situated at Tailem Bend, being the land comprised in Certificate of Title Register Book Volume 5719 Folio 589 (“the said land”).
In 2002 and 2004 Peter and Kerry Gaskell, (the plaintiffs) as owners of the said land entered into certain agreements with Terry Woodall, (the defendant), a licensed builder, initially for the provisions of landscape works, and subsequently for the construction of the subject dwelling on the said land.
The plaintiffs claim against the defendant is for damages for breach of a written contract dated 20 August 2004 and/or for negligence by the defendant in the construction of the subject dwelling.
Background
I set out the following background facts. None of the following facts were in dispute.
In or about October 2002, the plaintiffs had engaged an engineering group,…

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 Gaskell & Gaskell v Woodall

Details

AGLC: Gaskell & Gaskell v Woodall [2013] SADC 11
Case: [2013] SADC 11
Decision Date: 5 February 2013

CaseChat Overview and Summary

In the case of Gaskell & Gaskell v Woodall, the plaintiffs, Gaskell & Gaskell, sought summary judgment against the defendant, Woodall, for defective workmanship in a building contract. The plaintiffs claimed that the defendant had breached the contract by failing to perform the work to the required standard. The defendant did not contest the claim and indicated that he did not seek for the plaintiffs to call evidence as to the quantum of damages from a quantity surveyor, nor did he intend to cross-examine any witnesses or present evidence in his defence.

The central legal issue before the court was whether the appropriate test for granting summary judgment was one of "demonstrated certainty of outcome" or "no reasonable prospect of defence." Additionally, the court had to consider whether the plaintiffs should receive judgment by default under rule 6 DCR 234 as an alternative, given the defendant's lack of a defence to the claim. The court found that the defendant had no defence to the plaintiffs' claim, and as such, the plaintiffs were entitled to summary judgment.

The court concluded that the test for summary judgment was whether there was "no reasonable prospect of defence," which was clearly met in this case. The defendant's lack of a defence meant that there was no need for the plaintiffs to present evidence regarding the quantum of damages. The court granted the plaintiffs' application for summary judgment and ordered the defendant to pay the plaintiffs' costs.

The final orders included that the defendant was liable to pay the plaintiffs for the defective workmanship, and that the plaintiffs were entitled to their costs of the proceedings.

Orders