Goulding v Kirby

CITATION:	Goulding & Anor v Kirby [2002] NSWCA 393
FILE NUMBER(S):	CA 41078/01
HEARING DATE(S):	23/09/2002
JUDGMENT DATE:	9 December 2002
PARTIES :	Leonard Charles Goulding and Ruth Goulding (Appellants) Robert Raymond Kirby (Respondent)
JUDGMENT OF:	Heydon JA at 1; Hodgson JA at 2; Santow JA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 7012/00
LOWER COURT JUDICIAL OFFICER :	Certoma ADCJ

COUNSEL:	A Ogborne (Appellants) J Coombs, QC/ G Ellis (Respondent)
SOLICITORS:	The Bruce & Stewart Commercial Practice (Appellants) Colin Biggers & Paisley (Respondent)
CATCHWORDS:	NEGLIGENCE - economic loss - failure to properly prepare walls before applying paint - failure to ensure paint properly adhered to walls
CASES CITED:	Annes v Merton London Borough Council [1978] AC 728 Bryan v Maloney (1994-1995) 182 CLR 609 Perre v Apand (1999) 198 CLR 180 Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 76 ALJR 1348 Woollahra Municipal Council v Sved (1996) 40 NSWLR 101 Zumpano v Montagnese [1997] 2 VR 525
DECISION:	(1) Leave to appeal refused; (2) Appellants to pay Respondent's costs.

CA 41078/01
DC 7012/00

HEYDON JA
HODGSON JA
SANTOW JA

9 DECEMBER 2002

Leonard Charles GOULDING & Anor -v- Robert Raymond KIRBY

NEGLIGENCE – economic loss – failure to properly prepare walls before applying paint – failure to ensure paint properly adhered to walls

This matter was a concurrent application for leave to appeal with the hearing of the appeal.

The Appellants purchased a house in Pymble from the vendor in 1997 after inspecting the property. The Appellants were aware that the house had damp problems and they did not have a pest or building inspection report carried out before exchange. Mr Goulding, the Appellant husband, was of the view that his experience as an architect and principal of a development company meant it was sufficient to rely on his inspections of the home.

In the period between December 1995 and August 1996, the vendor had employed the Respondent to paint various rooms in the house. The Respondent painted the walls with water based paint. Previously the house had been painted with oil-based paints.

When the Appellants moved in to the home on 28 February 1997, the Appellants became aware that in areas of the home paint was scratched and peeling from the walls. Expert opinion was that the inadequate adhesion was not immediately apparent without further testing that would have been intrusive and destructive.

The Appellants claimed that the painter was negligent in having painted the internal walls of the house without properly preparing the surfaces and then subsequently applying a water based paint which did not sufficiently adhere to the pre-existing oil based paint. The Appellants claimed for diminution in value of the house of $100,000. The cost of rectifying the problem was significantly less with quotes for the repair cost ranging from $40,108 to $63,290. For this reason, the Appellants required leave to appeal.

The Trial Judge dismissed the Appellants’ claim.

(Santow JA,…