Gratrax Pty Ltd v TD and C Pty Ltd - [2013] QDC 63

DISTRICT COURT OF QUEENSLAND

CITATION:

Gratrax Pty Ltd v TD & C Pty Ltd [2013] QDC 63

PARTIES:

GRATRAX PTY LTD

(Plaintiff)

v

TD & C PTY LTD

(Defendant)

FILE NO/S:

D3774/2009

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

9 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2012

JUDGE:

McGill SC DCJ

ORDER:

Judgment that the Defendant pay the Plaintiff $12,901 including $4,154 by way of interest.

CATCHWORDS:

CONTRACT – breach – damages – causation – whether damages increased by unexpected voluntary inappropriate action of plaintiff

NEGLIGENCE – causation – novus actus interveniens – test of – limited damages awarded

NEGLIGENCE – professional negligence – engineer – preparation of construction drawings for road – incorrect pavement materials specified – breach

PRACTICE – pleading – contributory negligence – whether plea covers cause of action for breach of contract if within scope of section

Civil Liability Act 2003 s 11(1), (4).

Law Reform Act 1995 s 10.

UCPR r 149(1)(e).

Astley v Austrust Ltd (1999) 197 CLR 1 – cited.
Blaxter v Commonwealth of Australia [2008] NSWCA 87 – cited.
Burns v Pearce [2010] WASCA 214 – cited.
Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 – considered.
Curmi v McLennan [1994] 1 VR 513 – cited.
Driver v War Service Homes Commissioner (1923) 44 ALT 130 – cited.
French v QBE Insurance (Australia) Ltd [2011] QSC 105 – considered.
Hirst v Nominal Defendant [2005] 2 Qd R 133 – followed.
Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413 – considered.
Mallesons Stephen Jaques v Trenorth Ltd [1999] 1 VR 727 – considered.
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 – cited.
Medlin v SGIC (1995) 182 CLR 1 – applied.
Sherson & Associates Pty Ltd v Bailey [2000] NSWCA 275 – distinguished.
TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 – distinguished.
South Australian Asset Management Corporation v York Montague Ltd [1997] AC 191 – considered.
Tabet v Gett (2010) 240 CLR 537 – considered.
Travel Compensation Fund v Tambree (2005) 224 CLR 627 – considered.
Voli v Inglewood Shire Council (1963) 110 CLR 74 – applied.

COUNSEL:

J W Peden for the plaintiff

R S Ashton for the defendant

SOLICITORS:

Crouch Lyndon for the plaintiff

Thynne and McCartney for the defendant

This is an action for damages for breach of contract or negligence in respect of some engineering services provided by the defendant to the plaintiff in 2007. There is some dispute as to the terms of the defendant’s retainer, and as to whether there was such a breach of contract or negligence. The defendant prepared a design for the construction of a road at Yatala, and the plaintiff alleges that the design was prepared in breach of the implied obligation to exercise reasonable care and skill, or negligently, in that the components specified for the road base and sub-base did not comply with…

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.

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Details

Case: [2013] QDC 63
Decision Date: 9 April 2013

CaseChat Overview and Summary

Gratrax Pty Ltd sued TD and C Pty Ltd for breach of contract and negligence in relation to the preparation of construction drawings for a road. The dispute arose from the incorrect specification of pavement materials in the drawings, leading to damages incurred by Gratrax due to unexpected voluntary inappropriate action. The case was heard in the Supreme Court of Queensland. The central legal issues revolved around whether the damages incurred by Gratrax could be attributed to the breach of contract and negligence by TD and C, and if so, whether these damages were limited by any intervening actions. The court had to determine if the breach of contract and professional negligence by TD and C were direct causes of Gratrax's damages and whether any subsequent voluntary actions by Gratrax constituted a novus actus interveniens that would break the chain of causation.

The court concluded that TD and C's breach of contract and negligence were indeed direct causes of Gratrax's damages. The court found that the incorrect specification of pavement materials was a significant factor in the damages incurred. However, the court also found that Gratrax's voluntary decision to use inappropriate materials, despite being aware of the incorrect specifications, constituted an intervening act that limited the damages recoverable. The court applied the test for novus actus interveniens and determined that Gratrax's actions were foreseeable and did not break the chain of causation to the extent that TD and C would be absolved of all liability. The court awarded damages of $12,901 to Gratrax, which included $4,154 by way of interest.

The final orders of the court were that TD and C pay Gratrax the sum of $12,901, inclusive of interest. This decision recognised the breach of contract and professional negligence by TD and C but also took into account the contributory actions of Gratrax, resulting in a reduced quantum of damages.

Orders

Orders of the court

Judgment that the Defendant pay the Plaintiff $12,901 including $4,154 by way of interest.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Gratrax Pty Ltd v TD & C Pty Ltd [2013] QDC 63
PARTIES:	GRATRAX PTY LTD (Plaintiff) v TD & C PTY LTD (Defendant)
FILE NO/S:	D3774/2009
DIVISION:
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	9 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	12 May 2012
JUDGE:	McGill SC DCJ
ORDER:	Judgment that the Defendant pay the Plaintiff $12,901 including $4,154 by way of interest.
CATCHWORDS:	CONTRACT – breach – damages – causation – whether damages increased by unexpected voluntary inappropriate action of plaintiff NEGLIGENCE – causation – novus actus interveniens – test of – limited damages awarded NEGLIGENCE – professional negligence – engineer – preparation of construction drawings for road – incorrect pavement materials specified – breach PRACTICE – pleading – contributory negligence – whether plea covers cause of action for breach of contract if within scope of section Civil Liability Act 2003 s 11(1), (4). Law Reform Act 1995 s 10. UCPR r 149(1)(e). Astley v Austrust Ltd (1999) 197 CLR 1 – cited. Blaxter v Commonwealth of Australia [2008] NSWCA 87 – cited. Burns v Pearce [2010] WASCA 214 – cited. Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 – considered. Curmi v McLennan [1994] 1 VR 513 – cited. Driver v War Service Homes Commissioner (1923) 44 ALT 130 – cited. French v QBE Insurance (Australia) Ltd [2011] QSC 105 – considered. Hirst v Nominal Defendant [2005] 2 Qd R 133 – followed. Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413 – considered. Mallesons Stephen Jaques v Trenorth Ltd [1999] 1 VR 727 – considered. March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 – cited. Medlin v SGIC (1995) 182 CLR 1 – applied. Sherson & Associates Pty Ltd v Bailey [2000] NSWCA 275 – distinguished. TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 – distinguished. South Australian Asset Management Corporation v York Montague Ltd [1997] AC 191 – considered. Tabet v Gett (2010) 240 CLR 537 – considered. Travel Compensation Fund v Tambree (2005) 224 CLR 627 – considered. Voli v Inglewood Shire Council (1963) 110 CLR 74 – applied.
COUNSEL:	J W Peden for the plaintiff R S Ashton for the defendant
SOLICITORS:	Crouch Lyndon for the plaintiff Thynne and McCartney for the defendant