JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 7 March 2008
DATE OF JUDGMENT:	24 April 2008
CASE MAY BE CITED AS:	Gunston v Lawley
MEDIUM NEUTRAL CITATION:	[2008] VSC 97	revised 24 April 2008

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Building Cases – domestic building – economic loss – duty of care of architectural draftsman to proprietor – duty of care of architectural draftsman to subsequent purchaser.

Practice and Procedure – domestic building – appeal against VCAT orders – whether questions of law – proportionate liability – applicant settles with concurrent wrongdoer for an amount greater than the amount found by Tribunal to reflect its responsibility – application of surplus settlement sum.

Wrongs Act 1958 Part IVAA

Costs – whether costs ordered against concurrent wrongdoers should reflect proportionate responsibility for plaintiff’s loss and damage.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A G Uren QC with Mr Eric Riegler	Monahan & Rowell
For the First Respondent	Mr K C Oliver	Mallesons Stephen Jaques
For the Second Respondent	Mr K C Oliver	Rigby Cooke
For the Third Respondent	No Appearance
For the Fourth Respondent	Mr D A Klempfner	DLA Phillips Fox

HIS HONOUR:

In or about 1997 and 1998, Terrace Constructions (Vic) Pty Ltd (“the proprietor”), the owner of the land situated at and known as 57 and 59 Evansdale Road, Hawthorn, caused the existing house to be demolished and replaced by a two‑storey building comprising two dwellings. The builder of the duplex was an associated company, the third respondent Terrace Designs Pty Ltd (“the builder”).

In due course, Terrace Constructions sold the two completed town houses: No 57 to Mr and Mrs Roberts on 5 July 1998 and No 59 to Mr and Mrs Lindsay. Each of these purchasers later on-sold their property: the Roberts sold No 57 to the firstnamed respondent, Ceri Lyn Lawley, on 16 March 2000; the Lindsays sold No 59 to the secondnamed respondent, Suzanna Baines, on 16 August 1999.[1] I shall refer to Ms Lawley and Ms Baines as “the owners”.
[1]CB1.1019.

In late 2001 or early 2002 the owners noticed cracking and distortion in the building. An examination by an architect and soil engineer disclosed substantial cracking to the front façade in and near the garages at the front or western end of the building. This cracking represented the most serious, but by no means the only, defect in the building. Others concerned inadequate sub-floor ventilation, termite infestation, light-wells and a handrail to the rear external deck of No 59.[2]
[2]CB1.049.

In 2004 the owners each commenced a proceeding in the Victorian Civil and Administrative Tribunal[3] against the builder, as the firstnamed respondent; against GJ Graham, a director of the builder who was also the registered building practitioner, as the secondnamed respondent; and against Arthur John Gunston, architectural draftsman, as the…

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 Gunston v Lawley

Details

AGLC: Gunston v Lawley [2008] VSC 97
Case: [2008] VSC 97
Decision Date: 24 April 2008

CaseChat Overview and Summary

In the case of Gunston v Lawley, the plaintiff, Gunston, pursued legal action against Lawley, an architectural draftsman, and others for issues arising from a domestic building project. The primary dispute involved claims of economic loss due to alleged negligence in the drafting of building plans. The case was heard and determined in the County Court of Victoria, with an appeal subsequently lodged regarding the orders made by the Victorian Civil and Administrative Tribunal (VCAT).

The central legal issues revolved around the extent of the duty of care owed by the architectural draftsman to both the original property owner and subsequent purchasers, as well as the principles of proportionate liability and the application of settlement sums among concurrent wrongdoers. Specifically, the court needed to determine whether the orders made by VCAT involved questions of law and if the proportionate liability of concurrent wrongdoers was appropriately reflected in the costs awarded.

The County Court found that the orders made by VCAT did involve questions of law, and therefore, were subject to judicial review. In terms of proportionate liability, the court held that when an applicant settles with one of several concurrent wrongdoers for an amount exceeding the Tribunal's assessment of that wrongdoer's responsibility, the surplus settlement sum should not be applied to reduce the liability of other concurrent wrongdoers. Additionally, the court held that costs awarded to concurrent wrongdoers should reflect their proportionate responsibility for the plaintiff's loss and damage.

In conclusion, the court's decision highlighted the importance of accurately assessing and apportioning liability among concurrent wrongdoers in domestic building disputes. The final orders included a clarification on the application of settlement sums and the allocation of costs based on proportionate responsibility.

Orders