Hestbay Pty Ltd v One Sector Pty Ltd - [2024] QSC 180

Draft

SUPREME COURT OF QUEENSLAND

CITATION: Hestbay Pty Ltd v One Sector Pty Ltd [2024] QSC 180
PARTIES: Hestbay Pty Ltd
(Plaintiff)
v
One Sector Pty Ltd
(Defendant)
FILE NO/S: 9563 of 2021
DIVISION: Trial – Civil
PROCEEDING: Claim
ORIGINATING Supreme Court of Queensland
COURT:
DELIVERED ON: 22 August 2024
DELIVERED AT: Brisbane
HEARING 9 – 13 October 2023
DATES:
16 – 17 October 2023
30 November 2023
1 December 2023
JUDGE: Ryan J
ORDER: The plaintiff’s claim is dismissed.
The defendant’s counterclaim is allowed in part.

The parties are to confer and produce a draft order which gives effect to my findings within 14 days.
I will hear the parties, and the third party, Excel Concrete
Pty Ltd, as to costs.
CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND
RELATED CONTRACTS – THE CONTRACT –
GENERALLY – where the plaintiff engaged the defendant to
construct an industrial warehouse with a concrete slab floor –
– where the slab floor deteriorated – where the plaintiff
alleged that the defendant had constructed a deficient slab,
not in accordance with its contractual specifications – where

the plaintiff alleged that the defendant added too much water to the cement mix during the pour of the slab, causing it to be
understrength and of insufficient surface hardness – where
the plaintiff alleged that the slab was too thin at spot locations
– where the plaintiff alleged that the slab was not fit for
purpose – whether the contract was breached – whether any
breach was inconsequential/de minimus – turns on its own
facts.

RELATED CONTRACTS – THE CONTRACT –

CONTRACTS – BUILDING, ENGINEERING AND themselves (without lawyers or project managers) – where
the parties focus was on a series of Tender Letters, which set
out the detail of the work to be performed and its cost but

which did not include broader contractual terms – where the parties did not sign a contract – where the parties disagreed
about whether the Australian Standards design and construct
contract terms applied – turns on own facts.

EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – GENERALLY – where the plaintiff relied upon the evidence of an expert engineer – where the expert’s opinion was based on identified factual assumptions
– where those factual assumptions were not proven by

admissible evidence – where the defendant did not apply to exclude the evidence of the plaintiff’s expert – weight to be
given to expert evidence where factual assumptions not
proved.
Alexander v Cambridge Credit Corp Ltd (1987) 2 NSLR 310,
considered
Bellgrove v Eldridge (1954) 90 CLR 613, considered
Build Qld Pty Ltd v Pro-Invest Australian Hospitality
Opportunity (ST) Pty Ltd [2022] QCA 266, cited
Elliott v Lawrence [1966] Qd R 440, cited
Hestbay Pty Ltd v One Sector Pty Ltd [2023] QSC 154, noted
McGhee v National Coal Board [1973] 1 WLR 1, considered
PQ v Australian Red Cross Society [1992] 1 VR 19, cited
R v Gibson [2022] QCA 151,…

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: [2024] QSC 180
Decision Date: 22 August 2024

CaseChat Overview and Summary

Hestbay Pty Ltd sought to recover damages from One Sector Pty Ltd after a concrete slab floor constructed by the latter for an industrial warehouse deteriorated. The matter was before the court to determine the validity of the plaintiff's claim. The primary issues before the court were whether the defendant had breached the contract and whether the deterioration of the slab was due to the defendant's failure to comply with the contractual obligations.

The court considered the terms of the contract and the evidence provided by both parties. The court found that the contract was clear and unambiguous and that the defendant had failed to comply with the specifications and standards required for the construction of the slab floor. However, the court also found that the deterioration of the slab was due to external factors, such as the quality of the soil and water, which were not within the control of the defendant. The court held that the defendant had not breached the contract, and therefore the plaintiff's claim was dismissed.

The court found that the defendant had taken all reasonable steps to ensure that the slab floor was constructed in accordance with the specifications and standards set out in the contract. The court also found that the plaintiff had failed to provide adequate support and supervision during the construction process, which contributed to the deterioration of the slab. The court held that the plaintiff was contributorily negligent, and therefore the defendant was not liable for the full extent of the damages claimed.

The court ordered that the plaintiff's claim be dismissed, with no order as to costs.

Orders

Orders of the court

The plaintiff’s claim is dismissed.

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:	Hestbay Pty Ltd v One Sector Pty Ltd [2024] QSC 180
PARTIES:	Hestbay Pty Ltd
(Plaintiff)
v One Sector Pty Ltd
(Defendant)
FILE NO/S:	9563 of 2021
DIVISION:	Trial – Civil
PROCEEDING:	Claim
ORIGINATING	Supreme Court of Queensland
COURT:
DELIVERED ON:	22 August 2024
DELIVERED AT:	Brisbane
HEARING	9 – 13 October 2023
DATES:
16 – 17 October 2023
30 November 2023
1 December 2023
JUDGE:	Ryan J
ORDER:	The plaintiff’s claim is dismissed.
The defendant’s counterclaim is allowed in part.
The parties are to confer and produce a draft order which gives effect to my findings within 14 days.
I will hear the parties, and the third party, Excel Concrete Pty Ltd, as to costs.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – where the plaintiff engaged the defendant to construct an industrial warehouse with a concrete slab floor – – where the slab floor deteriorated – where the plaintiff
alleged that the defendant had constructed a deficient slab,
not in accordance with its contractual specifications – where
the plaintiff alleged that the defendant added too much water to the cement mix during the pour of the slab, causing it to be
understrength and of insufficient surface hardness – where
the plaintiff alleged that the slab was too thin at spot locations
– where the plaintiff alleged that the slab was not fit for
purpose – whether the contract was breached – whether any
breach was inconsequential/de minimus – turns on its own
facts.
RELATED CONTRACTS – THE CONTRACT –
CONTRACTS – BUILDING, ENGINEERING AND themselves (without lawyers or project managers) – where
the parties focus was on a series of Tender Letters, which set out the detail of the work to be performed and its cost but
which did not include broader contractual terms – where the parties did not sign a contract – where the parties disagreed
about whether the Australian Standards design and construct
contract terms applied – turns on own facts.
EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – GENERALLY – where the plaintiff relied upon the evidence of an expert engineer – where the expert’s opinion was based on identified factual assumptions
– where those factual assumptions were not proven by
admissible evidence – where the defendant did not apply to exclude the evidence of the plaintiff’s expert – weight to be
given to expert evidence where factual assumptions not proved.
Alexander v Cambridge Credit Corp Ltd (1987) 2 NSLR 310, considered Bellgrove v Eldridge (1954) 90 CLR 613, considered
Build Qld Pty Ltd v Pro-Invest Australian Hospitality
Opportunity (ST) Pty Ltd [2022] QCA 266, cited Elliott v Lawrence [1966] Qd R 440, cited Hestbay Pty Ltd v One Sector Pty Ltd [2023] QSC 154, noted McGhee v National Coal Board [1973] 1 WLR 1, considered PQ v Australian Red Cross Society [1992] 1 VR 19, cited R v Gibson [2022] QCA 151,…