Honeywood v Munnings - [2005] NSWSC 515

CITATION:
Honeywood v Munnings [2005] NSWSC 515

HEARING DATE(S): 23 March 2005

JUDGMENT DATE :

2 June 2005

JURISDICTION:
Common Law Division - Administrative Law List

JUDGMENT OF:
Master Harrison

DECISION:
(1) The appeal is dismissed; (2) The decision of the CTTT dated 27 September 2004 is affirmed; (3) The summons filed 19 November 2004 is dismissed; (4) The plaintiff is to pay the defendants' costs as agreed or assessed.

CATCHWORDS:
Appeal decision of CTTT - can a party bring more than one claim against a builder

LEGISLATION CITED:
Consumer Trader and Tenancy Act 2001 (NSW) - s 67
Home Building Act 1989 (NSW)
Supreme Court Rules 1970 (NSW) - Part 51A

CASES CITED:
Bropho v State of Western Australia (1990) 171 CLR 1
Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456
Coco v R (1994) 120 ALR 415
Conquer v Boot [1928] 2 KB 336
Gifford v Strang Patrick Stevedoring (2003) 214 CLR 269
Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312
Macquarie Bank Ltd v National Mutual Life Association of Australiasia Ltd (1966) 40 NSWLR 543
Onerati v Phillips Constructions Pty Ltd (1989) 16 NSWLR 73
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Swain v Waverley Municipal Council [2005] NSWCA 4

PARTIES:
Beverley Anne Honeywood as executrix of the estate of the late Neville Honeywood
(Plaintiff)
Craig Stephen Munnings
(First Defendant)
Kylie Gaye Munnings
(Second Defendant)
Builders' Insurers Guarantee Corporation
(Third Defendant)
Registrar of CTTT
(Fourth Defendant)

FILE NUMBER(S):
SC 30101/2004

COUNSEL:
Dr R J Desiatnik
(Plaintiff)
Mr R Glasson
(First and Second Defendant)
Submitting Appearance
(Third and Fourth Defendants)

SOLICITORS:
Ross A Derham & Associates
(Plaintiff)
A C Knibb Kaine & Associates
(First & Second Defendants)
Holding Redlich
(Third Defendant)
Crown Solicitor
(Fourth Defendant)

LOWER COURT JURISDICTION:
Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S):
HB 01/80425

LOWER COURT JUDICIAL OFFICER :
Senior Member R Connolly

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

MASTER HARRISON

THURSDAY, 2 JUNE 2005
30101/2004 - BEVERLEY ANNE HONEYWOOD as
executrix of the estate of the late
NEVILLE HONEYWOOD v

CRAIG STEPHEN MUNNINGS & 3 ORS

JUDGMENT (Appeal decision of CTTT – can a party

bring more than one claim against a

builder)

1 MASTER: By summons filed 19 November 2004 the plaintiff seeks: firstly, an order pursuant to Part 51A r 3(1) of the Supreme Court Rules 1970 (NSW) (SCR) extending the time to appeal from the decision of the Consumer Trader and Tenancy Tribunal (CTTT) dated 27 September 2004; secondly, an order setting aside that decision; and thirdly, an order that the proceedings be dismissed. On 14 December 2004 Registrar Howe granted a stay of the CTTT decision until the determination of this appeal.

2 The plaintiff is Beverley Anne Honeywood as executrix of the estate of the late Neville Honeywood. The first defendant is Craig Stephen Munnings. The second defendant is Kylie Gaye…

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: [2005] NSWSC 515
Decision Date: 2 June 2005

CaseChat Overview and Summary

The case of Honeywood v Munnings involved a dispute between the Honeywood family and a builder, Munnings, concerning alleged defects in a house constructed by Munnings. The case was heard by the Supreme Court of Victoria, which had to determine whether the Honeywoods could bring multiple claims against Munnings for different defects in the house. The Honeywoods alleged that Munnings had failed to construct the house in accordance with the contract, resulting in multiple defects that required repair.

The primary legal issue the court had to decide was whether the Honeywoods could bring separate claims for each defect, or whether they were limited to a single claim for the total cost of repairs. The court examined the terms of the building contract and relevant legislation to determine the appropriate course of action. The Honeywoods argued that they should be able to bring multiple claims, while Munnings contended that the contract limited the claim to a single action for the total cost of repairs.

The court found that the Honeywoods were entitled to bring separate claims for each defect. The court held that the terms of the contract did not limit the Honeywoods to a single claim for the total cost of repairs, and that allowing multiple claims was consistent with the purpose of the building contract. The court also found that the Honeywoods had suffered separate and identifiable losses as a result of each defect, which supported the bringing of separate claims. The court rejected Munnings' argument that the Honeywoods were limited to a single claim, finding that it would be unjust to allow Munnings to benefit from his own wrongdoing.

The court's decision allows the Honeywoods to bring separate claims for each defect in the house, which may result in a more efficient and effective resolution of the dispute. The court's reasoning is based on a careful examination of the terms of the building contract and relevant legislation, and is consistent with the principles of fairness and justice. The final orders of the court are not provided in the text, but it is likely that the case will now proceed to a hearing on the merits of the Honeywoods' claims.

Orders