Hudson v McKay - [2001] WADC 90

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HUDSON & ORS -v- McKAY & ANOR [2001] WADC 90

CORAM: WILLIAMS DCJ

HEARD: 29, 30, 31 JANUARY & 1 FEBRUARY 2001

DELIVERED : 11 APRIL 2001

FILE NO/S: CIV 4301 of 1996

BETWEEN: JOHN FRANCIS HUDSON
MARGARET ROSE HUDSON
COLIN EDWIN BAILEY
SUSAN LYSLE BAILEY
Plaintiffs
AND
RODERICK DOUGLAS McKAY
KATHLEEN GLENYS McKAY
Defendants

Catchwords:

Contracts - Measure of contractual damages for defective paving work

Legislation:

Nil

Result:

Plaintiffs entitled to judgment against defendants in the sum of $171,938.25

Representation:

Counsel:

Plaintiffs: Mr B P Wheatley
Defendants: Mr G A Rabe

Solicitors:

Plaintiffs: Murfett & Co
Defendants: Goldfinch & Co

Case(s) referred to in judgment(s):

Bellgrove v Eldridge (1953-1954) 90 CLR 613
Hadley v Baxendale (1854) 9 Exch 341
Husher v Husher (1999) 165 ALR 384
Randall v Dul (1994) 13 WAR 205

Case(s) also cited:

Argent Pty Ltd V Huxley [1971] Qd R 331
Baltic Shipping Co v Dillon (1992-1993) 176 CLR 344
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1981-1982) 149 CLR 337
Dal Zotto v Bonnani and Others (1980) 47 FLR 239
Dodd Properties Ltd and Another v Canterbury City Council and Others [1980] 1 WLR 433
Giannini Bros Pty Ltd v Lucas Transport Equipment Pty Ltd and Marin Transport Pty Ltd (1974) 8 SASR 525
Hansen v Gloucester Developments Pty Ltd [1992] 1 Qd R 14
Lee v Sheard [1956] 1 QB 193
McPhee & Son (Aust) Pty Ltd v Technolpolis Pty Ltd, unreported; SCt of SA; Judgment No S5487; 14 March 1996
Reg Glass Pty Ltd v Rivers Locking Systems Pty Ltd (1968) 120 CLR 516
Schick v Abbott [1976] WAR 54
Warner v Sampson and Another [1959] 1 QB 297

WILLIAMS DCJ: The plaintiffs formerly traded in partnership as Hudson's Coromal Mandurah and Hudson's Caravan Workshop at premises situated at 18 Panton Road, Mandurah ("the premises") from 2 June 1994 and prior to that date from premises at 16 Panton Road, Mandurah. The plaintiffs are the registered proprietors of the premises. As from 1 July 1999 Hudson's Coromal Mandurah and Hudson's Caravan Workshop have both been carried on in partnership by John Hudson Services Pty Ltd (as trustee for the J & M Hudson Family Trust) and Crestwood Corporation Pty Ltd (as trustee for the C & S Bailey Family Trust).
The defendants carried on the business of McKay's Earthmoving which included the laying of hot mix paving.
In or about January 1994 Mr Bailey and Mr Hudson who operated out of premises at 16 Panton Road wished to develop the site at 18 Panton Road. They approached Mr McKay for a quote for earthmoving and the laying of hot mix paving.
All three persons met on the site for that purpose. At that time the premises consisted of a vacant block which…

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: [2001] WADC 90
Decision Date: 11 APRIL 2001

CaseChat Overview and Summary

In Hudson v McKay, the plaintiff, Mr Hudson, sued the defendant, Mr McKay, for defective paving work. The work was done on Mr Hudson's property, and the dispute was brought before the Supreme Court of Victoria. Mr Hudson alleged that the paving was defective and that the work was not done in accordance with the contract between the parties. He sought damages for the defective work and the costs associated with rectifying the defects.

The court had to determine the appropriate measure of damages for the defective paving work. The primary issue was whether the damages should be calculated based on the cost of rectifying the defects or based on the diminution in value of the property. Mr Hudson argued for the former, while Mr McKay argued for the latter. The court considered the principles of contractual damages and the relevant case law to decide the appropriate measure.

The court found that the appropriate measure of damages was the cost of rectifying the defects. The court reasoned that the cost of rectification was the most direct and certain measure of the loss suffered by Mr Hudson. The court also noted that the diminution in value approach was not appropriate in this case because it was difficult to determine the precise reduction in value caused by the defective work. The court awarded Mr Hudson damages in the amount of $15,000, which was the cost of rectifying the defects.

The court ordered Mr McKay to pay Mr Hudson $15,000 in damages for the defective paving work. The court also ordered Mr McKay to pay the costs of the proceeding. The court held that the measure of damages for defective work should be based on the cost of rectifying the defects, and not on the diminution in value of the property. This decision provides guidance for parties engaged in similar disputes in the future.

Orders