JPQS Pty Ltd v Cosmarnan Constructions Pty Ltd

CITATION:	JPQS P/L v Cosmarnan Constructions P/L & 3 Ors [2003] NSWCA 66 revised - 3/07/2003
HEARING DATE(S):	31/03/03
JUDGMENT DATE:	2 July 2003
JUDGMENT OF:	Mason P at 1; Meagher JA at 7; Beazley JA at 32
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	Torts - duty of care - reliance on accuracy of quantity surveyor's reports- application of rule in Jones v Dunkel to testimonies of doubtful relevance.
CASES CITED:	Jones v Dunkel (1959) 101 CLR 298 Armory v Delamirie (1722) 93 ER 664; 1722 (1) Strange 505
PARTIES :	JPQS Pty Limited (Appellant) Cosmarnan Constructions Pty Limited (1st Repondent) Bellora Pty Limited (2nd Respondent) Giovanni Scundi (3rd Respondent) Maria Scundi (4th Respondent)
FILE NUMBER(S):	CA 40380 of 2002
COUNSEL:	A: B Walker SC & S Kerr R: M Tobias SC & P Tomasetti
SOLICITORS:	A: Colin Biggers & Paisley R: Galluzzo Golotta Andriano Simone

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 9775 of 1999
LOWER COURT JUDICIAL OFFICER :	Rolfe DCJ

CA 40380 of 2002

MASON P
MEAGHER JA
BEAZLEY JA

Wednesday 2 July 2003

JPQS PTY LIMITED v COSMARNAN CONSTRUCTION PTY LIMITED

FACTS

The appellant was a bank-approved quantity surveyor. The four respondents together constituted a joint venture engaged in the development of certain land situated at Bossley Park. Pursuant to the respondents’ lending arrangements, the appellant was required to certify as to the correctness of progress claims submitted to him by the builders engaged by the respondents.

At trial, the respondents sued the appellant in contract and in tort. Rolfe DCJ dismissed the claim in contract, but held that the respondents had a well-founded claim in tort, viz ., that every time the appellant certified as to the correctness of a progress report he made negligent misrepresentations both as to the degree of completion of the works and as to the quality of the workmanship of such building work which had been completed. The respondents gave evidence that they relied on the appellant’s certificates for the purpose of presenting progress reports to their bank for payment.

HELD per Meagher JA, dismissing the appeal (Mason P and Beazley JA agreeing):

i. The appellant’s duty of care to the respondents arose from the latter’s reliance on the accuracy of the appellant’s certifications, for the purpose of presenting the relevant reports to their bank.

ii. The principle in Jones v Dunkel (1959) 101 CLR 298 or, as it should more properly be called, the rule in Armory v Delamirie (1722) 93 ER 664; (1722) 1 Strange 505, had no application to the present case, where (1) the relevance of the absent witness’s testimony was doubtful, and (2) where a finding of fact had been made in the respondents’ favour by the trial judge. The fact that the absent witness’s evidence, if it were given, would not have supported that finding, could not disturb the finding that was actually made.

HELD per Mason P (Beazley JA agreeing)

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