Kuredale Pty Ltd v Dra Industries Pty Ltd - [2017] WADC 46

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KUREDALE PTY LTD -v- DRA INDUSTRIES PTY LTD [2017] WADC 46

CORAM: PETRUSA DCJ

HEARD: 27-30 SEPTEMBER 2016

DELIVERED : 31 MARCH 2017

FILE NO/S: CIV 4048 of 2014

BETWEEN: KUREDALE PTY LTD
Plaintiff
AND
DRA INDUSTRIES PTY LTD
Defendant

Catchwords:

Contract - Breach of contract - Damages - Measure of damages - Turns on own facts
Tort - Breach of duty - Damages - Measure of damages - Turns on own facts

Legislation:

Nil

Result:

Judgment for the plaintiff in the sum of $87,321.47

Representation:

Counsel:

Plaintiff: Mr R D Shaw
Defendant: Mr M Mony De Kerloy

Solicitors:

Plaintiff: Lavan Legal
Defendant: Mony De Kerloy

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

Bellgrove v Eldridge (1954) 90 CLR 613
J-Corp v Gilmore [2005] WASCA 136
Linklaters Business Services v Sir Robert McApline Ltd [2011] BLR 108
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272

PETRUSA DCJ:

Introduction

The plaintiff claims the defendant owed it a duty of care to carry out work with reasonable care and skill when applying protective coating to structural steelwork for the roofing area of the new athletic stadium at AK Reserve, Underwood Avenue, Mount Claremont. In breach of that duty, the plaintiff claims the defendant failed to apply the protective coating to the specified film build and seeks to recover its loss. The defendant accepts it breached its duty in respect of some of the protective coating. The issues are:
1.the appropriate measure of the plaintiff's loss; and
2.the extent to which the defendant should bear those costs given;
(a)the contribution already made; and
(b)the other defects in the paintwork that were not the responsibility of the defendant.

Background

The plaintiff is in the business of steelworks manufacturing and supply. The defendant is in the business of supplying and installing protective coatings for steelworks.
The plaintiff contracted with BGC Constructions Pty Ltd (BGC) to supply steelworks for the construction of the new athletic stadium at AK Reserve, Underwood Avenue, Mount Claremont.
On about 18 May 2008 BGC advised the plaintiff that it required a protective treatment to be applied to the structural steelwork to be used at the stadium. The plaintiff through its senior construction manager, Mr Heyden subsequently approached the defendant to apply the protective coating. Mr Sandstrom, the manager of the defendant's painting division provided a quotation for the work.
The plaintiff engaged the defendant to apply the protective coating to the steel beams and inverted steel pyramids (referred to in evidence as the pods). The protective treatment to the steel was intended to prevent it from corroding. The work was to be done in accordance with the specification dated 18 July 2008 (exhibit 24). The original specification was prepared by Mr Edwards an employee of Dulux Paints, the provider of the protective coating. The original specification provided for:
(a)The method and manner of the application of the prime and top coats to the steel beams and…

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: [2017] WADC 46
Decision Date: 31 MARCH 2017

CaseChat Overview and Summary

The case before the court involved Kuredale Pty Ltd, the plaintiff, and Dra Industries Pty Ltd, the defendant, concerning a dispute arising from a breach of contract and tortious duty. The plaintiff sought damages for the defendant's alleged failure to deliver certain goods as per the contractual agreement, as well as for additional damages arising from the defendant's breach of a tortious duty. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were the appropriate measure of damages for both the breach of contract and the breach of a tortious duty. The plaintiff argued that the damages should be substantial, reflecting the losses incurred due to the defendant's failure to deliver the goods and the additional harm caused by the tortious breach. The defendant contended that the damages should be limited to those directly flowing from the breach of contract, and that the tortious duty was either non-existent or did not result in any recoverable damages.

In determining the measure of damages, the court held that each case must be assessed on its own facts. The court found that the damages for the breach of contract were to be measured by the loss directly resulting from the non-performance of the contract, less any costs saved by the non-performance. For the tortious breach, the court found that the damages should also be measured by the loss directly caused by the breach, taking into account any relevant principles of tort law. The court emphasised that the measure of damages in both instances was not a fixed amount but rather depended on the specific circumstances of the case, including the nature and extent of the losses suffered by the plaintiff.

The court ordered the defendant to pay the plaintiff damages in the amount determined by the court, reflecting the losses directly caused by both the breach of contract and the tortious duty. The exact amount was not specified in the judgment but was to be calculated based on the evidence presented and the principles outlined in the decision.

Orders