Lang v Cardinal Constructions Pty Ltd

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   LANG -v- CARDINAL CONSTRUCTIONS PTY LTD [2008] WASCA 244

CORAM:   WHEELER JA

PULLIN JA
BUSS JA

HEARD:   4 NOVEMBER 2008

DELIVERED          :   1 DECEMBER 2008

FILE NO/S:   CACV 13 of 2008

BETWEEN:   DAVID GRIFFITH LANG

Appellant

AND

CARDINAL CONSTRUCTIONS PTY LTD (ACN 009 045 069)
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :NISBET DCJ

Citation  :LANG -v- CARDINAL CONSTRUCTIONS PTY LTD [2008] WADC 1

File No  :APP 44 of 2007

Catchwords:

Contract - Construction of warranty clause - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr G E Nairn

Respondent:     Mr R D Shaw

Solicitors:

Appellant:     Macdonald Rudder

Respondent:     Lavan Legal

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

Expectation Pty Ltd v Pinnacle VRB Ltd [2002] WASCA 160

GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631

Masters v Cameron (1954) 91 CLR 353

1WHEELER JA:  This is an appeal from a decision of a District Court judge dismissing an appeal from a magistrate in relation to a claim for damages concerning an allegedly defective roof on a residence.  The issue which arises concerns the construction of what I would call the "warranty clause" in the contract for the building of the residence.  It arises in this way.

2On 6 August 1997, the contract was entered into.  It was for the construction of a residence on land in Cottesloe, and was entered into between the builder and the proprietor of that land.  The date of "practical completion" of the residence was 1 May 1998.  In November 2005, or thereabouts, the appellant proprietor, dissatisfied with the condition of the roof, had the roof replaced.  There have been proceedings in the Building Disputes Tribunal, pursuant to the Builders' Registration Act1939 (WA), but it is not necessary to consider those. On 22 March 2006, the appellant proprietor commenced proceedings in the Magistrates Court seeking damages in relation to the roof. The learned magistrate found that the claim was statute‑barred. He therefore dismissed the claim.

3The warranty clause was found in section 07600 of the document entitled "Specification", and was cl 107 in that section.  Including the heading to the clause, it read as follows:

Warranty

Provide to the Proprietor a warranty on the whole of the roof and roof plumbing including penetrations for pipes, flues, upstands etc. performed for mechanical equipment Sub‑Contractor which states that work shall remain waterproof and weather‑tight for the period of fifteen years from the date of Practical Completion.

4The questions which arose about the construction of this clause are whether it contemplated that the builder would provide the proprietor with a separate warranty document, and (whether a separate document was contemplated or not) whether the parties intended that the builder should immediately be bound by the terms of the warranty.  The learned magistrate considered that the clause placed an…