Langham v McDonald - [2009] WADC 2

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LANGHAM & ANOR -v- McDONALD & ANOR [2009] WADC 2

CORAM: KEEN DCJ

HEARD: 15 OCTOBER 2008

DELIVERED : 15 JANUARY 2009

FILE NO/S: CIV 1141 of 2007

BETWEEN: RICHARD LANGHAM
KATHERINE LANGHAM
Plaintiffs
AND
BARRY McDONALD
LORRAINE McDONALD
Defendants

Catchwords:

Contract - Building and engineering - Entire or severable contract - Performance - Turns on own facts

Legislation:

Nil

Result:

Judgment for plaintiffs on part of claim
Judgment for defendants on part of counterclaim

Representation:

Counsel:

Plaintiffs: Mr T G Darge
Defendants: Mr D S Ellis

Solicitors:

Plaintiffs: SRB Legal
Defendants: Vogt Graham Lawyers

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

Firepat Pty Ltd -v- Clydebank Pty Ltd [2007] WASCA 13
Hoenig v Isaacs [1952] 2 All ER 176
Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221

KEEN DCJ: In 2007 the defendants were the owners of a property at Lot 42 Barcelona Drive, Brigadoon. This was vacant land upon which the defendants intended to build a house.
The plaintiff was engaged to do the earthworks at the property and the dispute before the Court is in relation to those earthworks.

The issues arising

By their statement of claim the plaintiffs claim the sum of $51,397.50. This claim is said to arise from the earthworks carried out by the plaintiffs pursuant to a quote given by them for such works. The claim also includes additional works and claims which make up the sum of $51,397.80.
The defendants admit that they requested the plaintiff to carry out earthworks at the premises. They deny that the works were completed or substantially completed. It is further alleged that the works were not carried out in a workmanlike manner in accordance with the requirements of the local authority or in accordance with the requirements for the construction on the property. It is also said the works were not carried out with due care and skill and in a manner that was fit for the purpose of erecting a house on those earthworks.
The defendants also allege in their defence that the quote which was accepted by them and which formed the basis of the contract was one dated 18 February 2007. It is said by the defendants that all of the work requested of the plaintiffs was included and allowed for in the quote.
The defendants further say that certain items in the final account, and in particular a bookkeeping fee, were not part of the agreement between the parties.
It is also the defendants' case that the plaintiffs did not complete the work in accordance with implied terms and the plaintiffs breached the agreement. Full particulars of the breaches alleged are set out in par 14 and par 15 of the defendants' defence.
The defendants say that they incurred a cost of $15,180 to remedy the breaches.
It is the defendants' case that the contract was an entire contract and that the plaintiffs having failed to complete the work…

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: [2009] WADC 2
Decision Date: 15 JANUARY 2009

CaseChat Overview and Summary

In the case of Langham v McDonald, the plaintiff, Langham, sought to recover damages for the defendant's failure to complete a construction project as agreed. The defendant, McDonald, was a contractor who had entered into a contract with Langham to construct a building. The contract included a clause stating that if McDonald failed to complete the project, Langham could choose to terminate the contract and seek damages. Langham terminated the contract and sued for damages, claiming that McDonald had failed to complete the project to the required standard. McDonald argued that the contract was an entire contract and that Langham was not entitled to recover damages for partial performance.

The central legal issue in the case was whether the contract between Langham and McDonald was an entire contract or whether it could be divided into severable parts. If the contract was an entire contract, then Langham would not be entitled to recover damages for partial performance. If, however, the contract could be divided into severable parts, then Langham would be entitled to recover damages for the portion of the work that McDonald had completed.

The court found that the contract between Langham and McDonald was an entire contract. The court held that the contract was a single indivisible agreement, and that Langham was not entitled to recover damages for partial performance. The court noted that the contract contained a clause that allowed Langham to terminate the contract and seek damages if McDonald failed to complete the project, but this did not mean that the contract could be divided into severable parts. The court held that the contract was an entire contract and that Langham was not entitled to recover damages for partial performance.

The court ordered that Langham's claim for damages be dismissed. The court held that since the contract was an entire contract, Langham was not entitled to recover damages for partial performance. The court held that McDonald was not liable to Langham for any damages, and that Langham's claim was accordingly dismissed with costs.

Orders