McKenzie v Miller - [2006] NSWCA 377

New South Wales

Court of Appeal

CITATION: McKenzie & Anor v Miller [2006] NSWCA 377

HEARING DATE(S): 30 November 2006, Friday 1 December 2006

JUDGMENT DATE:
20 December 2006

JUDGMENT OF: Handley JA at 1; Tobias JA at 2; Basten JA at 116

DECISION: (a) Appeal allowed; (b) Set aside the orders made by Judge Balla on 14 December 2005; (c) Judgment for the appellants against the respondent on liability in respect of his breaches of (i) the Agreement between the appellants and the respondent dated 27 May 2001 of clause B1.01 in respect of the provision of the services referred to in par.A3 and of clause B1.04, (ii) s.42(1) of the Fair Trading Act 1987, (iii) his duty of care both under clause B1.01 of the Agreement and at common law with respect to the provision in his letter of 21 August 2001 of his estimate of the probable construction cost of the building works the subject of the plans and specifications submitted to and approved by Orange City Council on 18 September 2001 and his failure to provide such an estimate after 18 September 2001 and the date upon which the appellants entered into the building contract with Mr Chase; (d) Remit the proceedings to the District Court for the assessment of damages only before a judge other than her Honour Judge Balla; (e) The respondent to pay the appellants’ costs of the proceedings before Judge Balla and of the appeal but to have with respect to the latter a certificate under the Suitors’ Fund Act, 1951 if otherwise qualified

CATCHWORDS: CIVIL CLAIMS – alleged breach of agreement arising from delay in the building and construction of a dwelling – costs of construction varied significantly from original estimate – whether breach of contract – whether negligence – whether breach of Fair Trading Act 1987 – weight to be given to expert evidence

LEGISLATION CITED: Fair Trading Act 1987
Suitors’ Fund Act 1951

CASES CITED: Accounting Systems 2000 (Developments) Pty Ltd v CCH (1993) 42 FCR 470
Fox v Percy (2003) 214 CLR 118
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640
I&L Securities v HTW Valuers (2002) 210 CLR 109
MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) 140 ALR 313
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39
Steedman v Baulkham Hills Shire Council [No. 2] (1993) 31 NSWLR 562

PARTIES: David McKenzie
Danuta McKenzie
Mikel Miller

FILE NUMBER(S): CA 40038/06

COUNSEL: A: G Inatey SC / A Henskens
R: N A Nicholls

SOLICITORS: A: Cheney Wilson & Law, Orange
R: Turnbull Bowles Laywers Pty ltd, Sydney

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2621/04

LOWER COURT JUDICIAL OFFICER: Balla DCJ

LOWER COURT DATE OF DECISION: 14 December 2005

CA 40038/06
DC 2621/04

HANDLEY JA
TOBIAS JA
BASTEN JA
Wednesday 20 December 2006

DAVID McKENZIE & ANOR v MIKEL…

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: [2006] NSWCA 377
Decision Date: 20 December 2006

CaseChat Overview and Summary

The appellants, McKenzie and Miller, appealed to the Court of Appeal of New South Wales against orders made by Judge Balla in the District Court. The dispute concerned an agreement for the building and construction of a dwelling, where the final costs of construction varied significantly from the original estimate provided by the respondent.

The central legal issues before the Court of Appeal were whether the respondent had breached the building agreement, whether he had acted negligently, and whether he had contravened section 42(1) of the Fair Trading Act 1987. The court was also required to consider the weight to be given to expert evidence presented during the proceedings.

The Court of Appeal found that the respondent had breached the agreement by failing to provide services as stipulated in clauses B1.01 and B1.04, and by contravening section 42(1) of the Fair Trading Act 1987. Furthermore, the court determined that the respondent had breached his duty of care, both under the agreement and at common law, in relation to the provision of his initial construction cost estimate and his subsequent failure to provide an updated estimate. The appeal was allowed, the previous orders were set aside, and judgment was entered for the appellants on liability. The proceedings were remitted to the District Court for the assessment of damages only.

Orders

Orders of the court

(a) Appeal allowed; (b) Set aside the orders made by Judge Balla on 14 December 2005; (c) Judgment for the appellants against the respondent on liability in respect of his breaches of (i) the Agreement between the appellants and the respondent dated 27 May 2001 of clause B1.01 in respect of the provision of the services referred to in par.A3 and of clause B1.04, (ii) s.42(1) of the Fair Trading Act 1987, (iii) his duty of care both under clause B1.01 of the Agreement and at common law with respect to the provision in his letter of 21 August 2001 of his estimate of the probable construction cost of the building works the subject of the plans and specifications submitted to and approved by Orange City Council on 18 September 2001 and his failure to provide such an estimate after 18 September 2001 and the date upon which the appellants entered into the building contract with Mr Chase; (d) Remit the proceedings to the District Court for the assessment of damages only before a judge other than her Honour Judge Balla; (e) The respondent to pay the appellants' costs of the proceedings before Judge Balla and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act, 1951 if otherwise qualified

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McKenzie & Anor v Miller [2006] NSWCA 377
HEARING DATE(S):	30 November 2006, Friday 1 December 2006
JUDGMENT DATE:	20 December 2006
JUDGMENT OF:	Handley JA at 1; Tobias JA at 2; Basten JA at 116
DECISION:	(a) Appeal allowed; (b) Set aside the orders made by Judge Balla on 14 December 2005; (c) Judgment for the appellants against the respondent on liability in respect of his breaches of (i) the Agreement between the appellants and the respondent dated 27 May 2001 of clause B1.01 in respect of the provision of the services referred to in par.A3 and of clause B1.04, (ii) s.42(1) of the Fair Trading Act 1987, (iii) his duty of care both under clause B1.01 of the Agreement and at common law with respect to the provision in his letter of 21 August 2001 of his estimate of the probable construction cost of the building works the subject of the plans and specifications submitted to and approved by Orange City Council on 18 September 2001 and his failure to provide such an estimate after 18 September 2001 and the date upon which the appellants entered into the building contract with Mr Chase; (d) Remit the proceedings to the District Court for the assessment of damages only before a judge other than her Honour Judge Balla; (e) The respondent to pay the appellants’ costs of the proceedings before Judge Balla and of the appeal but to have with respect to the latter a certificate under the Suitors’ Fund Act, 1951 if otherwise qualified
CATCHWORDS:	CIVIL CLAIMS – alleged breach of agreement arising from delay in the building and construction of a dwelling – costs of construction varied significantly from original estimate – whether breach of contract – whether negligence – whether breach of Fair Trading Act 1987 – weight to be given to expert evidence
LEGISLATION CITED:	Fair Trading Act 1987 Suitors’ Fund Act 1951
CASES CITED:	Accounting Systems 2000 (Developments) Pty Ltd v CCH (1993) 42 FCR 470 Fox v Percy (2003) 214 CLR 118 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 I&L Securities v HTW Valuers (2002) 210 CLR 109 MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) 140 ALR 313 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 Steedman v Baulkham Hills Shire Council [No. 2] (1993) 31 NSWLR 562
PARTIES:	David McKenzie Danuta McKenzie Mikel Miller
FILE NUMBER(S):	CA 40038/06
COUNSEL:	A: G Inatey SC / A Henskens R: N A Nicholls
SOLICITORS:	A: Cheney Wilson & Law, Orange R: Turnbull Bowles Laywers Pty ltd, Sydney
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2621/04
LOWER COURT JUDICIAL OFFICER:	Balla DCJ
LOWER COURT DATE OF DECISION:	14 December 2005