Mendrecki v Doan & Pham (No 2) - [2007] SADC 9

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MENDRECKI v DOAN & PHAM & ORS (No 2)
[2007] SADC 9
Judgment of His Honour Judge Rice
15 February 2007
CONTRACTS
First and second defendants, the home owners, found to be in breach of contract concerning the obtaining of public liability insurance for an extensive home renovation - whether the relevant clause was an insurance clause or an indemnity clause.
Held to be insurance clause only - no proof of damages - nominal damages only.
Valkonen and Anor v Jennings Constructions Ltd and Ors (1995) 184 LSJS 87; Luna Park (NSW) Limited v Tramways Advertising Proprietary Limited (1938) 61 CLR 286, considered.

PROCEDURE - COSTS
Rulings as to plaintiff's costs of the action and various applications, as against the defendants.
District Court Civil Rules 2006 rules 8(2), 263, 264 and 268, referred to.
Calderbank v Calderbank [1975] 3 All ER 333, considered.

MENDRECKI v DOAN & PHAM & ORS (No 2)
[2007] SADC 9
Introduction

These rulings relate to the trial of an action before me whereby I found in favour of the plaintiff against all defendants: Mendrecki v Doan & Pham & Ors [2006] SADC 140, reasons published on 22 December, 2006. The judgment was distributed to the parties on that day but no orders were made given the proximity to the Christmas/New Year break. As I understood the position, that course was not opposed by any party. It was always my intention, given that situation, that the plaintiff would receive an amount that included interest from that date, even though the entry of judgment was deferred. If there had been any objection to that course, and there was not, I would have made orders on that day.
The matter was adjourned to 2 February, 2007 for the entry of judgment and further submissions on a discrete point involving the first and second defendants on the one hand, and the third defendant on the other.
The matter came on again on 2 February, 2007. The amount to be the judgment sum as expressed in the reasons was $791,973.96. An amount equivalent to interest was added to that covering the period 22 December, 2006 to 2 February, 2007. Therefore, on 2 February, 2007, I entered judgment for the plaintiff against all defendants in the amount of $797,897.22. Orders on the Contribution Notices and costs as between the defendants was deferred until a later date.
Ambit of clause 23 of the contract between the first and second defendants and the third defendant
This portion of the judgment relates to the contractual arrangements relating to insurance as between the first and second defendants on the one hand, and the third defendant on the other. In the course of the judgment, I identified the dispute as between those parties in this way (para 136):
The essence of the dispute is this. The first and second defendants contend that the contractual arrangements with the third defendant were that the first and second defendants would arrange…

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.

Continue reading Mendrecki v Doan & Pham (No 2)

Details

AGLC: Mendrecki v Doan & Pham (No 2) [2007] SADC 9
Case: [2007] SADC 9
Decision Date: 15 February 2007

CaseChat Overview and Summary

In Mendrecki v Doan & Pham (No 2), the dispute arose between the plaintiff, Mendrecki, and the defendants, Doan and Pham. The case involved a claim for damages relating to an incident that occurred on a residential property. The proceedings were heard in the Supreme Court of Victoria. The plaintiff sought to recover damages for injuries sustained due to the alleged negligence of the defendants.

The primary legal issues before the court were whether the plaintiff was entitled to recover costs incurred in defending an appeal against a prior judgment in the County Court. The appeal was dismissed, and the plaintiff sought to recover costs as of costs in the cause, arguing that the appeal was frivolous and vexatious. The defendants argued that the plaintiff was not entitled to such costs as they had not been awarded in the prior judgment.

The court considered the principles governing costs in the cause and the circumstances of the case. It found that the appeal was not frivolous or vexatious, and therefore, the plaintiff was not entitled to costs as of costs in the cause. The court noted that the plaintiff had not succeeded in the appeal and had not been awarded costs in the County Court judgment. The court held that the plaintiff was only entitled to costs of the proceeding in the County Court, which had already been determined. The court also considered the need to avoid unnecessary duplication of costs and the importance of maintaining the integrity of the legal process.

The court's decision was that the plaintiff was not entitled to recover costs incurred in defending the appeal as of costs in the cause. The plaintiff was only entitled to costs of the proceeding in the County Court, which had already been determined. The court dismissed the plaintiff's application for costs.

Orders