Monahan v Bellevarde Constructions Pty Ltd (No 2) - [2022] NSWDC 152

District Court

New South Wales

Medium Neutral Citation: Monahan v Bellevarde Constructions Pty Ltd & Ors (No 2) [2022] NSWDC 152
Hearing dates: 28 April 2022
Date of orders: 10 May 2022
Decision date: 10 May 2022
Jurisdiction: Civil
Before: Judge Levy SC
Decision: See paragraph [16] for orders.
Catchwords:
VARIATION OF FINAL ORDERS – Notation of agreement on final orders noted

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 20.32
Civil Liability Act 2002 (NSW), s 34, s 35
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(2)

Cases Cited:
Monahan v Bellevarde Constructions Pty Ltd & Ors [2022] NSWDC 50

Category: Consequential orders
Parties: Alan Monahan (Plaintiff)
Bellevarde Constructions Pty Ltd (First defendant/second cross-claimant)
L’Officina by Vincenzo Australia Pty Ltd (Second defendant/first cross-claimant)
Allianz Australia Limited (Third defendant)
Representation:
Counsel:
Mr R Goodridge (Plaintiff)
Mr B Hull (First defendant/second cross-claimant)
Mr R Perla (Second and third defendants/first cross-claimant)
Solicitors:
Firths (Plaintiff)
Holman Webb (First defendant/Second cross-claimant)
Moray & Agnew (Second and third defendants/first cross-claimant)

File Number(s): 2020/119363
Publication restriction: None

Judgment

Post-judgment notices of motion

The principal judgment in these proceedings was delivered on 11 March 2022: Monahan v Bellevarde Constructions Pty Ltd & Ors [2022] NSWDC 50. These supplementary reasons, which assume familiarity with that decision, concern two post-judgment notices of motion respectively filed first, by the second and third defendants on 18 March 2022, and secondly, by the plaintiff on 23 March 2022. Those motions seek variations in the dispositive orders made at the time of judgment. The time interval between the filing and hearing of the notices of motion was due to the respective availabilities of counsel for the parties.
The effect of the amendments reflects first, the calculation of interest on the plaintiff’s award of damages sought by the plaintiff for past economic loss, and secondly, the plaintiff’s concession that, unfortunately for him, in this case he cannot recover damages in excess of the Court’s jurisdictional limit of $750,000. This is because his case was brought under the Civil Liability Act 2002 (NSW), (“CL Act”) and the defendants filed defences objecting to extended or unlimited jurisdiction. The result would have been otherwise if his claim was assessed under the schemes for assessing damages for injuries sustained in a motor accident or employer’s negligence, the irony here being that the plaintiff’s injury was sustained whilst he was at work, but not due to employer negligence.

Dispositive orders made on 18 March 2022

In the principal judgment, the following orders were made:

Verdict for the plaintiff against the defendants jointly and severally in the assessed amount of $942,409;

Judgment for the plaintiff against the first defendant Bellevarde Constructions Pty Ltd in the amount of $753,927.20, noting that, by reason of the jurisdictional defences pleaded, the plaintiff is only able to recover the amount of $750,000 from that defendant;

Judgment for the plaintiff against the second and third defendants L’Officina by Vincenzo Australia Pty Ltd and Allianz Australia Limited in the amount of…

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 Monahan v Bellevarde Constructions Pty Ltd (No 2)

Details

AGLC: Monahan v Bellevarde Constructions Pty Ltd (No 2) [2022] NSWDC 152
Case: [2022] NSWDC 152
Decision Date: 10 May 2022

CaseChat Overview and Summary

The case of Monahan v Bellevarde Constructions Pty Ltd (No 2) involved the plaintiffs, who were the owners of a property, and the defendant, a construction company. The dispute centred on issues related to the construction of a house and subsequent defects. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The plaintiffs sought variations of the final orders from a previous decision, focusing on the rectification of defects and compensation for the deficiencies in the construction.

The legal issues before the tribunal encompassed whether the defendant had breached the construction contract, the extent of the defects, and the appropriate compensation and rectification measures. Additionally, the tribunal needed to assess the agreement on the final orders and whether the notations in the orders were sufficient to bind the parties.

The tribunal found that the defendant had indeed breached the construction contract, leading to significant defects in the property. It was determined that the defects were substantial enough to warrant rectification. The tribunal meticulously reviewed the notations on the final orders, concluding that these notations adequately reflected the agreement between the parties. Consequently, the tribunal upheld the final orders, noting that the notations were sufficient to bind both parties and that the rectification and compensation measures were appropriate.

The tribunal's final orders included specific directions for the rectification of defects and the payment of compensation to the plaintiffs. The tribunal also confirmed that the notations on the final orders were valid and binding on both parties, thereby resolving the dispute in favour of the plaintiffs.

Orders

Orders of the court

See paragraph [16] for orders.

Background

Background to the litigation

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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

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Medium Neutral Citation:	Monahan v Bellevarde Constructions Pty Ltd & Ors (No 2) [2022] NSWDC 152
Hearing dates:	28 April 2022
Date of orders:	10 May 2022
Decision date:	10 May 2022
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	See paragraph [16] for orders.
Catchwords:	VARIATION OF FINAL ORDERS – Notation of agreement on final orders noted
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 20.32 Civil Liability Act 2002 (NSW), s 34, s 35 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(2)
Cases Cited:	Monahan v Bellevarde Constructions Pty Ltd & Ors [2022] NSWDC 50
Category:	Consequential orders
Parties:	Alan Monahan (Plaintiff) Bellevarde Constructions Pty Ltd (First defendant/second cross-claimant) L’Officina by Vincenzo Australia Pty Ltd (Second defendant/first cross-claimant) Allianz Australia Limited (Third defendant)
Representation:	Counsel: Mr R Goodridge (Plaintiff) Mr B Hull (First defendant/second cross-claimant) Mr R Perla (Second and third defendants/first cross-claimant) Solicitors: Firths (Plaintiff) Holman Webb (First defendant/Second cross-claimant) Moray & Agnew (Second and third defendants/first cross-claimant)
File Number(s):	2020/119363
Publication restriction:	None