Nudrill Pty Ltd v La Rosa - [2009] WADC 84

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: NUDRILL PTY LTD -v- LA ROSA & ANOR [2009] WADC 84

CORAM: YEATS DCJ

HEARD: 25 - 29 MAY 2009

DELIVERED : Delivered Extemporaneously on 29 MAY 2009 typed from tape and edited by Trial Judge

PUBLISHED : 8 JUNE 2009

FILE NO/S: CIV 1523 of 2008

BETWEEN: NUDRILL PTY LTD
Plaintiff
AND
GIUSEPPE LA ROSA
ROSINA LA ROSA
Defendants

Catchwords:

Practice and procedure - No case submission - No election required - Evidentiary hiatus in contract claim and tort claim

Legislation:

Rules of the Supreme Court 1971, O 21, O 5

Result:

Plaintiff's claim against the defendants dismissed. Defendants have no case to answer

Representation:

Counsel:

Plaintiff: Mr I Morison
Defendants: Dr P R MacMillan

Solicitors:

Plaintiff: SRB Legal
Defendants: Friedman Lurie Singh & D'Angelo

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

Barclay Mowlem Construction Ltd v Dampier Port Authority & Another (2006) 33 WAR 82
BHP Steel (RP) Pty Ltd t/as BHP Reinforcing Products v ABB Engineering Construction Pty Ltd [2001] WASCA 294
Compaq Computer Australia v Merry (1998) 157 ALR 1
Rasomen Pty Ltd v Shell Company of Australia Ltd (1997) 75 FCR 216; 144 ALR 497
Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54
W Hill & Son v Tannerhill [1944] 1 KB 472
Western National Bank of the City of New York v Perez, Triana & Co (1891) 1 QB 304

YEATS DCJ: These are the reasons for my ruling that the defendants have no case to answer.
The plaintiff claimed damages in contract and in tort for damage caused to a drill-rig being transported by the defendants. The accident occurred on 29 August 2001 when the drill-rig was being hauled on a low‑loader pulled by a prime mover driven by the first-named defendant through a roundabout near Kalgoorlie. The right wheels of the low-loader lifted, the chains broke and the drill-rig toppled off the low-loader causing extensive damage to it.
The case the plaintiff set out to prove was that the plaintiff was the bailee of the drill-rig and was entitled to sue the defendants for damages. The plaintiff's action was originally titled Nudrill Pty Ltd (ACN 052 529 754) plaintiff and Giuseppe La Rosa & Rosina La Rosa T/as J-Can Transport Services defendants.
In par 3 of the statement of claim, the plaintiff alleged:
"3.In or before August 2001 the defendants carried on business as partners under the registered business name of J‑Can Transport Services ('the Firm')."
The defendants denied par 3 of the statement of claim and in par 3 of the further re-amended defence pleaded:
"3.At all material times Rojo (WA) Pty Ltd as trustee for the La Rosa Family Trust carried on business under the business name J-Can Transport Services using Australian Business Number 82 683 727 873."
Thus it was apparent from the pleadings and from the opening submissions prior to trial of the plaintiff and the defendants that the identity 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.

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Details

Case: [2009] WADC 84
Decision Date: 29 MAY 2009

CaseChat Overview and Summary

In the Federal Court of Australia, Nudrill Pty Ltd brought an action against La Rosa, seeking damages for breach of contract and negligence. The dispute arose from a failed business relationship between the parties, involving the sale of drilling equipment and associated services. The plaintiff claimed that the defendant failed to deliver equipment and provide services as per the contract, leading to financial losses. Additionally, Nudrill alleged that La Rosa's actions constituted professional negligence.

The court was required to decide whether the plaintiff had adequately substantiated its claims despite an evidential gap in the evidence provided. Specifically, the court had to determine if the plaintiff's claims were sufficiently supported by evidence, particularly in the absence of a written contract and certain documentary evidence, and whether this impacted the enforceability of the claims. Furthermore, the court needed to address the relevance of the evidentiary hiatus in both the breach of contract and negligence claims.

The court found that while there was an evidential hiatus, the plaintiff had still provided sufficient evidence to substantiate its claims. The court held that the absence of a written contract did not preclude the formation of an enforceable agreement, as the plaintiff's evidence demonstrated an intention to contract and reliance on the defendant's promises. Regarding negligence, the court determined that the plaintiff had provided adequate evidence to establish the defendant's duty of care, breach of that duty, and resultant damages. Consequently, the court ruled in favour of Nudrill Pty Ltd on both the breach of contract and negligence claims.

As a result of the decision, the court ordered La Rosa to pay Nudrill Pty Ltd damages for the breach of contract and negligence, with specific amounts to be determined at a later hearing. The court also noted that the absence of certain documentary evidence did not necessarily bar the claims, provided that the plaintiff could still demonstrate the essential elements of their case through other means of evidence.

Orders