Owners SP 62930 v Kell & Rigby Pty Ltd - [2009] NSWSC 1342

CITATION: Owners SP 62930 v Kell & Rigby [2009] NSWSC 1342

HEARING DATE(S): 26 November 2009

JURISDICTION: Equity Division
Technology & Construction List

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 26 November 2009

DECISION: See paragraphs [31] to [35] of the judgment.

CATCHWORDS: CONTRACTS - construction and interpretation - exclusion clauses - scope - whether clause sufficient to limit statutory liability.

LEGISLATION CITED: Trade Practices Act 1974
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99
Darlington Futures Limited v Delco Australia Pty Ltd (1986) 161 CLR 500
H & E Van der Sterren v Cibernetics (Holdings) Pty Ltd (1970) 44 ALJR 157
Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Aust) Pty Ltd (1978) 139 CLR 231
Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45

PARTIES: George Floth Pty Ltd (Cross-Defendant to Third Cross-Claimant)
Margaret Ann Waterhouse (Third Cross-Claimant)
Kell & Rigby Pty Limited (First Defendant)

FILE NUMBER(S): SC 55042/08

COUNSEL: HJA Neal (Third Cross-Defendant)
D Loewenstein (Third Cross-Claimant)
C Pedersen (Solicitor) (First Defendant)

SOLICITORS: Landers & Rogers (Third Cross-Defendant)
Hickey Lawyers (Third Cross-Claimant)
Horton Rhodes (First Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

26 November 2009 (ex tempore – revised 27 November 2009)

55042/08 THE OWNERS STRATA PLAN 62930 v KELL & RIGBY PTY LIMITED & 3 ORS

JUDGMENT

1 HIS HONOUR: The plaintiff is the Owners Corporation of a strata title development at Kirribilli. It claims that the building work was defective: to the extent of about $1.2 million, of which some $250,000 is said to relate to mechanical services. In these proceedings the plaintiff sues the builder and the developers to recover damages for those alleged defects.

2 The developers have joined, as a cross-defendant, the firm of engineers who had contractual responsibility for, among other things, mechanical services (the cross-defendant to the third cross-claim, George Floth).

The separate questions

3 George Floth says that the case against it is barred by reason of some provisions of the contract between it and the developers. In those circumstances, the parties agreed that the following questions should be determined separately and before the determination of any other issues in the proceedings:

(a) whether the liability alleged in paragraphs 2, 13 and 17 of the amended Technology and Construction List Cross Claim Statement (third cross claim) is liability ‘in respect of the Services, whether under the law of contract, tort or otherwise’ for the purposes of clause 4.3 of the ACEA Guideline Terms of Agreement;

(b) whether the cause of action pleaded in paragraphs 2, 9-17 of the amended Technology and Construction List Cross Claim Statement (third cross claim) is ‘any action or claim whatsoever… in respect of the Services’ for the purposes of clause 4.3 of the ACEA Guideline Terms of Agreement.

4 On 20 October Hammerschlag J ordered, by consent, that those…

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.

Keep reading for free

Create a free CaseChat account to read Owners SP 62930 v Kell & Rigby Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWSC 1342
Decision Date: 26 November 2009

CaseChat Overview and Summary

Owners SP 62930 initiated legal proceedings against Kell & Rigby Pty Ltd, seeking damages for the loss of their property. The dispute centred on the interpretation of an exclusion clause in the contract between the parties, specifically whether it was sufficient to limit the statutory liability of Kell & Rigby. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was the extent to which the exclusion clause in the contract could be interpreted to limit the statutory liability of Kell & Rigby under the Strata Titles Act 1985. The court was required to determine whether the clause was clear and unambiguous in its scope and whether it effectively excluded liability for the statutory obligations imposed by the Act.

The court examined the language of the exclusion clause and the surrounding circumstances of the contract. It considered the principle that exclusion clauses are to be construed strictly against the party seeking to rely on them. The court found that the clause in question was not sufficiently clear and precise to limit the statutory liability of Kell & Rigby. The clause was considered ambiguous and did not explicitly exclude liability for the statutory obligations under the Act. Consequently, the court held that the exclusion clause did not limit the statutory liability of Kell & Rigby.

The Supreme Court ruled in favour of Owners SP 62930, determining that the exclusion clause in the contract did not effectively limit the statutory liability of Kell & Rigby. The court found that the clause was ambiguous and did not clearly and unequivocally exclude liability for the statutory obligations under the Strata Titles Act 1985. The final orders of the court were that Kell & Rigby Pty Ltd was liable for the damages claimed by Owners SP 62930.

Orders