DISTRICT COURT OF QUEENSLAND
CITATION:
PARTIES: GLYNNE PARRY and BRENDAN WOUTHERS (Appellants)
v.
ELIZABETH EWART (Respondent)FILE NO/S: Application No 4450 of 1998
C 332-97DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Queensland Building Tribunal DELIVERED ON: 16 June 2000 DELIVERED AT: Brisbane HEARING DATE: 7 December 1998 JUDGE: McGill D.C.J. ORDER: Appeal allowed, order of the Tribunal varied by reducing the amount ordered to be paid by the appellants to the respondent by an amount of $7,003 from $23,729 to $16,726, and substituting “Scale F” for “Scale G” CATCHWORDS: Marshall v. Marshall [1999] 1 Qd.R. 173 – considered
Beckwith v. R (1976) 135 CLR 569 – applied
Ownit Homes Pty Ltd v. Batchelor [1983] 2 Qd.R. 124 – distinguished
Young & Martin Ltd v. McManus Childs Ltd [1969] 1 AC 454 – followed
Greaves & Co (Contractors) Ltd v. Baynham Meikle & Partners [1974] 1 WLR 1261 - cited
McKone v. Johnson [1966] 2 NSWR 471 – considered
Cable (1956) Ltd v. Hutcherson Bros Pty Ltd (1969) 123 CLR 143 – considered
Streeter v. McLennan [1959] Qd.R. 135 – followed
Equitable Debenture Assets Corporation Ltd v. Moss (1984) 2 Construction Law Journal 131 - followed
Duncan v. Blundell (1820) 3 Stark 6, 171 ER 749 - followed
Whywait Pty Ltd v. Davison [1997] 1 Qd.R. 225 - followed
Sansan Floor Co v. Forst’s Ltd [1942] 1 WWR 553 – followedCOUNSEL: R.I. Hanger QC for appellants
T.P. Sullivan for respondentSOLICITORS: Barwicks Wisewoulds for the appellants
Ebsworth & Ebsworth for the respondent
This is an appeal to the District Court from a decision of the Queensland Building Tribunal of 22 September 1998. Under the Queensland Building Services Authority Act 1991 (‘the Act”), an appeal lies from the Tribunal to this court by leave of this court: s.94. An application for such leave was filed by the appellants on 19 October 1998 and came before me on 7 December 1998; on that occasion both parties appeared by counsel, and the appellants sought to argue both the application for leave and the appeal. This is often a convenient arrangement, because it will save costs if leave is granted; otherwise the appeal would have to be argued on a later date, ordinarily before another judge, thereby increasing the costs. On this occasion, however, counsel for the respondent expressed some concern about his ability to do justice to his client’s case, since he had not expected that the appeal would be heard instanter if leave were given. I decided on that day to give leave, but adjourned the hearing of the appeal to give counsel for the respondent the opportunity either to provide submissions in writing or, if he wished to make oral submissions, to have the matter relisted by arrangement with my associate. Counsel for the appellants did not at that stage wish to add to the submissions made in support of the application for leave.
Thereafter I heard nothing more about the matter for a…
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- Case
- [2000] QDC 54
- Decision Date
CaseChat Overview and Summary
The court considered various legal precedents, including Marshall v. Marshall, Beckwith v. R, Ownit Homes Pty Ltd v. Batchelor, and Young & Martin Ltd v. McManus Childs Ltd. The court noted that the obligation of the builder may be limited to carrying out specified work in a workmanlike manner if there were detailed design drawings approved by the owner's engineer. However, in this case, the court found that the contractor had a duty to advise the client about the proper surface to be provided for the tiles and to not attempt the work unless a proper installation had been provided. The court held that the deck should have been waterproof, and the contractor had breached the implied warranty of fitness for purpose by failing to ensure that the deck was waterproof.
The court further found that the contractor had breached the terms of the building contract by failing to carry out the work in a workmanlike manner. The court accepted evidence that the penetration of water had caused damage to the supporting beams underneath the deck and that there were unprotected electrical cables under the deck. The court concluded that the contractor had not taken reasonable care to avoid foreseeable harm to the client.
The court allowed the appeal and varied the order of the Tribunal by reducing the amount ordered to be paid by the appellants to the respondent by an amount of $7,003 from $23,729 to $16,726, and substituting “Scale F” for “Scale G”.
Orders
Orders of the court
Appeal allowed, order of the Tribunal varied by reducing the amount ordered to be paid by the appellants to the respondent by an amount of $7,003 from $23,729 to $16,726, and substituting “Scale F” for “Scale G”
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Such a conclusion was reached by Newey J, the official referee, in Equitable Debenture Assets Corporation Ltd v. Moss (1984) 2 Construction Law Journal 131, where reference was made at p.132 to the judgment of Bailey J in Duncan v. Blundell (1820) 3 Stark.6, 171 ER 749, where His Lordship said: Duncan was cited with approval by Lord Upjohn in Young & Marten Ltd (supra) at p.472, and by the Court of Appeal in McKone v. Johnson [1966] 2 NSWR 471 at 473. A similar point, about whether there was in a building contract an implied warranty of fitness for purpose, was discussed by Barwick CJ in Cable (1956) Ltd v. Hutcherson Bros Pty Ltd (1969) 123 CLR 143 at 150, where His Honour noted that whether reliance was placed on the skill and judgement of the builder may be important in determining whether the builder has promised to produce a result, or merely to do specific work. In that case, where there were detailed design drawings which had been approved by the owner’s engineer, the builder’s obligation was limited to carrying out the specified work in a workmanlike manner. Counsel for the respondent has identified one decision of the Court of Appeal of British Columbia, with facts similar to those in the present case: Sansan Floor Co v. Forst’s Ltd [1942] 1 WWR 553. In that case the defendant, which was erecting a building, asked the plaintiff to lay asphalt tile flooring which the plaintiff did on a plain wooden floor which was not waterproof. As a result of water seeping through the tiles, they began to crack and buckle. The court held that it was the duty of the plaintiff to advise the defendant as to the proper surface to be provided for the tiles and not to attempt the work unless a proper installation had been provided. The court at p.558 characterised the argument for the plaintiff as being: It was submitted that it was not correct to say that waterproofing this surface was required by the Building Code of Australia F1.4, because that code required waterproofing of walls and roof, but this deck surface was neither. That is an unattractive argument; the deck being open, it functions as a roof to whatever was below. No doubt the reason why the code speaks of walls and roof is that they are ordinarily what exclude the elements from any enclosed space, but I think it an unlikely interpretation of the code that it was to be acceptable for anything other than walls and a roof in the strict sense not to be waterproof. The deck was not itself enclosed, but it was over an enclosed space. One would expect therefore that it would be required to be capable of waterproofing that enclosed space. In this case the enclosed space enclosed an indoor swimming pool. In some circumstances the need for waterproofing in such a situation may well be diminished. A swimming pool and its surroundings would be a fairly wet environment anyway, and it would be possible, I suppose, to have it set up in such a way that waterproofing something like the deck above was not necessary or assumed. Plainly, that was not the case here. The Tribunal accepted evidence that one effect of the penetration of the water was damage to the supporting beams underneath, so obviously it was not the case that this particular enclosed space was not intended to be waterproof. As well, there were unprotected electrical cables under the deck: Exhibit 6. Mr. Montgomerie was of the opinion that it needed to be waterproof. In my opinion, any enclosed space prima facie ought to be constructed so that it is waterproof; accepting that in some cases that obligation may not apply, it is appropriate that someone doing work which will affect whether or not the space is waterproof to assume that the space is to be waterproof in the absence of a clear indication to the contrary. That was not provided here. In my opinion, there is nothing in the point about the standard being expressed only in terms of roof and walls.