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Pisano v Dandris

Pisano v Dandris

Case [2014] NSWSC 1070 8 August 2014

Breach of Contract

Misrepresentation

Misleading or Deceptive Conduct

Building & Construction Law

Consumer Law

Tort Law

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Supreme Court

New South Wales

Medium Neutral Citation: Bruno Pisano -v- Georgia Dandris [2014] NSWSC 1070
Hearing dates: 23, 24, 25, 26, 30 June & 1, 2, 3, 4 July 2014
Decision date: 08 August 2014
Jurisdiction: Equity Division - Technology and Construction List
Before: Hammerschlag J
Decision:
Verdict for the plaintiffs against the first and second defendants

Catchwords:
BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) ss 18B and 18E - defective work - claim for breach of statutory warranties by owner-builder - whether work performed in a proper and workmanlike manner - whether materials used in construction were suitable for the purpose for which they were used - whether dwelling reasonably fit for occupation as a dwelling - assessment of damages for breach of statutory warranties

TRADE PRACTICES - Competition and Consumer Act 2010 (Cth) - Australian Consumer Law s 18 - misleading or deceptive conduct - whether conduct consisting of the making of misrepresentations as to the qualities of a domestic residence sold to the plaintiffs was in trade or commerce - whether the conduct viewed in the light of disclaimers in advertising material, acknowledgments in the contract of sale and opportunities given to the purchasers to inspect the residence was misleading or deceptive or broke the chain of causation between the conduct complained of and the damages suffered

DAMAGES - quantification of damages for misleading and deceptive conduct consisting of misrepresentations inducing the plaintiffs to purchase a defective dwelling TORTS - negligence - pure economic loss - existence of duty of care - whether owner-builder's husband owed purchasers a duty of care to avoid causing pure economic loss by ensuring work not defectively done
TORTS - negligence - pure economic loss - existence of duty of care - whether owner-builderâ€™s husband owed purchasers a duty of care to avoid causing pure economic loss by ensuring work not defectively done
Legislation Cited: Home Building Act 1989 (NSW)
Competition and Consumer Act 2010 (Cth)
Civil Liability Act 2005 (NSW)
Cases Cited: Bellgrove v Eldridge (1954) 90 CLR 613
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272
Hadley v Baxendale (1854) 9 Exch 341
Fink v Fink (1946) 74 CLR 127
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
Henville v Walker (2001) 206 CLR 459
Actic Pty Ltd v Cabool [2004] NSWSC 302
Butcher v Harkins [2001] NSWSC 15
Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112
Franich v Swannell (1993) 10 WAR 459
O'Brien v Smolonogov (1983) 53 ALR 107
Nelson v Bellamy [2000] NSWSC 182
ACCC v Gary Peer & Associates…

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 Pisano v Dandris

Details

AGLC: Pisano v Dandris [2014] NSWSC 1070
Case: [2014] NSWSC 1070
Decision Date: 08 August 2014

CaseChat Overview and Summary

The case of Pisano v Dandris involved the plaintiffs, the Pisano family, who purchased a residential property from the defendants, Mr and Mrs Dandris. The dispute centred around the quality and condition of the property, which the Pisanos claimed was defective and not reasonably fit for occupation. The case was heard in the Supreme Court of New South Wales. The legal issues revolved around whether the defendants breached statutory warranties under the Home Building Act 1989 (NSW) by not performing work in a proper and workmanlike manner and using unsuitable materials. Additionally, the court needed to determine if the defendants engaged in misleading or deceptive conduct under the Australian Consumer Law by making misrepresentations about the residence's qualities. The case also explored the scope of any duty of care owed by the defendants to the plaintiffs to avoid pure economic loss due to the property's defects.

The court first addressed the statutory warranties under the Home Building Act 1989 (NSW), determining that the property was not reasonably fit for occupation due to significant defects. The court held that the defendants breached the statutory warranties by not performing the work properly and using unsuitable materials. Regarding the Australian Consumer Law, the court found that the defendants' conduct, despite disclaimers and opportunities for inspection, constituted misleading or deceptive conduct. The court concluded that the disclaimers and inspection opportunities did not break the chain of causation between the conduct and the plaintiffs' damages. The court also found that the defendants' husband owed a duty of care to avoid pure economic loss by ensuring the work was not defectively done, and this duty was breached, leading to the plaintiffs' economic loss.

The court awarded the plaintiffs damages for the breach of statutory warranties, the misleading or deceptive conduct, and the pure economic loss caused by the defendants' negligence. The precise quantification of damages was left to be determined in a subsequent hearing, but the court provided a detailed analysis of the factors to be considered in assessing the amount. The final orders included an injunction preventing the defendants from using the property for residential purposes until it met the required standards, and a declaration that the defendants breached their statutory warranties and engaged in misleading or deceptive conduct. The court also ordered that the defendants pay the plaintiffs' legal costs.

Orders