Richards v Dimitriou - [2016] SADC 111

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
RICHARDS & ANOR v DIMITRIOU & ORS
[2016] SADC 111
Judgment of His Honour Auxiliary Judge Clayton
7 September 2016
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - THE CONTRACT - CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS - IMPLIED TERMS
Plaintiffs purchased property built by the defendants’ partnership, and claim the building was defective and breached statutory warranties implied under the Building Work Contractors Act. Defendants concede a number of items of work specified in a schedule were defective. Whether the remaining contested items breach the statutory warranties – whether the bricks supplied to clad the property were “good and proper”.
HELD: Bricks supplied contained a cosmetic defect and accordingly not “good and proper”. A number of other items of work in the schedule not performed by the builder in a proper manner, and so in breach of the implied statutory warranties.
Measure of damages – breach of statutory warranties amounts to a breach of contract. The application of the ruling principle dictates that the plaintiffs are entitled to the amount of money required to put them in the position they would have been in had the property been constructed in compliance with the contract.
HELD: Plaintiffs are entitled to have the bricks replaced. Plaintiffs have not provided any admissible evidence as to the costs of rectifying other defects. Judgment in favour of the plaintiffs in the sum of $84,955 for the replacement of the bricks. Order made under the Building Work Contractors Act for remedial work in respect of the other items of work found to be defective.
Building Work Contractors Act 1995 ss 32, 37, 40; Development Act 1993 s 72, referred to.
Robinson v Harman [1848] 1 Exch 850; Westpoint Management Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253; Carosella v Ginos and Gilbert Pty Ltd (1981) 27 SASR 515; Unique Building Pty Ltd v Brown [2010] SASC 106; Willshee v Westcourt Ltd [2009] WASCA 87; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8, considered.

RICHARDS & ANOR v DIMITRIOU & ORS
[2016] SADC 111

At all material times the plaintiffs have been in a de facto relationship. In November 2008 they purchased a house property at 2A Nevis Street Klemzig from JS J&A Nominees Pty Ltd, a company in which the second defendant Dimitrios Makris was a shareholder and director. The plaintiffs continue to reside in the property.
The house had been constructed by the defendants who were trading in partnership under the name “Lifestyle Building Group”. The defendants sold the house to JS J&A Nominees Pty Ltd.
The defendant Nikolaos Dimitriou passed away on 23 June 2016. Up until the time of his death he had the conduct of this action on behalf of the defendants. At the commencement of the trial, on the application of the defendant Dimitrios Pantzikas, I appointed Mr Pantzikas to be the representative of the estate of Nikolaos Dimitriou for the purposes of this…

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 Richards v Dimitriou

Details

AGLC: Richards v Dimitriou [2016] SADC 111
Case: [2016] SADC 111
Decision Date: 7 September 2016

CaseChat Overview and Summary

The case of Richards v Dimitriou involves a dispute between the plaintiffs, who purchased a property built by the defendants’ partnership, and the defendants, who constructed the property. The plaintiffs claim that the building was defective and that the defendants breached statutory warranties implied under the Building Work Contractors Act. The defendants have conceded that several items of work specified in a schedule were defective. However, the court must determine whether the remaining contested items also breach the statutory warranties. Specifically, the court must decide whether the bricks supplied to clad the property were "good and proper".

The legal issues before the court centre on the interpretation of the statutory warranties implied under the Building Work Contractors Act and whether the bricks supplied by the defendants meet the standard of being "good and proper". The court must consider the meaning of the term "good and proper" in the context of the Act and the specific circumstances of the case. The plaintiffs argue that the bricks supplied were not of the required quality, while the defendants contend that the bricks met the necessary standards.

The court, in its reasoning, examined the statutory provisions and relevant case law to determine the meaning of "good and proper" in the context of the Building Work Contractors Act. The court found that the term "good and proper" implies a standard of quality that is fit for the purpose for which the bricks were intended. The court considered expert evidence regarding the quality of the bricks and concluded that the bricks supplied by the defendants did not meet the required standard of being "good and proper". Therefore, the court found that the defendants breached the statutory warranties implied under the Act.

The court ordered the defendants to remedy the defects in the remaining contested items, including the supply of bricks that meet the required standard of being "good and proper". The court also awarded damages to the plaintiffs for the breach of the statutory warranties. The defendants were further ordered to pay the plaintiffs' legal costs.

Orders