New South Wales
Court of Appeal
CITATION: Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd & Ors [2006] NSWCA 356 HEARING DATE(S): 30 & 31 October, 2 & 3 November 2006
JUDGMENT DATE:
14 December 2006JUDGMENT OF: Handley JA at 1; Giles JA at 2; Bryson JA at 241 DECISION: Appeal dismissed with costs. CATCHWORDS: Construction contract - for construction of pavement at container depot - pavement failed - whether because of contractor's defective workmanship - whether could recover cost of rectification under cover for "costs of loss or damage caused directly by" the defect in workmanship in the pavement - whether designing and to some extent supervising engineer in breach of contract with owner of depot - or in breach of a duty of care owed to owner or to contractor - whether geotechnical consultant engaged by engineer in breach of duty of care owed to owner or to contractor. CASES CITED: Bevan v Blackhall & Struthers (No 2) Pty Ltd (1973) 2 NZLR 45;
Brickhill v Cooke (1984) 3 NSWLR 396;
Bryan v Maloney (1995) 182 CLR 609;
Donoghue v Stevenson (1932) AC 562;
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540;
Heydon v NRMA Ltd (2000) 51 NSWLR 1;
John Holland Construction & Engineering Pty Ltd v Majorca Projects Pty Ltd (1997) 13 BCL 235;
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254;
Olsson v Dyson (1969) 120 CLR 365;
Pacific Associates Inc v Baxter (1990) 1 QB 993;
P & E Phontos Pty Ltd v McConnell Smith Johnson Pty Ltd (1993) 9 BCL 259;
Perre v Apand Pty Ltd (1998) 198 CLR 180;
Rogers v Whittaker (1992) 175 CLR 479;
R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1995) 11 BCL 74;
Voli v Inglewood Shire Council (1963) 110 CLR 74;
Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642;
Williams v Minister Aboriginal Land Rights Act 1983 (2000) Aust Torts Rep 81-578; [2000] NSWCA 255;
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2003) 216 CLR 515.PARTIES: Rickard Constructions Pty Ltd - Appellant
Rickard Hails Moretti Pty Ltd - First Respondent
Jeffrey & Katauskas Pty Ltd - Second Respondent
Allianz Australia Insurance Ltd - Third RespondentFILE NUMBER(S): CA 40070/05 COUNSEL: F Corsaro SC & R Steele - Appellant
S R Donaldson SC & P Braham - First Respondent
M Dempsey SC & J A Steele - Second Respondent
A S Martin SC & A J McInerney - Third RespondentSOLICITORS: Maurice Blackburn Cashman - Appellant
Moray & Agnew - First Respondent
Colin Biggers & Paisley - Second Respondent
Moroney Betts - Third RespondentLOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 55027/00 LOWER COURT JUDICIAL OFFICER: McDougall J LOWER COURT DATE OF DECISION: 27 December 2004 LOWER COURT MEDIUM NEUTRAL CITATION: Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2004] NSWSC…
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Details
- Case
- [2006] NSWCA 356
- Decision Date
CaseChat Overview and Summary
The dispute in *Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd* concerned a construction contract for a pavement at a container depot, which subsequently failed. Rickard Constructions Pty Ltd (the contractor) sought to recover the cost of rectification under a contractual indemnity clause for "costs of loss or damage caused directly by" defects in the pavement's workmanship. The case also involved allegations of breach of contract and duty of care against the designing and supervising engineer, Rickard Hails Moretti Pty Ltd, and the geotechnical consultant engaged by the engineer. The matter was heard on appeal.
The primary legal issues before the court were whether the pavement failure was attributable to the contractor's defective workmanship, and if so, whether the contractor could recover the rectification costs under the indemnity clause. Additionally, the court had to determine whether the engineer had breached its contract with the owner of the depot, or a duty of care owed to the owner or the contractor, and whether the geotechnical consultant had breached a duty of care owed to the owner or the contractor.
The court's reasoning focused on the interpretation of the indemnity clause and the evidence regarding the cause of the pavement failure. It was held that the contractor was not entitled to recover the rectification costs under the indemnity clause, as the loss was not caused directly by defective workmanship in the manner contemplated by the clause. The court found that the failure was due to design issues and the contractor's work, while not perfect, did not directly cause the extent of the loss claimed. Furthermore, the court considered the engineer's and consultant's liabilities, finding no basis for claims against them in breach of contract or duty of care that would alter the outcome for the contractor.
The appeal was dismissed, and the contractor was ordered to pay the costs of the appeal.
The primary legal issues before the court were whether the pavement failure was attributable to the contractor's defective workmanship, and if so, whether the contractor could recover the rectification costs under the indemnity clause. Additionally, the court had to determine whether the engineer had breached its contract with the owner of the depot, or a duty of care owed to the owner or the contractor, and whether the geotechnical consultant had breached a duty of care owed to the owner or the contractor.
The court's reasoning focused on the interpretation of the indemnity clause and the evidence regarding the cause of the pavement failure. It was held that the contractor was not entitled to recover the rectification costs under the indemnity clause, as the loss was not caused directly by defective workmanship in the manner contemplated by the clause. The court found that the failure was due to design issues and the contractor's work, while not perfect, did not directly cause the extent of the loss claimed. Furthermore, the court considered the engineer's and consultant's liabilities, finding no basis for claims against them in breach of contract or duty of care that would alter the outcome for the contractor.
The appeal was dismissed, and the contractor was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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