Roluke Pty Ltd v Lamaro Consultants Pty Ltd - [2008] NSWCA 323

New South Wales

Court of Appeal

CITATION: Roluke Pty Ltd & Anor v Lamaro Consultants Pty Ltd & Anor [2008] NSWCA 323

HEARING DATE(S): 23 September 2008

JUDGMENT DATE:
27 November 2008

JUDGMENT OF: Basten JA at 1; Campbell JA at 2; Sackville AJA at 3

DECISION: 1. Appeal allowed in part.
2. The parties file agreed short minutes of order within 14 days giving effect to the judgment herein and dealing with the costs of the appeal and of the trial.
3. In the absence of agreement, the appellants serve and file short minutes of order within 14 days (including orders relating to the costs of the appeal and the costs of the trial), together with a brief outline of submissions supporting the proposed orders.
4. If the appellants serve and file draft short minutes of order in accordance with Order 3, the respondents, within a further seven days, file and serve short minutes of order (including orders relating to the costs of the appeal and the costs of the trial), together with a brief outline of submissions supporting the proposed orders.
5. If the respondents wish to proceed with the summons for leave to appeal against the costs orders made by the primary Judge, the outline of submissions referred to in Order 4 should notify the Court of that intention.

CATCHWORDS: DAMAGES – negligent design of waterproof concrete slab by an engineer – measure of damages for breach of contract – whether terms of contract required a waterproof slab that would last for the life of the building or one that included a membrane requiring periodic repairs – whether primary Judge’s findings of fact on life expectancy of membrane and repairs to slabs were correct – whether owners of building entitled to damages for diminution in value of building where repairs had been satisfactorily completed

LEGISLATION CITED: Evidence Act 1995 (NSW)

CATEGORY: Principal judgment

CASES CITED: Auburn Municipal Council v ARC Engineering Pty Ltd [1973] 1 NSWLR 513
Bellgrove v Eldridge [1954] HCA 36; 90 CLR 613
Beregold Pty Ltd v Mitsopoulos (Supreme Court of New South Wales, 10 November 1992, unreported)
Bevan Investments Ltd v Blackhall and Struthers (No 2) [1978] 2 NZLR 97
Brown Falconer Group Pty Ltd v South Parklands Hockey & Tennis Centre Inc [2005] SASC 75
Costa v The Public Trustee of NSW [2008] NSWCA 223
Fox v Percy [2003] HCA 22; 214 CLR 118
Haines v Bendall [1991] HCA 15; 172 CLR 60
Skinner v Frappell [2008] NSWCA 296
State Rail Authority of New South Wales v Brown [2006] NSWCA 220

TEXTS CITED: A. Hudson and M. Lawrence, The Law of Building and Engineering Contracts : and of the Duties and Liabilities of Architects, Engineers and Surveyors, 7th ed, (1946) Sweet and Maxwell at 343

PARTIES: Roluke Pty Ltd (First Appellant)
Scotts Motors Artamon Pty Limited (Second Appellant)
Lamaro Consultants Pty Ltd (First Respondent)
Anthony Vincent Lamaro (Second Respondent)

FILE NUMBER(S): CA 40492/2007

COUNSEL:
Mr J Glissan QC (Appellants)

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.

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Details

Case: [2008] NSWCA 323
Decision Date: 27 November 2008

CaseChat Overview and Summary

Roluke Pty Ltd (the owner) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning damages awarded against Lamaro Consultants Pty Ltd (the engineer) for negligent design of a waterproof concrete slab. The dispute centred on the measure of damages for breach of contract, specifically whether the contract required a slab that would remain waterproof for the life of the building or one that incorporated a membrane necessitating periodic repairs. The owner also challenged the primary judge's findings of fact regarding the expected lifespan of the membrane and the necessary repairs to the slabs, and whether the owner was entitled to damages for the diminution in the building's value despite the satisfactory completion of repairs.

The Court of Appeal was required to determine the correct measure of damages for the engineer's breach of contract. This involved interpreting the contractual obligations regarding the waterproof slab, specifically its expected durability and maintenance requirements. Furthermore, the court had to assess the correctness of the primary judge's factual findings concerning the life expectancy of the membrane and the extent of repairs required. A key legal issue was whether the owner could claim damages for the diminution in the building's value even after the defective elements had been repaired to a satisfactory standard.

The Court of Appeal allowed the appeal in part. While the precise reasoning is not detailed in the provided text, the outcome indicates that the court disagreed with the primary judge on some aspects of the damages assessment. The court directed the parties to file agreed short minutes of order within 14 days to give effect to its judgment, including provisions for the costs of the appeal and the trial. If agreement could not be reached, the appellants were to serve and file their proposed orders and submissions, with the respondents having a further opportunity to respond. The court also noted the possibility of the respondents seeking leave to appeal the primary judge's costs orders.

Orders

Orders of the court

1. Appeal allowed in part. 2. The parties file agreed short minutes of order within 14 days giving effect to the judgment herein and dealing with the costs of the appeal and of the trial. 3. In the absence of agreement, the appellants serve and file short minutes of order within 14 days (including orders relating to the costs of the appeal and the costs of the trial), together with a brief outline of submissions supporting the proposed orders. 4. If the appellants serve and file draft short minutes of order in accordance with Order 3, the respondents, within a further seven days, file and serve short minutes of order (including orders relating to the costs of the appeal and the costs of the trial), together with a brief outline of submissions supporting the proposed orders. 5. If the respondents wish to proceed with the summons for leave to appeal against the costs orders made by the primary Judge, the outline of submissions referred to in Order 4 should notify the Court of that intention.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Roluke Pty Ltd & Anor v Lamaro Consultants Pty Ltd & Anor [2008] NSWCA 323
HEARING DATE(S):	23 September 2008
JUDGMENT DATE:	27 November 2008
JUDGMENT OF:	Basten JA at 1; Campbell JA at 2; Sackville AJA at 3
DECISION:	1. Appeal allowed in part. 2. The parties file agreed short minutes of order within 14 days giving effect to the judgment herein and dealing with the costs of the appeal and of the trial. 3. In the absence of agreement, the appellants serve and file short minutes of order within 14 days (including orders relating to the costs of the appeal and the costs of the trial), together with a brief outline of submissions supporting the proposed orders. 4. If the appellants serve and file draft short minutes of order in accordance with Order 3, the respondents, within a further seven days, file and serve short minutes of order (including orders relating to the costs of the appeal and the costs of the trial), together with a brief outline of submissions supporting the proposed orders. 5. If the respondents wish to proceed with the summons for leave to appeal against the costs orders made by the primary Judge, the outline of submissions referred to in Order 4 should notify the Court of that intention.
CATCHWORDS:	DAMAGES – negligent design of waterproof concrete slab by an engineer – measure of damages for breach of contract – whether terms of contract required a waterproof slab that would last for the life of the building or one that included a membrane requiring periodic repairs – whether primary Judge’s findings of fact on life expectancy of membrane and repairs to slabs were correct – whether owners of building entitled to damages for diminution in value of building where repairs had been satisfactorily completed
LEGISLATION CITED:	Evidence Act 1995 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Auburn Municipal Council v ARC Engineering Pty Ltd [1973] 1 NSWLR 513 Bellgrove v Eldridge [1954] HCA 36; 90 CLR 613 Beregold Pty Ltd v Mitsopoulos (Supreme Court of New South Wales, 10 November 1992, unreported) Bevan Investments Ltd v Blackhall and Struthers (No 2) [1978] 2 NZLR 97 Brown Falconer Group Pty Ltd v South Parklands Hockey & Tennis Centre Inc [2005] SASC 75 Costa v The Public Trustee of NSW [2008] NSWCA 223 Fox v Percy [2003] HCA 22; 214 CLR 118 Haines v Bendall [1991] HCA 15; 172 CLR 60 Skinner v Frappell [2008] NSWCA 296 State Rail Authority of New South Wales v Brown [2006] NSWCA 220
TEXTS CITED:	A. Hudson and M. Lawrence, The Law of Building and Engineering Contracts : and of the Duties and Liabilities of Architects, Engineers and Surveyors, 7th ed, (1946) Sweet and Maxwell at 343
PARTIES:	Roluke Pty Ltd (First Appellant) Scotts Motors Artamon Pty Limited (Second Appellant) Lamaro Consultants Pty Ltd (First Respondent) Anthony Vincent Lamaro (Second Respondent)
FILE NUMBER(S):	CA 40492/2007
COUNSEL:	Mr J Glissan QC (Appellants)