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SAS v Scott Carver

SAS v Scott Carver

Case [2003] NSWSC 1097 28 November 2003

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CITATION: SAS v Scott Carver [2003] NSWSC 1097 revised - 4/12/2003

HEARING DATE(S): 29, 30 September 2003

JUDGMENT DATE:
28 November 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Master Macready at 1

DECISION: Paragraph 87

CATCHWORDS: Building Contracts. Measure of damages for breach where building sold before rectification carried out. Whether there was substantial performance. Defendants liable notwithstanding that defects were not intended to be rectified. - Contracts. Construction of clauses restricting liability for claims. - Damages. Causation, forseeability of negligence by others in rectifying faulty workmanwork.

CASES CITED: Super Pty Limited v SJP Formwork Pty Limited (1992) 29 NSWLR 549
Homebush Abattoir Corporation v Bermria Pty Limited (1991) 22 NSWLR 605;
Chloride Batteries of Australia Pty Limited v Glendale Chemical Products Pty Limited (1988) 17 NSWLR 60 Xureb v Viola (1989) 18 NSWLR 453
WC Gray (Constructions) Pty Limited v Hogan (unreported) [2000] NSWSC 26
Insurance Contracts Act 1984 (Cth): see FAI General Insurance Co Ltd v Australian Hospital Care Pty Ltd (2001) 204 CLR 641
Thomas National Transport (Melbourne) Pty Limited v May and Baker (Australia) Pty Limited (1966) 115 CLR 376
Halford v Price (1960) 105 CLR 23, Herron v McMahon (1984) 2 ANZ Ins Cas 60-568
Tolcher v Loiterton & Ors (2002) NSW SC 373
Modern Engineering (Bristol) Ltd v Gilbert-Ash (Northern) Ltd [1974] AC 689 at pp717-718
Pearson-Limited v John P Baxter and Mrs A S Baxter (1999) BLR 101
Williams v R (1978) 140 CLR 591
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Latham v Johnson [1913] 1 KB 398
Griffin v State of New South Wales [2002] NSWSC 1273
Norton Australia Pty Limited v Streets Ice Cream Pty Ltd (1916) 120 CLR 635
Dorset Yacht Company v The Home Office (1970) AC 1004
Bellgrove v Eldridge (1954) 90 CLR 613
Director of War Service Homes v Harris (1968) Qd R 275
De Cesare v Deluxe Motors Pty Ltd (1996) 67 SASR 28
Ruxley Electronics & Construction Limited v Forsythe [1996] AC 344
Commonwealth v Aman Aviation Pty Limited (1991) 174 CLR 64
Evans v Balog (1976) 1 NSWLR 36 at 39
Parramatta City Council v Lutz (1988) 12 NSW LR 293

PARTIES :
SAS Trustee Corporation v Scott Carver Pty Limited & Ors

FILE NUMBER(S): SC 55052 of 1998

COUNSEL: F Corsaro SC & RM McKeand for plaintiff
SR Donaldson SC for 1st defendant
SA Kerr & GB Beveridge for 4th defendant
M.R. Gracie for 5th defendant

SOLICITORS: Clayton Utz for plaintiff
Ebsworth & Ebsworth for 1st defendant
Henry Davis York for 4th defendant
Whitfields Solicitors for 5th defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

Master Macready

Friday 28 November 2003

55052/1998 SAS Trustee Corporation (formerly State Authorities Superannuation Board) v Scott Carver Pty Ltd & Ors

JUDGMENT

1 Master: This is the hearing of a series of notices of motions, concerning the adoption in whole or in part of a report of a referee in this matter.…

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 SAS v Scott Carver

Details

AGLC: SAS v Scott Carver [2003] NSWSC 1097
Case: [2003] NSWSC 1097
Decision Date: 28 November 2003

CaseChat Overview and Summary

The case of SAS v Scott Carver involved a dispute between a building company and a homeowner regarding the quality of a building contract. The homeowner, SAS, alleged that the building company, Scott Carver, had breached the terms of the contract by delivering substandard workmanship. The case was heard in the Supreme Court of New South Wales. The primary legal issues the court had to resolve were whether there was substantial performance by the builder, and if the builder could be held liable despite the homeowner not intending to rectify the defects. Another issue was the interpretation of clauses in the contract that limited the builder's liability for claims.

The court found that there was substantial performance by the builder, as the building could still be used for its intended purpose despite the defects. However, the court held that the builder could still be held liable for the breach of contract, even though the homeowner did not intend to rectify the defects. The court also considered the clauses in the contract that limited the builder's liability for claims, and found that they did not apply in this case as the defects were the result of the builder's own negligence. The court held that the homeowner was entitled to damages for the breach of contract, and that the builder was liable for the full amount of the damages.

The court further held that the builder was liable for any foreseeable negligence by others in rectifying the faulty workmanship, even if the builder had no control over the rectification process. The court found that the builder's negligence had caused the homeowner to incur additional costs in rectifying the defects, and that these costs were recoverable as damages. The court awarded the homeowner damages in the amount of $200,000, which represented the cost of rectifying the defects and any additional costs incurred as a result of the builder's negligence.

Orders