Scott Carver Pty Ltd v SAS Trustee Corporation

Scott Carver Pty Ltd (Carver) and Ace Building Pty Ltd (Ace) appealed to the New South Wales Court of Appeal against a decision of the Supreme Court of New South Wales concerning damages for defective building work. The SAS Trustee Corporation (SAS) was the plaintiff and the respondent in the appeals, with Nubra Pty Ltd and Rightway Pty Ltd also involved as defendants. The dispute centred on the recovery of damages for alleged defects in a building constructed by Carver and Ace, and the allocation of costs between the parties.

The Court of Appeal was required to determine several legal issues. These included whether the right to damages for defective building work was affected by the subsequent sale of the property, particularly when the primary judge found that the value of the property was not diminished by the defects. Furthermore, the court had to consider the application of Supreme Court Rules Part 52A rule 33(2)(e) in relation to the recovery of costs from one defendant when the amount recovered was less than $75,000, and whether it was reasonable to include that defendant in proceedings involving other parties.

The Court of Appeal dismissed the appeals by Carver and SAS, and the cross-appeals by SAS and Nubra, with costs. The appeal by Ace was allowed in part, with the Master's order that Ace pay 7.5% of SAS's costs being set aside and replaced with no order as to costs between SAS and Ace. There was also no order as to the costs of Ace's appeal. The appeal by Rightway was dismissed with costs. The court's reasoning, particularly regarding the impact of the property sale on the right to damages and the application of the costs rule, led to these outcomes.