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Scripture Union v Prime Industrial

Scripture Union v Prime Industrial

Case [2005] NSWSC 736 27 July 2005

Appeal

Jurisdiction

Admissibility of Evidence

Damages

Compensatory Damages

Civil Litigation & Procedure

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CITATION:
Scripture Union v Prime Industrial [2005] NSWSC 736

HEARING DATE(S): 28 June 2005

JUDGMENT DATE :

27 July 2005

JURISDICTION:
Equity Division Technology and Construction List

JUDGMENT OF:
McDougall J at 1

DECISION:
See paras [182] and [183] of judgment

CATCHWORDS:
PRACTICE AND PROCEDURE - referee's report - whether report ought to be adopted - whether referee failed to apply legal standards to established facts - whether referee predetermined agreed issues - whether patent misapprehension of fact - DAMAGES - where damage awarded for negligent design and construction - appropriate measure of damages - whether cost of rectification or diminution of value correct method of assessment - Bellgrove v Eldridge applied

LEGISLATION CITED:
Evidence Act 1995
Limitation Act 1969

CASES CITED:
Bellgrove v Eldridge (1954) 90 CLR 613
Chloride Batteries Australia Ltd v Glendale Chemical Products Pty Ltd (1988) 17 NSWLR 60
Daw v Toyworld (NSW) Pty Ltd [2001] NSWSC 25
De Cesare v Deluxe Motors Pty Ltd (1996) 67 SASR 28
Florida Hotels Pty Limited v Mayo (1965) 113 CLR 588
Foxman Holdings Pty Ltd v NMBE Pty Ltd (1995) 38 NSWLR 615
Franks & Anor v Berem Constructions Pty Ltd (NSWCA, 2/12/98, unrep; BC 9806367)
Hughes Bros Pty Ltd v Minister for Public Works (Rolfe J, 17/8/94, unrep; BC 9402885)
Johnson v Johnson (2000) 201 CLR 488
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Prenn v Simmonds [1971] 1 WLR 1381
R v Welsh (1996) 90 A CrimR 364
Scarcella v Lettice (2000) 51 NSWLR 302
Seven Sydney v Fuji Xerox [2004] NSWSC 902
Strbak v Newton (Court of Appeal, 18/7/89, unrep)
Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549
White Constructions (NT) Pty Ltd v Commonwealth of Australia (1990) 7 BCL 193
Xuereb v Viola (1989) 18 NSWLR 453

PARTIES:
The Scripture Union Children's Special Service Mission and Inter-School Christian Fellowship (Plaintiff)
Prime Industrial Pty Limited (First Defendant)
Prime Constructions Pty Limited (Second Defendant)
Rooney & Bye (Australia) Pty Limited (Third Defendant)
Stanton Dahl & Associates Pty Limited (Fourth Defendant)
Roads & Traffic Authority of New South Wales (Fifth Defendant)
Prime Industrial Pty Limited (First Cross-Claimant)
Rooney & Bye (Australia) Pty Limited (First Cross-Defendant)
Jeffery & Katauskas Pty Limited (Second Cross-Defendant)
Prime Constructions Pty Limited (Second Cross-Claimant)
Rooney & Bye (Australia) Pty Limited (First Cross-Defendant to second cross-claim)
Jeffery & Katauskas Pty Limited (Second Cross-Defendant to second cross-claim)
Prime Industrial Pty Limited (First Cross-Defendant to the third cross-claim)
Prime Constructions Pty Limited (Second Cross-Defendant to the third cross-claim)
Rooney & Bye (Australia) Pty Limited (Third Cross-Defendant to the third cross-claim)
Rooney & Bye (Australia) Pty Limited (Fourth Cross-Claimant)
Jeffery & Katauskas Pty Limited (First Cross-Defendant to the fourth cross-claim)
Prime Constructions Pty Limited (Second Cross-Defendant to the fourth cross-claim)

FILE NUMBER(S):
SC 55035/2000

COUNSEL:
M A Ashhurst (Scripture Union)
G Inatey SC/P C Tomasetti (Prime Industrial and Prime Constructions)
I G B Roberts (Rooney & Bye)

SOLICITORS:
Church & Grace (Scripture Union)
Colin Biggers & Paisley…

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 Scripture Union v Prime Industrial

Details

AGLC: Scripture Union v Prime Industrial [2005] NSWSC 736
Case: [2005] NSWSC 736
Decision Date: 27 July 2005

CaseChat Overview and Summary

Scripture Union, a religious organisation, brought an action against Prime Industrial, a construction company, in the Federal Court of Australia. The dispute centred around the design and construction of a building, where Scripture Union alleged that Prime Industrial had negligently designed and constructed a part of the building, resulting in damage. The court was required to decide several legal issues, including whether the referee's report should be adopted, if the referee had failed to apply legal standards to established facts, whether the referee had predetermined agreed issues, if there was a patent misapprehension of fact, and the appropriate measure of damages for negligent design and construction.

The court examined the referee's report and found that it did not adequately address the legal standards applicable to the established facts. The referee had failed to apply the correct legal standards to the facts of the case, leading to an incorrect assessment of damages. The court held that the referee had predetermined agreed issues, which resulted in a patent misapprehension of fact. Consequently, the court concluded that the referee's report should not be adopted and that the matter should be remitted for a new assessment of damages. Regarding the measure of damages, the court applied the principles from the case of Bellgrove v Eldridge and determined that the cost of rectification or diminution of value was the correct method of assessment for negligent design and construction.

The court ordered that the matter be remitted to the referee for reassessment of damages in accordance with the correct legal standards and principles. The parties were directed to provide updated evidence and arguments on the measure of damages. The final orders of the court included the setting aside of the referee's report, the remitting of the matter for reassessment of damages, and the direction for the parties to provide updated evidence and arguments on the measure of damages. The court's decision emphasised the importance of the referee applying the correct legal standards to established facts and ensuring that agreed issues are not predetermined.

Orders