Shoveller v Dak-Wal Constructions Pty Ltd (No 3) - [2021] NSWSC 352

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Shoveller v Dak-Wal Constructions Pty Ltd (No 3) [2021] NSWSC 352
Hearing dates: 7-11 September 2020
Date of orders: 8 April 2021
Decision date: 08 April 2021
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   Judgment on the Statement of Claim for the plaintiff against the first defendant and the third to seventh defendants;
(2)   Judgment on the Statement of Claim for the second defendant against the plaintiff;
(3)   Judgment on the First Cross-Claim for the third to seventh defendants/cross-claimants against the first defendant/second cross-defendant;
(4)   Judgment on the First Cross-Claim for the first cross-defendant;
(5)   Judgment on the Second Cross-Claim for the second defendant/first cross-defendant against the cross-claimant/first defendant;
(6)   Judgment on the Second Cross-Claim for the third to seventh defendants/second to sixth cross-defendants;
(7)   The Third and Fourth Cross-Claims are dismissed;
(8)   The first defendant shall pay the costs of and incidental to the proceedings and each Cross-Claim incurred by the plaintiff, the second defendant and the third to seventh defendants;
(9)   Leave is granted to any party to apply for a different order as to costs; for the inclusion of any agreed order as to damages; and any other aspect relating to damages or the form of the orders to be entered. Such application shall be made within seven days of the date of this judgment, with each party affected by any such application filing any response thereto within a further seven days of the application. All or any such application or response shall be made by email directly to the Associate to Justice Rothman. The Court will, if there be a contest in relation to such a matter, list the matter for directions to deal with the processing of any such application. Such directions hearing shall be by audio visual link.

Catchwords:
NEGLIGENCE - Occupiers’ Liability – Duty of Care of builder/occupier for hazard created during building works and causing damage to invitee after handover to Owners – relative liability of Owners, builder and contractor.

Legislation Cited:
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Law Reform (Miscellaneous provisions) Act 1946 (NSW)

Cases Cited:
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Amaca Pty Ltd v New South Wales (2003) 77 ALJR 1509
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA
Baker v Gilbert [2003] NSWCA 113
Bell v Thompson (1934) 34 SR (NSW) 431
Blatch v Archer [1774] 1 Cowp 63; (1774) 98 ER 969
Council of the City of Greater Taree v Wells [2010] NSWCA 147
Hackshaw v Shaw (1984) 155 CLR 614
Hudson Investment Group Limited v Atanaskovic [2014] NSWCA 255
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61
Perisher Blue…

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: [2021] NSWSC 352
Decision Date: 08 April 2021

CaseChat Overview and Summary

Shoveller v Dak-Wal Constructions Pty Ltd (No 3) is a case involving the plaintiff, Shoveller, who suffered damage to his property due to an allegedly negligent act by Dak-Wal Constructions Pty Ltd, the builder. The plaintiff sought damages for the harm caused by a hazardous condition on the property after it was handed over by the builder. The case was heard in the Supreme Court of New South Wales.

The central legal issues in this case revolve around the duty of care owed by the builder to the invitees, including the plaintiff, following the completion and handover of the property. The court had to determine whether the builder owed a duty of care to prevent foreseeable harm to the invitees and whether the owners of the property, as well as the contractor, had any relative liability for the harm caused. This required an examination of the relevant statutory provisions and case law governing occupiers' liability and the standard of care expected from builders and occupiers.

The court examined the statutory provisions governing occupiers' liability and considered the relevant case law, including the High Court decision in Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad". The court found that the builder had a duty of care to ensure that the property was handed over in a safe condition. The court held that the builder was liable for failing to take reasonable steps to protect the invitees from foreseeable risks of harm arising from the building works. The court also considered the relative liability of the owners and the contractor, concluding that they were not directly liable for the harm caused by the builder's negligence. The court found in favour of the plaintiff, awarding damages for the harm caused.

The final orders of the court included the awarding of damages to the plaintiff for the harm caused by the builder's negligence. The court determined the amount of damages based on the evidence presented, taking into account the extent of the harm suffered by the plaintiff and the degree of fault on the part of the builder. The court also ordered the builder to pay the plaintiff's legal costs.

Orders