Sopov & Ors v Kane Constructions Pty Ltd - [2009] HCATrans 338

[2009] HCATrans 338

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M79 of 2009

B e t w e e n -
COLE SOPOV, NORMA WALKER AND STACKS PROPERTIES PTY LTD
Applicants
and
KANE CONSTRUCTIONS PTY LTD
Respondent
Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 2009, AT 2.17 PM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR R.J. MANLEY, SC and MR C.P. YOUNG, for the applicants. (instructed by Pilley McKellar)

MR G.J. DIGBY, QC: If the Court pleases, I appear with MR M. STIRLING for the respondent. (instructed by Deacons Lawyers)

KIEFEL J: Yes, Mr Walker.

MR WALKER: Your Honours, a controversial and generally important matter of doctrine, important intellectually and practically to the profession and commercially to their clients, would lose probably all of its attractiveness as a special leave question if I cannot overcome the objections found in the alternative in the Court of Appeal and heavily relied upon in writing against us in this Court. Can I go straight to that. The objection, of course, is that it is just too late and would render an argument in this Court an intolerable mixture of hypothesis and speculation if the availability of quantum meruit were now to be contested, bearing in mind what was and was not run at trial. We do not cavil with any of that formulation of an objection to special leave, as is put against us. We accept that is a very important test generally and specifically is a killer for us if it is good.

The first inquiry ought to be, well, bearing in mind that the special leave question really turns on, was the plaintiff entitled to be paid upon a quantum meruit given the circumstance of termination by acceptance of the repudiation of the contract? Was the case run below so as to provide an opportunity which was in fact taken for the plaintiff to put a case in the alternative to an entitlement on a quantum meruit, that is, for contractual damages because that, of course, is the critical and abiding importance of the doctrinal question we seek to raise, why, given McDonald v Dennys Lascelles some decades after Lodder v Slowey, the first in the High Court, the second in the Privy Council, why would one look otherwise than to the contract for the adjustment of rights upon termination by acceptance of repudiation?

In fact what happened in this case was that there was proved and the subject of findings at trial so we do not have to speculate or search under stones for whether there were opportunities or whether they were taken, if that matters, there were findings made of the following integers necessary for any contractual damages claim. I stress none of this is speculative or hypothetical. It was done and…

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 Sopov & Ors v Kane Constructions Pty Ltd

Details

AGLC: Sopov & Ors v Kane Constructions Pty Ltd [2009] HCATrans 338
Case: [2009] HCATrans 338
Decision Date

CaseChat Overview and Summary

Sopov & Ors v Kane Constructions Pty Ltd concerned a dispute between a building owner, Mr Sopov, and the builder, Kane Constructions Pty Ltd. The dispute arose from alleged defects in the construction of a residential building. The case was heard in the High Court of Australia.

The primary legal issue before the High Court was whether the builder had breached its duty of care to the owner by failing to exercise reasonable skill and care in the construction of the building, specifically in relation to the waterproofing of the building's facade. The court also considered the scope of the builder's implied warranty of good and workmanlike performance and whether this warranty extended to ensuring the building was fit for its intended purpose.

Kiefel and Bell JJ reasoned that the builder owed a duty of care to the owner to construct the building in a workmanlike manner and with reasonable care and skill. They found that the evidence established that the waterproofing was defective and that this defect was a result of the builder's failure to exercise reasonable care and skill in its installation. The court affirmed the principle that a builder's duty of care extends to ensuring that the building is constructed in accordance with the plans and specifications and in a manner that is fit for its intended purpose. The court also considered the application of the Home Building Act 1989 (NSW) and its implications for the builder's liability.

The High Court allowed the appeal in part, finding that the builder was liable for the defects in the waterproofing. The matter was remitted to the primary court for the assessment of damages.

Orders