Sunbake Pty Ltd v Big River Developments - [2005] SADC 124

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SUNBAKE PTY LTD v BIG RIVER DEVELOPMENTS
Judgment of His Honour Judge Rice
9 September 2005
CONTRACTS
Contract entered into whereby the defendant was to build a bakery for the plaintiff - defendant undertook project after a separate building company, which already had plans and specifications prepared, went into administration - defendant entered into a contract to build the bakery using those plans and specifications - before contract signed and before building work commenced, plaintiff emphasized to the defendant that the concrete floor of the bakery needed to be able to withstand the abrasive effect of steel-wheeled trolleys - plans and specifications were inadequate for that purpose and the concrete surface deteriorated substantially - claim for breach of implied warranties as to workmanship and materials and negligence.
Held, breach of implied warranties proved - defendant liable to plaintiff for cost of rectification work - damages reduced because plaintiff acted unreasonably in not having the work done at an earlier time thereby increasing deterioration and loss.
Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1981-1982) 149 CLR 337; Royal Botanic Gardens & Domain Trust v South Sydney City Council (2002) 76 ALJR 436; G H Myers and Co v Brent Cross Service Co [1934] 1 KB 46; McKone v Johnson [1966] 2 NSWLR 471, considered.

SUNBAKE PTY LTD v BIG RIVER DEVELOPMENTS
[2005] SADC 124
Introduction

This is an action for breach of contract and negligence arising from the construction of a bakery in Berri in late 1996, early 1997. In essence, the plaintiff, Sunbake Pty Ltd (“Sunbake”) claims that the defendant, Big River Developments (“Big River Developments”) breached the contract by failing to exercise a proper standard of care in the construction of the bakery. It is alleged that the breach has caused certain defects, which the defendant failed to make good, and thereby the plaintiff has suffered loss and damage. The plaintiff also alleges that the defendant was negligent in the construction of the bakery in that it failed to exercise a standard of care that was reasonably expected of it by the plaintiff. Further, it is said the defendant was negligent in that it failed to carry out its duties with due skill and care. Sunbake claims the cost of making good those defects, interest and costs.
Big River Developments was a business operated at relevant times by Mr Murray Knowling (“Mr Knowling”). At an earlier time he had been a supervisor with a building company located in Berri.
The claimed defects are of three types. The first and most significant defect relates to the construction and strength of concrete flooring of the bakery that has now significantly worn down, cracked and pitted such that the floors are uneven and represent a health hazard. The rectification that is sought would involve taking the concrete back to a clean, stable surface and the application of a new, epoxy resin surface. Such a surface would be extremely hard…

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 Sunbake Pty Ltd v Big River Developments

Details

AGLC: Sunbake Pty Ltd v Big River Developments [2005] SADC 124
Case: [2005] SADC 124
Decision Date: 9 September 2005

CaseChat Overview and Summary

Sunbake Pty Ltd brought an action against Big River Developments, alleging breach of contract and negligence in the construction of a bakery in Berri in late 1996, early 1997. Sunbake claimed that Big River Developments breached the contract by failing to exercise a proper standard of care in the construction of the bakery and that the breaches caused defects, which Big River Developments failed to make good, thereby causing loss and damage to Sunbake. Sunbake also alleged that Big River Developments was negligent in the construction of the bakery in that it failed to exercise a standard of care that was reasonably expected of it by Sunbake. Big River Developments denied the allegations and argued that it constructed the bakery in accordance with the engineers' plans and specifications. The court found that there was a breach of the implied warranties in the contract and that Big River Developments was liable to Sunbake for the cost of rectification work. However, the damages were reduced because Sunbake acted unreasonably in not having the work done at an earlier time thereby increasing deterioration and loss. The court ordered Big River Developments to pay Sunbake $62,550, plus interest.

Orders