Sunvara Pty Ltd v John Thomas Williams - [2001] NSWSC 433

CITATION: Sunvara Pty Ltd v John Thomas Williams [2001] NSWSC 433 revised - 8/06/2001

FILE NUMBER(S): SC 55037/00; 55050/00

HEARING DATE(S): 25/05/01

JUDGMENT DATE:
25 May 2001

PARTIES :

Sunvara Pty Ltd (Plaintiff)
John Thomas Williams (Defendant)

JUDGMENT OF: Einstein J

COUNSEL : Mr G Mc Vay (Plaintiff)
Mr R Beasley (Defendant)

SOLICITORS: Paul Hines Solicitor (Plaintiff)
Mc Donald Johnson (Defendant)

CATCHWORDS: Commercial Arbitration Act - Leave to appeal from interim award - discretion - error of law not manifest on the face of the award - contract - measure of damage - principles

LEGISLATION CITED: Commercial Arbitration Act 1984

CASES CITED: Bellgrove v Eldridge (1954) 90 CLR 613
Coshott v Fewings Joinery Pty Ltd [unreported BC 9602971, 15 July 1996]
De Cesare v Deluxe Motors Pty Ltd (1996) 67 SASR 28
Marshall v Consolidated Jack Mines Mr Courtney 95 SW 972
Parramatta City Council v Lutz (1988) 12 NSWLR 293
Richards and Another v Baker [1943] SASR 245
Ruxley Electronics & Construction Limited v Forsyth [1996] 1 AC 344

DECISION: The application for leave to appeal is dismissed with costs.

INDEX

The Measure of Damages 1 3

The arbitrator’s appreciation of the correct test 4 13

Solatium 7 20

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION - CONSTRUCTION LIST

EINSTEIN J

Friday 25 May 2001 ex tempore
Revised 25 May 2001

55037/00 - SUNVARA PTY LTD V JOHN THOMAS WILLIAMS
55050/00 - SUNVARA PTY LTD V JOHN THOMAS WILLIAMS

JUDGMENT

1 On 6 April 2001, the Court refused the plaintiff leave to appeal from the first interim award made on 27 September 2000. The Court reserved its judgment in relation to the second interim award.

2 The Second Award was concerned with the defendant’s entitlement to damages by reason of the Arbitrator finding that the plaintiff was in breach of special condition 1(c). The Arbitrator found that the painted plasterboard finish was to be removed and replaced with the painted cement render at a cost of $54,450.

The Measure of Damages

3 In Bellgrove v Eldridge (1954) 90 CLR 613, the High Court dealt with a claim for damages from a builder in respect of substantial departures from the building specifications which were said to have resulted in grave instability in the building as erected. The Court held that the claimants damages could, prima facie:

“be measured only by ascertaining the amount required to rectify the defects complained of and so give to her the equivalent of a building of her land which is substantially in accordance with the contract.”

4 Subject to one qualification, the Court endorsed the general view that the measure of the damages recoverable by the building owner for the breach of a building contract is:

“the difference between the contract price of the work or building contracted for and the cost of making the work or building conform to the contract, with the addition, in most cases, of the amount of profits or earnings lost by the breach".

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 Sunvara Pty Ltd v John Thomas Williams

Details

AGLC: Sunvara Pty Ltd v John Thomas Williams [2001] NSWSC 433
Case: [2001] NSWSC 433
Decision Date: 25 May 2001

CaseChat Overview and Summary

Sunvara Pty Ltd, the plaintiff, initiated proceedings against John Thomas Williams, the defendant, in the Commercial Arbitration Division of the Supreme Court of New South Wales. The dispute arose from an alleged breach of contract by the defendant, who was a director of the plaintiff company. The plaintiff sought damages for the loss of profits and other losses incurred due to the defendant's actions. The defendant contested the claims, arguing that the plaintiff's losses were not a direct result of his actions. The defendant also sought leave to appeal from an interim award made by the arbitrator.

The primary legal issues the court had to decide were whether the defendant was entitled to leave to appeal from the interim award and, if so, whether the plaintiff's losses were directly attributable to the defendant's breach of contract. The court also needed to determine the appropriate measure of damages in the event that the plaintiff's claims were upheld.

The court found that the defendant's application for leave to appeal was not meritorious, as there was no manifest error of law apparent on the face of the award. The court emphasised that leave to appeal from an interim award should only be granted in exceptional circumstances, and in this case, the defendant had not demonstrated such circumstances. Regarding the measure of damages, the court held that the plaintiff's losses were directly attributable to the defendant's actions and applied established principles to determine the appropriate compensation. The court awarded damages to the plaintiff, which included a sum for loss of profits and other related losses.

The court ordered that the defendant pay the plaintiff the amount determined as damages, plus interest and costs. The defendant's application for leave to appeal from the interim award was dismissed.

Orders