Sweeney v Coffey Pty Ltd

[1999] NSWCA 38

CITATION:	SWEENEY & ANOR v COFFEY PTY LTD & ORS [1999] NSWCA 38
FILE NUMBER(S):	CA 40750/96
HEARING DATE(S):	16 February 1999
JUDGMENT DATE:	16 February 1999
PARTIES :	GERALDINE SWEENEY & ANOR R & D COFFEY PTY LIMITED & ORS
JUDGMENT OF:	Mason P; Powell JA; Fitzgerald AJA

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CL 16433/91
LOWER COURT JUDICIAL OFFICER:	Hidden J

COUNSEL:	A J Meagher SC/P J Dowdy (Appellant) P R Callaghan SC/D M Lowenstein (1st Respondent) F C Corsaro (2nd Respondent) G M Watson (3rd Respondent)
SOLICITORS:	James A Moustacas & Co (Appellant) Hickson Wisewolds (1st Respondent) Tress Cocks & Maddox (2nd Respondent) Colin Biggers & Paisley (3rd Respondent)
CATCHWORDS:	Contracts ; torts; negligence ; breach of duty to take reasonable care; Supreme Court Rules Part 72; referee’s report; damages for loss of use of house
DECISION:	Appeal dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40750/96
CL 16433/91

MASON P
POWELL JA
FITZGERALD AJA

16 February 1999

GERALDINE SWEENEY & ANOR v
R & D COFFEY PTY LIMITED & ORS

JUDGMENT

1 MASON P: A substantial house in Wentworth Avenue, Point Piper was under repair in late 1987. It was the home of the appellants and their children, the owner being the first appellant Mrs Sweeney.
2 The first respondent (“the contractor”) had contracted with Mrs Sweeney to perform repairs to the flat roof. The contractor was a specialist roofing contractor that had been retained on the recommendation of Mr Heyko-Porebski (“the architect”) who is the first of the second respondents.
3 In the week of 26 October 1987 the contractor’s employees commenced work. They removed the weatherproof membrane thereby exposing the totality of the roof surface. This disclosed that the topping to the slab was not structural. There was lightweight coke-like cement. The contractor submitted an amended quotation for the removal of the lightweight concrete topping as a preliminary to a different type of repair work than had originally been contemplated.
4 On 30 October a hole of 3-4 inches diameter was cut in the roof for the purpose of confirming its nature and structure. It was ascertained that the roof did not consist of a solid concrete slab with a lightweight concrete skin as had been believed, but was in fact composed of terra- cotta blocks and concrete forming a lightweight slab. Permission to cut the hole had been conveyed to the architect from Mr Sweeney. Having determined the state of the roof, the architect directed the contractor to cease work, to plug the hole and to have the area covered with tarpaulins. It would be up to the engineer in the first instance to determine what should be done next.
5 A strike of concrete workers had commenced on 28 October. Although expected to last for only one or two days, it continued much longer. On 10 and 11 November torrential rain caused extensive damage to the premises and their contents.…