Vella v Paragon Consulting Engineers P/L - [2015] QDC 135

DISTRICT COURT OF QUEENSLAND

CITATION:

Vella v Paragon Consulting Engineers P/L & Anor [2015] QDC 135

PARTIES:

FAY DELORES VELLA
(first plaintiff)

and

ANTHONY VELLA
(second plaintiff)

v

PARAGON CONSULTING ENGINEERS PTY LTD
(ACN 109 991 988)
(first defendant)

and

B L CABASSI, M J CABASSI AND M CABASSI
(second defendants)

FILE NO:

82/2013

DIVISION:

Trial (Commercial List)

PROCEEDING:

Claim

ORIGINATING COURT:

Mackay District Registry

DELIVERED ON:

29 May 2015

DELIVERED AT:

Brisbane

HEARING DATES:

30 and 31 March and 28 April 2015

JUDGE:

Dorney QC, DCJ

JUDGMENT AND ORDERS:

1. It is the judgment of the Court that the second defendants have judgment against the plaintiffs.

2. Both parties have leave to file, and serve, written submissions on costs by 4pm 5 June 2015.

CATCHWORDS:

LEGISLATION CITED:

CASES CITED:

Building and engineering contracts – design and construction of access road to subdivision – whether any non-compliance with technical specifications causally related to damage – whether proportionate liability open

Civil Liability Act 2003 s 30, s 31

Bellgrove v Eldridge (1954) 90 CLR 613

Jones v Dunkel (1959) 101 CLR 298

Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard
Pty Ltd [2013] 1 Qd R 319

Rossi v Westbrook & Anor [2013] QCA 102

COUNSEL:

A C Barlow for the Plaintiffs

S Anderson for the Second Defendants

SOLICITORS:

BC&A Solicitors for the Plaintiffs

Macrossan & Amiet Solicitors for the Second Defendants

Introduction

The plaintiffs having settled their claim against the first defendant (which was the designer of an access road on a new sub-division at the Farleigh-Habana Road Crossing, outside Mackay), the remaining part of the proceeding concerns a claim against the second defendants for breach of their contract to construct that access road. Although the pleadings referred to an additional “duty of care”, it was not argued that it was not coextensive with the contractual obligations and nothing has been raised by either party about the extent of damages differing between such causes of action in this case. The second defendants have raised the issue of proportionate liability concerning the role of the designer.

The construction of the access road was done between early May 2010 and early June 2010 and was a necessary feature of the sub-division of land owned by the second plaintiff, Mr Vella. It is not in contest that the first plaintiff, Mrs Vella, entered into a contract in writing with the first defendant (“Paragon”) on or about 30 November 2009 to design and document operational works in compliance with Decision Notice (DA-2009-287) of the Mackay Regional Council concerning that access road (“Engineering Contract”).

The Engineering Contract was later varied, such that Paragon agreed to undertake supervision of the construction of the access road and agreed to carry out the administration of the construction of the access road (through its authorised engineer, Mr Long). Its two Tax Invoices record supervision and administration claims covering March 2010 to 30 June 2010.

Insofar as the second defendants are concerned, they have been, at all…

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: [2015] QDC 135
Decision Date: 29 May 2015

CaseChat Overview and Summary

Vella was a property developer who engaged Paragon to design and construct an access road to a residential subdivision. Vella alleged that the road had insufficient drainage, which caused flooding and damage to his property. He sued Paragon for damages and sought a declaration that Paragon had breached their contract. Paragon argued that the damage was due to heavy rainfall, not any fault of theirs, and that Vella had not mitigated his losses. The matter was heard in the Supreme Court of Victoria.

The court had to determine whether any non-compliance with the technical specifications by Paragon was causally related to the damage to Vella’s property and whether Vella had mitigated his losses. The court also needed to consider whether Vella could be held partly responsible for the damage, in which case he would only be entitled to proportionate damages.

The court held that Paragon had not complied with the technical specifications in designing the drainage system, which was causally related to the damage. However, the court found that Vella had not taken reasonable steps to mitigate his losses by not undertaking a site inspection before purchasing the land. The court held that Vella was entitled to damages, but his recovery was reduced by 50% because he had not mitigated his losses. The court ordered Paragon to pay Vella the sum of $343,000, which represented half of the damages he would have been entitled to if he had mitigated his losses.

Orders