Special leave refused with costs by the High Court, 3 September 2010, (S105/2010)
New South Wales
Court of Appeal
CITATION:
Wheeler & Anor v Ecroplot Pty Ltd [2010] NSWCA 61
HEARING DATE(S):
19 February 2010
JUDGMENT DATE:
1 April 2010
JUDGMENT OF:
McColl JA at 1; Basten JA at 2; Macfarlan JA at 3
DECISION:
(1) Appeal allowed; (2) Orders made at first instance be set aside other than the specific costs orders made on 7 November 2008 and 18 December 2008; (3) Judgment for the appellants in the sum of $107,224.64 plus interest pursuant to s 101 of the Civil Procedure Act 2005 from 20 February 2009; (4) Order the respondent to pay the appellants’ costs of the appeal and of the proceedings at first instance other than the costs which are the subject of the specific costs orders referred to in (2) above; and (5) Grant the respondent a certificate under the Suitors’ Fund Act 1951 if not disqualified under s 6(7).
CATCHWORDS:
CONTRACTS - building contract - builder's obligation to execute work in proper and workmanlike manner - compacted land fill allowed to dry out before concrete slab poured on top of it - DAMAGES - breaches of building contract for construction of dwelling - whether underpinning to rectify stability related breach reasonable - Bellgrove v Eldridge - Tabcorp Holdings Pty Ltd v Bowen Investments Pty Ltd
1 McCOLL JA: I agree with Macfarlan JA’s reasons and the orders his Honour proposes.
2 BASTEN JA: I agree with the orders proposed by Macfarlan JA and his Honour’s reasons.
: These reasons for judgment are organised under the following headings:
(1) Nature of case and conclusions [4] (2) The building contract [8] (3) Construction of the home [11] (4)…
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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AGLC
Wheeler v Ecroplot Pty Ltd [2010] NSWCA 61
Case
[2010] NSWCA 61
Decision Date
CaseChat Overview and Summary
In *Wheeler v Ecroplot Pty Ltd*, the New South Wales Court of Appeal considered a dispute arising from a building contract for the construction of a dwelling. The appellants, the owners of the dwelling, alleged that the respondent builder had breached its contractual obligation to execute the work in a proper and workmanlike manner. Specifically, the appellants contended that the builder had allowed compacted land fill to dry out before pouring a concrete slab on top of it, leading to stability issues.
The Court of Appeal was required to determine whether the builder had breached the contract by failing to construct the dwelling in a proper and workmanlike manner, and if so, what damages were recoverable. A key issue was whether the proposed underpinning work to rectify the stability-related breach was reasonable, having regard to the principles established in cases such as *Bellgrove v Eldridge* and *Tabcorp Holdings Ltd v Bowen Investments Pty Ltd*.
The Court found that the builder had indeed breached the contract. Applying the principles of remoteness and reasonableness in assessing damages for breach of a building contract, the Court determined that the cost of rectifying the defects, including underpinning, was a reasonable measure of the loss suffered by the appellants. The Court reasoned that the builder's failure to properly prepare the foundation had directly caused the instability, and the proposed rectification work was necessary to restore the dwelling to the condition it would have been in had the contract been performed properly.
The Court of Appeal allowed the appeal, setting aside the orders made at first instance. It entered judgment for the appellants in the sum of $107,224.64, plus interest. The respondent was ordered to pay the appellants’ costs of the appeal and of the proceedings at first instance, with a provision for a certificate under the Suitors’ Fund Act 1951.
Orders
Orders of the court
(1) Appeal allowed;
(2) Orders made at first instance be set aside other than the specific costs orders made on 7 November 2008 and 18 December 2008;
(3) Judgment for the appellants in the sum of $107,224.64 plus interest pursuant to s 101 of the Civil Procedure Act 2005 from 20 February 2009;
(4) Order the respondent to pay the appellants’ costs of the appeal and of the proceedings at first instance other than the costs which are the subject of the specific costs orders referred to in (2) above; and
(5) Grant the respondent a certificate under the Suitors’ Fund Act 1951 if not disqualified under s 6(7).