Willshee v Westcourt Ltd

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WILLSHEE -v- WESTCOURT LTD [2009] WASCA 87

CORAM:   MARTIN CJ

BUSS JA
NEWNES AJA

HEARD:   19 FEBRUARY 2009

DELIVERED          :   18 MAY 2009

FILE NO/S:   CACV 21 of 2008

BETWEEN:   DEREK MICHAEL WILLSHEE

Appellant

AND

WESTCOURT LTD (ABN 98 009 250 373)
Respondent

ON APPEAL FROM:

For File No              :  CACV 21 of 2008

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :TEMPLEMAN J

Citation  :WILLSHEE -v- WESTCOURT LTD [2008] WASC 18

File No  :CIV 1497 of 2004

Catchwords:

Contract - Breach of contract - Implied term that limestone would be of high quality - Reasonableness of damages - 'Ruling principle' from Robinson v Harmon (1848) 1 Exch 880; (1848) 154 ER 363 - Put in same position as if contract had been performed - Unreasonableness qualification - Turns on own facts

Legislation:

Supreme Court Act 1935 (WA), s 32
Trade Practices Act 1974 (Cth)

Result:

Appeal allowed
Cross-appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr M L Bennett

Respondent:     Mr S Owen-Conway QC & Mr P A Monaco

Solicitors:

Appellant:     Lavan Legal

Respondent:     GV Lawyers

Case(s) referred to in judgment(s):

Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613

Nouvelle Homes Pty Ltd v G & M Smargiassi [2008] WASC 127

Radford v De Froberville [1977] 1 WLR 1262

Robinson v Harmon (1848) 1 Exch 850; (1848) 154 ER 363

Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 83 ALJR 390; [2009] HCA 8

MARTIN CJ: 

Summary

1. The appellant, Derek Michael Willshee (Mr Willshee) claimed that Westcourt Ltd (Westcourt) breached a term of a contract for the construction of a house by using inferior or second quality limestone in the external cladding of the house.  The trial judge upheld Mr Willshee's claim, but awarded him damages which reflected only the cost of cleaning and sealing the limestone, and some repainting necessitated by the cleaning and sealing work.  Mr Willshee's claim for damages in an amount equal to the costs of, and associated with, replacement of the inferior limestone was rejected by the trial judge.  Mr Willshee appeals from that part of the decision of the trial judge.  Westcourt cross‑appeals from the determination that it breached its contractual obligations to Mr Willshee.  For the reasons given below, Westcourt's cross‑appeal should be dismissed, and Mr Willshee's appeal should be allowed.

The decision of the trial judge

1. The reasons of the trial judge comprehensively review the negotiations which preceded entry into the contract for the construction of the house, the representations that were made by Westcourt in the course of those negotiations, the terms of the building contract, and the evidence given by the various witnesses that were called.  As the issues raised by the appeal and the cross‑appeal are relatively confined, I will refer only to those aspects of the decision of the trial judge that…