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
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
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…
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- Case
- [2009] WASCA 87
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether there was an implied term in the contract that the limestone would be of high quality, and if so, whether the damages awarded by the lower court were reasonable. The court had to consider the ruling principle from Robinson v Harmon, which states that damages should put the non-defaulting party in the same position as if the contract had been performed, subject to the qualification of reasonableness.
The court found that there was an implied term in the contract that the limestone would be of high quality, as it was reasonable to expect that the limestone supplied for a construction project would be of high quality. However, the court also found that the damages awarded by the lower court were unreasonable, as they did not put the plaintiff in the same position as if the contract had been performed. The court held that the reasonableness of damages is a matter that turns on its own facts, and the lower court had erred in its calculation of damages. The court allowed the appeal and dismissed the cross-appeal, ordering that the case be remanded to the lower court for a recalculation of damages.
Orders
Orders of the court
Appeal allowed
Cross-appeal dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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