Willshee v Westcourt Ltd

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

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

CORAM:   TEMPLEMAN J

HEARD:   22 ­ 30 NOVEMBER 2007

DELIVERED          :   22 FEBRUARY 2008

FILE NO/S:   CIV 1497 of 2004

BETWEEN:   DEREK MICHAEL WILLSHEE

Plaintiff

AND

WESTCOURT LTD (ABN 98 009 250 373)
Defendant

Catchwords:

Contract - Breach of contract to build house - Representation that high quality limestone used to construct external wall of house - Reasonableness of damages - Turns on own facts

Legislation:

Trade Practices Act 1974 (Cth), s 52

Result:

Damages awarded

Category:    B

Representation:

Counsel:

Plaintiff:     Mr P G Clifford

Defendant:     Mr S Owen­Conway QC & Mr P A Monaco

Solicitors:

Plaintiff:     Lavan Legal

Defendant:     GV Lawyers

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

Bellgrove v Eldridge (1954) 90 CLR 613

Jones v Dunkel (1959) 101 CLR 298

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

TEMPLEMAN J: 

Introduction

1. In 1999, the defendant, which carries on business under the name Plunkett Homes, built a substantial house for Derek Michael Willshee, the plaintiff, on his land at Jandakot.

2. The work was carried out pursuant to a written contract embodying a specification which required the external walls of the house to be constructed of brick with a limestone cladding.  The plaintiff contends that negligently, or in breach of its contractual duty to him, the defendant supplied and installed inferior and unsuitable limestone.

3. The plaintiff contends further that certain representations made to him by employees of the defendant, and on which he relied in deciding to use limestone in the construction of the house, were false, and constituted misleading and deceptive conduct, within the meaning of the Trade Practices Act 1974 (Cth).

4. The plaintiff claims damages in an amount of $257,977.91, this being the cost of removing and replacing the limestone cladding.  The plaintiff claims also the costs associated with moving himself and his family from the house while the rectification work is in progress: and the costs of interim repairs carried out to date.

5. The defendant denies that the limestone cladding is defective, apart from five blocks it has offered to replace: and it denies that it engaged in any misleading or deceptive conduct.

6. The trial was conducted over seven sitting days, during which I took evidence from eleven witnesses, including six who were tendered as expert witnesses, albeit subject to certain objections.

7. At the request of the defendant, and without objection from the plaintiff, I attended at the plaintiff's house after the parties had closed their respective cases, and viewed the limestone cladding.  I did so in order to ensure that I had a full understanding of the evidence.

8. I wish to emphasise that the view did not involve my taking further evidence.  I have refrained from reaching any conclusion, or even an impression, as a result of the view.  My findings and conclusions are based entirely on the evidence adduced at trial.

9. In making those findings, I have had regard to the numerous objections to evidence contained…