Wilson v Pilgrim No. Scciv-02-453 - [2002] SASC 205

WILSON v PILGRIM
[2002] SASC 205
Magistrates Appeal
BLEBY J
Background

The respondents are the owners of a house property at Mallala. One or both of them has occupied the premises since about April 1970. The male respondent had carried out some extensions to the original house in 1971. That building work was approved by the Mallala Council. It comprised an extension at the rear of the premises, the external timber frame for the walls being mounted on timber stumps. The floor was a non-reinforced concrete floor. The external cladding was cement weatherboard, and the interior walls were lined with gyprock or cement sheeting. The male plaintiff had also installed a toilet, a wash basin and hot water service, with a dividing wall to create the water closet. He had intended to sub-divide the area further into a bathroom, shower and toilet, laundry and sewing area, together with an enclosed porch way. However, those divisions were never completed by him.
The appellant is a builder. In 1996 he agreed with the respondents to carry out some limited renovation work on the extensions which the male respondent had built. There was a dispute as to the terms of the contract which was resolved in the Magistrates Court and which does not concern this appeal. In general terms, the scope of the works comprised the removal and replacement of the existing concrete floor, the installation of new plumbing, the installation of a new ceiling and the recladding of the internal walls of the extension.
Shortly after the building work commenced the appellant ascertained that the work originally intended to be carried out in relation to the replacement of the concrete floor was complicated by the existing footing system. Without any formal variation to the contract, he proceeded to replace that system with a thickened edge to the concrete floor, the timber framed walls and roof in the meantime being supported by ropes and bricks.
As the work progressed, disputes arose between the appellant and the respondents. On 9 December 1996 building work was suspended after a heated discussion on the site.
Various discussions and investigations took place which revealed, according to the advice of the respondents’ engineers, that the new floor and replacement footings did not comply with relevant building regulations and was in many respects defective. Their advice was that the floor and footing system could not be repaired or otherwise made to comply with the regulations without complete removal. This entailed demolition of the whole extension and rebuilding. This was commenced in November 1998 and completed in February 1999. The respondents claimed, as damages for breach of contract in the action they subsequently brought against the appellant, the cost of demolition and rebuilding.
The respondents had also relied on a representation by the appellant at the time of entering into the contract that the work did not require approval by the District Council of Mallala because it was renovation work and not the construction of a new building or extension.…

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.

Continue reading Wilson v Pilgrim No. Scciv-02-453

Details

AGLC: Wilson v Pilgrim No. Scciv-02-453 [2002] SASC 205
Case: [2002] SASC 205
Decision Date: 12 July 2002

CaseChat Overview and Summary

This appeal arises out of a dispute between a builder, the appellant, and the owners of a house, the respondents, as to the adequacy of renovation work carried out by the builder on an extension to the house. The respondents sued the builder for breach of contract and for breach of statutory warranties. They claimed damages for the cost of demolition and rebuilding the extension. The Magistrate found in favour of the respondents and the builder appeals. The appeal was heard and dismissed by Bleby J in the Supreme Court of South Australia.

The appeal raises three grounds. The first ground is that the Magistrate erred in finding that the respondents were justified in demolishing the extension and rebuilding it without seeking approval of the local council for the works performed under the contract as modified by the proposed additional works of Mr Goldfinch. The second ground is that the Magistrate erred in finding that the measure of the respondents’ loss was the cost of demolishing and constructing a new extension when the contract between the parties did not provide for that scope of works. The third ground is that the Magistrate erred in only allowing a credit of $800 in respect of the betterment enjoyed by the respondents and should have found that the true measure of the betterment was $6,951.25.

The court rejected the first ground of appeal. It held that the respondents were entitled to be placed in the same position they would have occupied had the builder performed the original contract. The court also rejected the second ground of appeal. It held that the only remedy the respondents could pursue was damages for breach of contract. The court allowed the third ground of appeal and reduced the judgment sum by $1,700.00. It held that the Magistrate had erred in calculating the credit for the betterment enjoyed by the respondents.

Orders