Xtraordinary Constructions Pty Ltd v Luppino - [2021] SASC 132

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
XTRAORDINARY CONSTRUCTIONS PTY LTD v LUPPINO & ANOR
[2021] SASC 132
Judgment of the Honourable Justice David
19 November 2021
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - THE CONTRACT - STATUTORY WARRANTIES FOR RESIDENTIAL BUILDING WORK
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT
On or about 30 June 2010, the respondents entered into a building contract with the appellant to build a residence on the respondents' property. The residence was a multi-storey dwelling consisting of a three-car garage and an office at the lower level, and four bedrooms, living areas, two bathrooms, and an alfresco area on the upper level.
This appeal raises one issue in relation to a box gutter. It is accepted by both parties that the box gutter installed between the main roof of the property and the alfresco roof is defective and that the defects require rectification. At trial, both parties engaged different expert witnesses who proposed different design solutions to replace the defective box gutter.
On appeal, the appellant submits that the trial Magistrate erred in preferring the solution of the respondents' expert, Mr Magryn (the 'Magryn solution'), over that proposed by the appellant's expert, Mr Goldie (the 'Goldie solution'), to remedy the defective box gutter. The issues on appeal are whether the trial Magistrate was in error in making a statutory rectification order under s 37(6)(a) of the Building Work Contractors Act 1995 (SA) (the 'Act') based on the Magryn solution rather than the Goldie solution, and whether the rectification order made by the Magistrate should be set aside and substituted with an alternative order (based on the Goldie solution).
Held, per David JA, dismissing the appeal:
1. No error has been established in the trial Magistrate's decision to make an order under s 37(6)(a) of the Act that the rectification work be based on the Margryn solution.
2. The trial Magistrate did not err by not having preferred the Goldie solution.
3. The appellant has established no error by the trial Magistrate.
Building Work Contractors Act 1995 (SA) ss 32 & 37, referred to.
Luppino & Anor v Xtraordinary Constructions Pty Ltd [2021] SAMC 28, discussed.
Bellgrove v Eldridge (1954) 90 CLR 613; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; Robinson V Harman (1848) 1 Ex 850; Stone v Chappel (2017) 128 SASR 165; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272, considered.

XTRAORDINARY CONSTRUCTIONS PTY LTD v LUPPINO & ANOR
[2021] SASC 132
Supreme Court: Civil Appeal

DAVID JA:On or about 30 June 2010, the respondents, Mr Daniel Luppino and Ms Aleisha Luppino, entered into a building contract with the appellant, Xtraordinary Constructions Pty Ltd, to build a residence on the respondents’ property in Salisbury Heights. The residence was a multi-storey dwelling consisting…

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 Xtraordinary Constructions Pty Ltd v Luppino

Details

AGLC: Xtraordinary Constructions Pty Ltd v Luppino [2021] SASC 132
Case: [2021] SASC 132
Decision Date: 19 November 2021

CaseChat Overview and Summary

The appeal in Xtraordinary Constructions Pty Ltd v Luppino was heard by the South Australian Court of Appeal. The central issue in the case revolves around a dispute concerning the defective box gutter installed between the main roof and the alfresco roof of a multi-storey dwelling constructed by Xtraordinary Constructions for Luppino. Both parties agreed that the box gutter was defective and required rectification, but they disagreed on the appropriate solution proposed by their respective experts. Xtraordinary Constructions, the appellant, contested the trial Magistrate's decision to base the rectification order on the respondents' expert's solution (the Magryn solution) rather than the appellant's expert's solution (the Goldie solution). The appeal raised questions about whether the trial Magistrate erred in making the statutory rectification order under s 37(6)(a) of the Building Work Contractors Act 1995 (SA) based on the Magryn solution and whether the rectification order should be set aside and replaced with an order based on the Goldie solution.

The Court of Appeal held that the trial Magistrate did not err in preferring the Magryn solution over the Goldie solution. The court found that the trial Magistrate had not made an error in deciding that the Magryn solution was the appropriate one for rectifying the defective box gutter. The appellant failed to establish any error in the trial Magistrate's decision. Consequently, the appeal was dismissed, and the original order made by the trial Magistrate was upheld. The court also indicated that it would hear the parties on the issue of costs.

Orders

Orders of the court

On or about 30 June 2010, the respondents entered into a building contract with the appellant to build a residence on the respondents' property. The residence was a multi-storey dwelling consisting of a three-car garage and an office at the lower level, and four bedrooms, living areas, two bathrooms, and an alfresco area on the upper level.

This appeal raises one issue in relation to a box gutter. It is accepted by both parties that the box gutter installed between the main roof of the property and the alfresco roof is defective and that the defects require rectification. At trial, both parties engaged different expert witnesses who proposed different design solutions to replace the defective box gutter.

On appeal, the appellant submits that the trial Magistrate erred in preferring the solution of the respondents' expert, Mr Magryn (the 'Magryn solution'), over that proposed by the appellant's expert, Mr Goldie (the 'Goldie solution'), to remedy the defective box gutter. The issues on appeal are whether the trial Magistrate was in error in making a statutory rectification order under s 37(6)(a) of the Building Work Contractors Act 1995 (SA) (the 'Act') based on the Magryn solution rather than the Goldie solution, and whether the rectification order made by the Magistrate should be set aside and substituted with an alternative order (based on the Goldie solution).

Held, per David JA, dismissing the appeal:

1. No error has been established in the trial Magistrate's decision to make an order under s 37(6)(a) of the Act that the rectification work be based on the Margryn solution.

2. The trial Magistrate did not err by not having preferred the Goldie solution.

3. The appellant has established no error by the trial Magistrate.

Background

Background to the litigation

The appellant seeks an order in place of order 1 made by the trial Magistrate on 5 March 2021, that in respect of the defects identified at paragraph 6.1 of the respondents’ Claim,[1] remedial works are to be carried out in accordance with the remediation proposal in the Core Engineering report dated 3 March 2019. That is, an order that remediation works are to be carried out in accordance with the Goldie solution, not the Magryn solution.[1] Claim – Revision 3 (FDN 17 in AMCCI-16-3508).Background On or about 30 June 2010, the respondents entered into a contract with the appellant for the construction of a multi-storey dwelling on the respondents’ property (the ‘Contract’). The total contract price was $672,300, plus the addition of a variation costing $1,515. The dwelling was designed for the respondents by architects, D’Andrea and Associates (SA) Pty Ltd. The Contract required that the building works be carried out in accordance with the Contract documents, which included, inter alia:1.Four Master Builders Association SA Domestic Building Plain English Contracts in respect of four stages of building works (‘MBA Contracts’);2.Architectural drawings prepared by D’Andrea and Associates (SA) Pty Ltd dated 20 April 2009 and 20 April 2010 (‘Plans’);3.The Master Builders Specification House or Additions & Alterations dated 27 April 2010 (‘Specification’); and4.The Schedule of Finishes prepared by the appellant dated 11 May 2010. According to the Plans, the main roof of the building was designed to fall directly onto the alfresco roof, which was in turn designed to fall to a single linear box gutter behind a parapet wall along the rear or northern edge of the dwelling. As built, the alfresco roof is contained in an internal parapet at a higher level than the main roof. The internal parapet is surrounded by an internal box gutter onto which the main roof drains. The internal box gutter drains in a westerly direction to an eaves gutter. It also drains in an easterly direction through three 90° turns around edges of the internal parapet wall and under a 20 mm gap in the main roof sheeting into the eaves gutter along the northern end of the building. Both parties’ experts agree that the internal box gutter is undersized and inadequate. Clause 4.1 of the MBA Contracts stipulated that the appellant was to ‘comply with all Acts, By-Laws and/or Regulations that apply to the Work’. In the MBA Contracts, ‘Work’ was defined as ‘the house or other construction as shown on the contract drawings and described by the specification and other contract documents’. The Specification included specifications as to rainwater goods, including all gutters, downpipes and flashings. Pursuant to cl 12(f) of the Specification, gutters were to ‘be installed to a minimum fall of 1:500 for eaves gutters and 1:100 for box gutters’. Further, all rainwater goods were to ‘comply with the requirements of AS 2179 for metal and AS 1273 for UPVC components’. As to the water service, cl 13(b) of the Specification provided that ‘[t]he water service shall comply with AS/NZS 3500’.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I do not consider that the trial Magistrate erred in not having preferred the Goldie solution. Conclusion and orders The appellant has established no error by the trial Magistrate. I dismiss the appeal. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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