Zhao v Goodman & Anor - [2010] NSWCA 2

New South Wales

Court of Appeal

CITATION: Zhao v Goodman & Anor [2010] NSWCA 2

HEARING DATE(S): 19 November 2009

JUDGMENT DATE:
5 February 2010

JUDGMENT OF: Tobias JA at 1; Macfarlan JA at 152; McClellan CJ at CL at 153

DECISION: Appeal dismissed with costs

CATCHWORDS: CONTRACTS – Building contract – Identification of contract between parties – Claim for rectification of defects and completion of works – Cross-claim for unpaid works – Where findings of primary judge based upon credit of parties – Requirement of appellant to overcome principle in Fox v Percy

LEGISLATION CITED: Evidence Act 1995
Home Building Act 1989

CATEGORY: Principal judgment

CASES CITED: Cullen v Trappell [1980] HCA 10; (1980) 46 CLR 1
Dowling v Rae [1927] HCA 5; (1927) 39 CLR 363
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Sindel v Georgiou [1984] HCA 58; (1984) 154 CLR 661

PARTIES: Yan Shuo Zhao
Marla Shoshana Goodman
Brian Goodman

FILE NUMBER(S): CA 40012/09

COUNSEL: A: In person
R: M Dolenec (Ms)

SOLICITORS: A: In Person
R: Mills Oakley Lawyers, Sydney South

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 976/06

LOWER COURT JUDICIAL OFFICER: Johnstone DCJ

LOWER COURT DATE OF DECISION: 1 October 2008

CA 40012/09
DC 976/06

TOBIAS JA
MACFARLAN JA
McCLELLAN CJ at CL
Friday5 February 2010

YAN SHUO ZHAO v MARLA SHOSHANA GOODMAN and BRIAN GOODMAN

Judgment

1 TOBIAS JA: In 2000 and 2001, the appellant, a licensed builder, constructed a dwelling house upon land owned by the first respondent at 2 Cadigal Place, Dover Heights (the property). That respondent instituted proceedings by Statement of Claim filed in the District Court on 9 March 2006 alleging that the building work performed by the appellant was defective and claiming damages for incomplete work and the cost of rectification work.

2 On 7 April 2006 the appellant filed a defence denying liability on the basis that any damage or defects related to work that was not performed by him but by others or arose because the work was performed in accordance with express instructions from the first respondent or her agent, the second respondent. The appellant also filed a cross-claim seeking outstanding payments which he alleged were due to him under the building contract. This claim was opposed by the respondents. In a judgment delivered on 1 October 2008, following 14 days of hearing, Johnstone DCJ awarded damages to the first respondent in the sum of $157,847.30 plus interest, found in favour of the first and second respondents on the cross-claim and ordered the appellant to pay the respondents’ costs of both the claim and the cross-claim. It is from those orders that the appellant appeals to this Court. It may be noted that the appellant was represented by counsel at trial but represented himself on the appeal.

The issues at trial and the findings of the primary judge

(a) The identification of the contract between the parties

3 The second respondent is the…

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 Zhao v Goodman & Anor

Details

AGLC: Zhao v Goodman & Anor [2010] NSWCA 2
Case: [2010] NSWCA 2
Decision Date: 5 February 2010

CaseChat Overview and Summary

The appeal concerned a dispute arising from a building contract between the appellant, Mr Zhao, and the respondents, Goodman and Anor. Mr Zhao sought to recover damages for alleged defects and the cost of completing the building works, while the respondents cross-claimed for the outstanding payment for works already performed. The primary judge's findings were largely based on the credibility of the parties.

The central legal issues before the Court of Appeal were whether the primary judge erred in their findings of fact, particularly concerning the identification of the contract between the parties and the extent of the works performed and defects present. The appellant was required to demonstrate that the primary judge's findings, which were heavily influenced by the credit attributed to the witnesses, were demonstrably wrong, a principle established in *Fox v Percy*.

The Court of Appeal affirmed the primary judge's findings, concluding that the appellant had failed to discharge the onus of overcoming the principle in *Fox v Percy*. The court found no error in the primary judge's assessment of the evidence and the credit given to the witnesses. Consequently, the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed with costs

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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CITATION:	Zhao v Goodman & Anor [2010] NSWCA 2
HEARING DATE(S):	19 November 2009
JUDGMENT DATE:	5 February 2010
JUDGMENT OF:	Tobias JA at 1; Macfarlan JA at 152; McClellan CJ at CL at 153
DECISION:	Appeal dismissed with costs
CATCHWORDS:	CONTRACTS – Building contract – Identification of contract between parties – Claim for rectification of defects and completion of works – Cross-claim for unpaid works – Where findings of primary judge based upon credit of parties – Requirement of appellant to overcome principle in Fox v Percy
LEGISLATION CITED:	Evidence Act 1995 Home Building Act 1989
CATEGORY:	Principal judgment
CASES CITED:	Cullen v Trappell [1980] HCA 10; (1980) 46 CLR 1 Dowling v Rae [1927] HCA 5; (1927) 39 CLR 363 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Sindel v Georgiou [1984] HCA 58; (1984) 154 CLR 661
PARTIES:	Yan Shuo Zhao Marla Shoshana Goodman Brian Goodman
FILE NUMBER(S):	CA 40012/09
COUNSEL:	A: In person R: M Dolenec (Ms)
SOLICITORS:	A: In Person R: Mills Oakley Lawyers, Sydney South
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 976/06
LOWER COURT JUDICIAL OFFICER:	Johnstone DCJ
LOWER COURT DATE OF DECISION:	1 October 2008