Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  •  Notable Unreported Decision
  • Appeal Determined (QCA) - Appeal Determined (HCA)

Woolcock Street Investments Pty Ltd v CDG Pty Ltd[2002] QCA 88

Woolcock Street Investments Pty Ltd v CDG Pty Ltd[2002] QCA 88

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Case Stated

ORIGINATING COURT:

DELIVERED ON:

21 March 2002

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2002

JUDGES:

McMurdo P, Thomas JA, Douglas J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

The question in the Stated Case namely “on the agreed facts, does the further amended statement of claim delivered on 11 April 2000 disclose a cause of action in negligence against the defendants?” is answered “no”

The plaintiff is ordered to pay the defendants’ costs of the case stated.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – WHERE ECONOMIC OR FINANCIAL LOSS – CARELESS ACTS OR OMISSIONS – where defective design of commercial premises caused subsequent structural defects – liability of defendant engineers to subsequent purchaser

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – WHERE ECONOMIC OR FINANCIAL LOSS – principles in Bryan v Maloney and Fangrove discussed - whether to extend duty of care to subsequent purchasers of commercial premises – whether Perre v Apand supports such an extension of claim for pure economic loss – consideration of overseas authorities – where distinction between commercial purchasers and domestic home buyers properly maintained 

Uniform Civil Procedure Rules, r 482 (2)

Builders Registration and Home Owners Protection Act (Qld) 1979

Queensland Building Services Authority Act (Qld) 1991

Anns v Merton London Borough Council [1978] AC 728, referred to

Bryan v Maloney (1995) 182 CLR 609, considered

Canadian National Railway v Norsk Pacific Steamship Co (1992) 1 SCR 1021, considered

Casa Clara Condominium Ass’n v Charley Toppino & Sons (1993) 620 So 2d 1244 (Fla), considered

Fangrove Pty Ltd v Tod Group Holdings Pty Ltd [1999] 2 Qd R 236, followed

Hill v Van Erp (1997) 188 CLR 159, referred to

Perre v Apand Pty Ltd (1999) 198 CLR 180, considered Sewell v Gregory (1998) 371 SE 2d 82, considered Sutherland Shire Council v Heyman (1985) 157 CLR 424, referred to

Woollahra Municipal Council v Sved (1996) 40 NSWLR 101, referred to

Zumpano v Montagnese [1997] 2 VR 525, referred to

COUNSEL:

A M Daubney SC with K Buxton for the appellant

P A Keane QC with P D T Applegarth SC and M A Hoch for the defendants

SOLICITORS:

Gilshenan & Luton for the appellant

Thynne & Macartney for the defendants

[1] McMURDO P:  It is unnecessary for me to repeat the facts set out in the reasons for judgment of Thomas JA which I have had the benefit of reading.

[2] The question for this Court's determination is whether the statement of claim of the plaintiff, a purchaser of a warehouse and office complex designed by and built under the management and supervision of the defendant engineers, discloses a cause of action against the defendants.  It does so only if the defendants owed a duty of care to the plaintiff.

[3] The plaintiff contends that, since Bryan v Maloney[1] first recognised that a subsequent purchaser of a dwelling house could recover pure economic loss from the negligent builder of the house, the High Court has acknowledged other instances of pure economic loss arising from negligence in a commercial setting: see Hill v van Erp[2] and Perre v Apand Pty Ltd;[3] the approach taken in Perre justifies the incremental extension of the principle in Bryan v Maloney to subsequent purchasers of commercial buildings negligently designed or built under the negligent supervision of engineers.[4]

[4] I find persuasive the observations of the majority in Bryan v Maloney[5] that it is difficult to see why, as a matter of principle, policy or common sense, a negligent builder should be liable for physical injury caused through the collapse of the building because of inadequate foundations[6] but not be liable to the owner of the building for the cost of proactive remedial work to avoid the danger of personal injury.  Whilst that is the approach taken in Canada,[7] it has been rejected in England and Wales.[8]  The majority decision in Bryan v Maloney did not adopt the English approach and reached a conclusion which turned on the economic loss there involved, namely the diminution in value of a permanent dwelling house when the inadequacy of its footings was first demonstrated through patent evidence of damage to the house.  The majority emphasised the building was a permanent residence, not a commercial building and this distinction was a critical ingredient of their reasoning.[9]

[5] The extension of the Bryan v Maloney principle to commercial buildings was considered and rejected by this Court in Fangrove Pty Ltd v Todd Group Holdings Pty Ltd.[10]  The Court unanimously decided that a designer of a commercial building was not subject to a duty of care to a subsequent owner of the premises to design the building so as to avoid potentially dangerous defects resulting in pure economic loss, namely the cost of rectification of resulting damage to the premises.  de Jersey CJ,[11] with whom McPherson JA and Chesterman J agreed, noted that Bryan v Maloney was an extension of the law for recovery of pure economic loss and there is strong reason for thinking that any further extension should lie within the province of the High Court.  This Court is bound by that decision unless it is plainly wrong: Nguyen v Nguyen.[12]

[6] The New South Wales[13] and Victorian Courts of Appeal[14] have also declined to extend Bryan v Maloney to commercial buildings.

[7] The appellant contends that this case is distinguishable from Fangrove on its facts.  The collapsed parapet in Fangrove should have been visible on an inspection of the building whereas here the foundation flaws were latent at the time of purchase by the plaintiff.  Whether the problems with the parapet were latent or patent was not a critical factor in the Court's reasoning.  No factual distinction justifies this Court overturning Fangrove.

[8] The appellant's primary contention is that since Fangrove the High Court in Perre has developed the circumstances where pure economic loss is recoverable in tort. I am not satisfied that anything said in Perre demonstrates that the decision in Fangrove was plainly wrong.  Any extension of the Bryan v Maloney principle to subsequent purchasers of commercial buildings remains a matter for the High Court.

[9] I agree with Thomas JA that the question should be answered "no" and that the plaintiff should pay the defendants' costs of the Case Stated.

[10] THOMAS JA: This is a case stated for the opinion of the Court of Appeal under Rule 483(2) of the Uniform Civil Procedure Rules.  The question is whether on the agreed facts the statement of claim discloses a cause of action in negligence against the defendants.  The answer depends upon whether, on the agreed facts, a subsequent owner of a commercial complex may maintain a claim for pure economic loss against the engineer responsible for designing the complex, and in particular whether such an engineer owes a duty of care to such subsequent owner.

Relevant facts

[11] The complex consists of a warehouse and offices in Townsville.  In 1987 the then trustee-owner of the premises engaged the first defendant to provide structural design and documentation for the foundations of the complex.  The second defendant became the project manager in respect of design and construction of the complex.  The defendants are not alleged to have been in any contractual relationship with the original owner.  Construction was completed in late 1987.

[12] In October 1990 the property manager of the then owner of the complex identified the possibility of movement in the foundations.

[13] In September 1992 the plaintiff purchased the building from a trustee which had in 1991 been substituted for the original trustee owner of the building in 1991.  Prior to the plaintiff’s acquisition of the premises –

(a)The plaintiff did not engage an engineer or building expert to provide any pre-purchase inspection report; and

(b)The plaintiff did not obtain any warranty that the complex was free of structural defects.

[14] In 1994 substantial structural distress to the complex became manifest, due to the settlement of foundations or of material below the foundations.

[15] The material presently before the court does not reveal when the structural problems were first reasonably discoverable.

[16] The statement of claim alleges that the plaintiff has suffered and will suffer loss and damage including the cost of demolishing and reconstructing the affected sections of the complex, and loss of rent during demolition and reconstruction.  Counsel for the plaintiff concedes that the damages (cost of remedial works and loss of rents whilst works are undertaken and diminution in value of the property) are pure economic loss.

A preliminary matter

[17] There was initially some divergence between counsel as to whether or not the defects were discoverable upon reasonable inspection at the time of purchase.  No such fact is alleged in either the statement of claim or in the case stated.  In the end both counsel accepted that no inference could properly be drawn as to whether the defects were or were not reasonably discoverable at that time.  The relevance of such a matter for present purposes is of course its potential impact on the question of vulnerability of the plaintiff.  In the result, the matter is to be determined according to such general vulnerability (if any) as may be inferred to exist in the class of persons described as purchasers of commercial buildings or complexes.

Incremental approach

[18] Mr Daubney SC for the plaintiff concedes that on the existing state of authority, and in particular Bryan v Maloney[15], the relationship between the defendants (persons responsible for the design of commercial premises) and the plaintiff (subsequent purchaser) is not one that has been recognised to give rise to a duty of care which if breached would give rise to an action for damages in the nature of economic loss.   He submits however that Bryan v Maloney does not rule out recognition of such a situation as creating a duty of care.  He further submits that now is the time to take an incremental approach, or “a small step” that recognises such a category.  The determination of whether a relationship is such as to give rise to a duty of care,  and if so the scope of such a duty depend on the totality of the circumstances.  Gibbs CJ observed in Sutherland Shire Council v Heyman:

 

“In deciding whether the necessary relationship exists, and the scope of the duty which it creates, it is necessary for the Court to examine closely all the circumstances that throw light on the nature of the relationship between the parties”.[16]

[19] All necessary circumstances upon which the plaintiff wishes to rely must be found in the case that has been here stated.  The present exercise raises a pure question of law whether these facts are capable of maintaining a cause of action.   

Application of Fangrove Pty Ltd v Tod Group Holdings Pty Ltd[17]

[20] A very similar question, namely whether a designer of a commercial building was subject to a duty of care in favour of subsequent owners of the building arose in this court in Fangrove.  The court was unanimously of the view that on then current authority the designer of a commercial building was not subject to a duty of care to a subsequent owner to design them so as to avoid potentially dangerous defects.  Each  member of the court was also of the view that any extension of the present boundaries of liability beyond that recognised in Bryan v Maloney was a matter for the High Court or the legislature, rather than the Court of Appeal.

[21] The basis upon which Mr Daubney sought to persuade the court to depart from the position taken in Fangrove was his submission that more recent authority, notably Perre v Apand Pty Ltd[18] suggests that the climate is now more favourable for such an extension.  In particular he submitted that the factors recognised in Perre as relevant in determining whether a category of claim for pure economic loss should be recognised should lead to a conclusion that the present claim is an appropriate extension.  The factors upon which he placed particular emphasis were proximity (as manifested by control) and vulnerability.

[22] I do not regard Perre v Apand as providing any clear basis for an expansive view of claims for pure economic loss.  Indeed, for reasons soon to be mentioned the general vulnerability of those who acquire commercial premises may be thought to be significantly less than that of purchasers of dwelling houses.  In particular the factors mentioned in paragraphs 118 to 120 of McHugh J’s judgment in Perre on this topic run counter to the “vulnerability” argument upon which extension of liability is sought.  Further, although an engineer has some degree of control over his or her own actions when preparing a design, he or she retains no control over the situation that arises when a subsequent purchaser buys a property for a particular price on particular terms.  The engineer’s control over the transaction that leads to the plaintiff’s loss is at that point distinctly remote.[19]

[23] The short answer to the present application is that Perre has not changed the law since Fangrove in any way such as to herald the extension of a further category of liability beyond that recognised in Bryan v Maloney.  Accordingly there is no good reason why this court should decide the matter differently from the way it was decided in Fangrove.[20]However as the matter was fully argued, I shall give reasons why I do not find the proposed extension one which in principle should be made. 

Bryan v Maloney:  high watermark or new pathway?

[24]  In the area of pure economic loss, Bryan v Maloney has held, at least in relation to house properties, that a builder may owe a duty of care to a remote purchaser.  That decision, delivered in 1995, recognised a right of action that did not formerly exist in favour of a purchaser of a dwelling house, and was an extension of existing law.

[25]  Although further extension of claims has taken place in Canada and New Zealand, no general trend toward further extension is apparent in the other common law countries. In the United States no clear pattern can be discerned from decisions given in multifarious jurisdictions[21] although claims for economic loss may be recognised when the claim is “closely related to physical damage”[22].  The broad policy concerns that are influential in limiting economic loss claims in the U.S. are a recognition of the need to contain floodgates, and maintenance of the distinction between contract and tort[23].  The position is well summarised by Professor Robertson as follows: 

 

“On the problem of economic loss caused by defects in buildings the American courts are sharply divided.  In some states recovery of economic losses from negligent builders seems to be freely allowed.  (See, eg, Sewell v Gregory (1988) 371 SE2d 82, 84-5 (West Virginia).  Other states take the opposite view and deny a negligence remedy to disappointed home-buyers who have not sustained personal injury or physical damage to other property than the defective structure.  (See, eg, Casa Clara Condominium Ass’n v Charley Toppino & Sons (1993) 620 So.2d 1244 (Florida).  A third group of states have found a middle ground that allows recovery against a negligent builder for the costs of remedying building defects that threaten personal injury. (See eg, Council of Co-Owners v Whiting-Turner Contracting Co (1986) 308 Md. 18, 517 A.2d 336).  Other permutations and compromise positions can also be found in the jurisprudence and literature.”[24]    

[26]  It is worthy of note that the case most relied on in favour of extension of such claims (Sewell v Gregory) concerned a dwelling house which flooded after heavy rain.  The second purchasers successfully sued the builder who also acted as the real estate agent in the sale from the first to the second purchasers.  McGraw J noted that “the appellee foresaw that there would be subsequent purchasers when he constructed the house in question.  Indeed, he took economic advantage of that eventuality by acting as the real estate agent in the sale to the appellants.”  His Honour also considered it relevant that “buyers do not generally have the skills necessary to adequately inspect the house or detect defects.”[25]  Whilst that decision has much in common with Bryan v Maloney, it does not deal with the case of commercial or industrial buildings, and it does not necessarily support an extension of liability such as that which is sought here.  It is also worth noting that the reasoning in the Casa Clara Condominium case includes the observation that “if a house causes economic disappointment by not meeting a purchaser’s expectations, the resulting failure to receive the benefit of the bargain is a core concern of contract, not tort, law.”[26]   The court also referred to statutory protection for homebuyers.[27]

[27]  I am unable to find any clear line of principle in the United States supporting claims in respect of commercial premises against local authorities, builders or those who advise builders.  It has been said that jurisprudence in the United States “continues to be dominated by Cardozo J’s fear of opening the floodgates and remains reluctant to award damages for pure economic loss”[28]

[28]  In Canada, where the approach taken in Anns v Merton London Borough Council[29] has been accepted and enlarged, there is support for the bringing of such claims.  The Anns approach however was rejected in Australia in 1985[30] and it has also been reversed in its country of origin[31].  Although the majority in Bryan v Maloney placed some reliance upon Canadian authority[32] in making an extension in respect of dwelling houses, it is difficult to feel any comfort in resting the further extension that is now sought upon Canadian jurisprudence which leans heavily on Anns.

[29]  The present claim would not succeed in the United Kingdom[33].  Furthermore, until now, a quite restricted view has been taken in Australia of Bryan v Maloney, notably in the Courts of Appeal of New South Wales[34] and Victoria[35].  The New South Wales decision (Woollahra) limits its application to dwelling houses in which the relevant defect was not reasonably discoverable by the claimant purchaser[36].

[30]  It therefore remains to be seen whether Bryan v Maloney will be recognised as a high watermark case or as the gateway to further claims whenever a person acquires ownership of a building that is found to have a defect in it. 

General distinction between persons acquiring homes and persons acquiring commercial buildings

[31] Those engaged in commerce have some capacity to protect themselves against the kind of loss here claimed.  Commercial purchasers may commonly be expected to employ expert assistance to ascertain the condition of the premises.  Further, they are in a position to seek warranties, and to decline to buy if a warranty is not given.  They may be expected to bargain with the benefit of legal and other expert advice.  Circumstances may vary greatly.  For example they may buy cheaply enough to absorb the cost of remedying any defects;  or may know of defects but still think a purchase worthwhile.  But whatever the circumstance, purchasers of commercial buildings are made for commercial profit, not personal need.  This may be generally contrasted with the position of ordinary home-buyer.  It is not unreasonable to expect a greater degree of self-reliance from those engaged in trade and commerce in relation to the soundness of their bargains, than from a potential home-owner.  It is generally true that home-buyers are more vulnerable than those who acquire commercial properties.

[32] Bryan v Maloney rests quite heavily on the vulnerability of members of the public in acquiring homes.[37]  Such reasoning does not necessarily translate to commercial dealings where parties have better means of protecting themselves, including the distinction already drawn as to the degree of reliance upon experts to be expected in the respective areas.  There is of course some difficulty in maintaining a clear distinction between purchasers according to the type of building they buy.  For example a big commercial entity may buy many homes (or a building of home units) for purely commercial reasons, and in doing so use the same methods, engage the same experts and seek similar conditions as a purchaser of a commercial building.  Buildings with mixed uses might also pose a problem.  But few distinctions have tidy edges.  A broad and not necessarily tidy distinction was made by the majority in Bryan v Maloney at 628 where Their Honours recognised:

 

“... the consideration that, by virtue of superior knowledge, skill and experience in the construction of houses, it is likely that a builder will be better qualified and positioned to avoid, evaluate and guard against the financial risk posed by latent defect in the structure of a house.”

The fact that such a distinction should be drawn depends upon a general truth, not upon any bright line of demarcation.  As Chesterman J observed in Fangrove:

 

“The expressed basis of the imputation admits of many discrepancies.  It cannot be supposed that all builders are wealthier and more worldly wise than all persons who might subsequently buy a house constructed by the builder.  Nor is it realistic to assume that every house built and then sold will be comparatively modest and/or will represent the only substantial investment made in the purchaser’s lifetime.  The imputation is made universal because both assumptions hold true for a large number of home purchases in this country.”

 

The distinction between purchasers of commercial buildings and purchasers of dwelling houses is, I think, one that can properly be maintained.

 

Category of persons to whom such a duty might be owed

 

[33] If the extension of liability sought by Mr Daubney is required, the class of potential defendants will not be cut off at the first subsequent owner.  The class “subsequent owners” represents an indeterminate class of persons over a potentially unlimited period.  Mr Daubney submitted that a temporal limitation on such claims in recognised in Bryan v Maloney[38] by reference to the passage:

 

“Nonetheless, the extent of that time span would be limited by the element of reasonableness both in the requirement that damage be foreseeable and in the content of the duty of care”.

 

It is difficult to understand the extent to which such a consideration might cut down the number of links in the chain of purchasers or the time that might elapse before such a claim would fail.  Notwithstanding the above reservation it seems fair to say that the class “subsequent owners” is substantially unlimited by numbers or time.  This consideration was not sufficient to dissuade the majority in Bryan v Maloney from permitting such claims to be maintained in respect of house sales, but I would not willingly open the door further.  The distinction between the two groups of potential defendants is sufficient in my view to raise good reason against recognising liability of builders and designers to a further indeterminate commercial class of persons over a potentially unlimited period.

[34] There are many unanswered problems concerning the scope and application of Bryan v Maloney – (see the numerous unanswered questions of Brooking JA in Zumpano v Montagnese[39]).  Mr Keane QC submitted that many of these problems have not yet been answered or worked out, and that despite its undoubted authority, Bryan v Maloney when further examined might not necessarily be found to afford a sound building block for further extensions.  It is not this court’s function to question the wisdom of Bryan v Maloney.  It is enough to say, as this court did in Fancourt, that if there is to be an extension such as the plaintiff seeks, it should be made by the High Court or by the legislature.

[35] In this area, which undoubtedly involves policy considerations, legislation might be thought to enjoy some potential advantage over the common law method of case by case extension.  In Queensland the legislature saw fit to provide remedies in favour of owners of dwelling houses (but not in respect of commercial premises) as long ago as 1979.[40]  That legislation made a builder liable by means of a statutory warranty to successive purchasers of dwelling houses.[41]  More recently, in 1991[42] a more elaborate scheme was provided for compulsory insurance of builders against defective residential construction work, which enures in favour of later purchasers.  The legislation contains a clear definition of “residential construction work” to which the scheme applies.  Commercial premises and mixed use premises are substantially excluded.  It is unnecessary to attempt a further summary of the legislation.  It illustrates that statutory schemes are able to define areas of liability, and provide for coverage by insurance in a way that the common law can not easily do.  It is also worth noting that the overt policy of the legislature to date has been to draw a distinction between residential premises on the one hand and industrial and commercial premises on the other.  Clearly policy matters are involved, and, so far as my researches are able to discover, no Australian legislature has seen fit to create general liability of this kind within the commercial or industrial area.

[36] It is said that the present extension would merely be an “incremental” extension and that it is appropriate.  I cannot help observing that the legal history of the twentieth century has been almost entirely one of incremental extensions of liability with an exponential increase in litigation with corresponding exposure of citizens to litigious claims and the community to an extensive and costly but necessarily incomplete network of insurances.  What is remarkable about the development of sources and levels of common law liability over the past century is the constant grant of increments and the almost total absence of decrements. 

[37] The present case must be decided on legal principle, which in this area acknowledges that policy considerations properly intrude into the decision whether a new category of liability such as this is to be extended.  Whilst the avoidance of an unduly litigious and inefficient society is perhaps too broad a perception to sway a decision of this kind, the prospect of opening up an extra category of liability against an indeterminate class of consecutive purchasers for an indeterminate period is not one that should be lightly entertained. 

[38] The extension of liability that is sought might in many instances impose upon a builder or construction professional a liability to a subsequent owner in respect of defects which were made unavoidable by reason of the original contract or retainer.  For example a builder might be expressly directed by the original owner not to use certain materials or not to carry out certain procedures such as soil tests, or otherwise be required to “build down to a price”.  Similarly a construction professional might be retained subject to constrictions of those kinds.  Not all such premises are intended to have the same durability or life.  In such a case the commercial premises that result may be cheap or downmarket.  In cases such as those just mentioned it would be strange that the builder or construction professional should be exposed to liability towards the subsequent purchaser of such a building for such defects in quality, when he or she assumed no responsibility for such defects towards the original owner or retainer.  Such persons have not been paid on the basis of warranting that the building would remain free of defects, and the subsequent owner has not paid to acquire such a warranty.

[39] The social question, whether building costs should be inflated to cover the cost of what is, in effect, a transmissible warranty of quality of indefinite duration in respect of commercial buildings, is a question in respect of which extensive economic information that is not here offered would be necessary.  Primarily I think it is a question for the legislature, not the courts.  Sitting as a member of a court with jurisdiction to determine a particular issue raised by the parties, I feel bound to acknowledge that the court has insufficient information of the commercial workings of our society, or of the economic consequences of such an extension, to determine  that as a matter of policy such an extension is desirable.

[40] I conclude that there is no good reason, in terms of principle or policy, to extend the decision in Bryan v Maloney to cases other than residential dwellings.[43]

Orders

[41] The question “On the agreed facts, does the further amended statement of claim delivered on 11 April 2000 disclose a cause of action in negligence against the defendants?” should be answered “No”.

[42] The plaintiff should pay the defendants’ costs of the case stated.

[43] DOUGLAS J: I have read the reasons of Thomas JA and agree with the Orders proposed.

 

Footnotes

[1] (1994-1995) 182 CLR 619.

[2] (1996-1997) 188 CLR 159.

[3] (1999) 198 CLR 180 and cf Esanda Finance Corporation v Peat Marwick Hungerfords (1996-1997) 188 CLR 241.

[4] Perre, esp Gleeson CJ at 192-193 and McHugh J at 219-222.

[5] At 628-630.

[6] See Voli v Inglewood Shire Council (1962-1963) 110 CLR 74.

[7] See also the discussion of the Canadian position by Brennan J (as he then was) in Bryan v Maloney at 640-645 and 648-651 and Toohey J at 662-3 and 664-5.

[8] Murphy v Brentwood District Council [1991] 1 AC 398.

[9] Mason CJ, Deane and Gaudron JJ at 630, Toohey J at 665. See also the comments of McPherson JA in Fangrove Pty Ltd v Todd Group Holdings [1999] 2 QdR 236 at 241, [20].

[10] [1999] 2 Qd R 236.

[11] At 241 and see Chesterman J at 245, [35].

[12] (1989-1990) 169 CLR 245, 268-270.

[13] Woollahra Municipal Council v Sved (1996) 40 NSWLR 101

[14] Zumpano v Montagnese (1997) 2 VR 525. Cf Proprietors Units Plan v Jiniess Pty Ltd NTSC No 245 of 1998, 31 October 2000.

[15] (1995) 182 CLR 609.

[16] (1985) 157 CLR 424, 441.

[17] [1999] 2 Qd R 236.

[18] (1998) 198 CLR 180.

[19] Perre above at paras [124-127]; Hill v Van Erp (1997) 188 CLR 159, 229.

[20] See Nguyen v Nguyen (1989-1990) 169 CLR 245, 268-270.

[21] Per Toohey J in Bryan v Maloney above at 660.

[22] Per McLachlin J in Canadian National Railway v Norsk Pacific Steamship Co (1992) 1 SCR 1021 at 1142,

[23] Professor DW Robertson, “An American Perspective”, in B S Markesinis and S F Deakin (eds) Tort Law 4th ed (Oxford; 1998, Clarendon Press) at 211-215.

[24] Ibid at 214-215.

[25] Sewell v Gregory (1998) 371 SE 2d 82 at 84-85.

[26] Casa Casa Condominium Ass’n v Charley Toppino & Sons (1993) 620 So.2d 1244 (Fla) at 1247.

[27] Ibid 1247.

[28] Canadian National Railway v Norsk Pacific above at 1142, no doubt with Glanzer v Shepard (1922) 233 NY 236; 135 NE 275 and Ultramares Corporation v Touche (1931) 174 NE 441 in mind; cf Kirby J’s analysis in Perre v Apand above at 271.

[29] [1978] AC 728.

[30] Sutherland Shire Council v Hayman (1984-1985) 157 CLR 424; cf Brennan J’s discussion in Bryan v Maloney above at 649.

[31] Murphy v Brentwood District Council [1991] 1 AC 398.

[32] Eg Winnipeg Condominium Corporation No 36 v Bird Construction Co Limited (1995) 121 DLR (4th) 193.

[33] Murphy v Brentwood District Council above at 477, 487-488.

[34] Woollahra Municipal Council v Sved (1996) 40 NSWLR 101.

[35] Zumpano v Montagnese [1997] 2 VR 507.

[36] Woollahara above at 133 and 152.

[37] Bryan v Maloney above at 624, 627.

[38] Bryan v Maloney above at 626.

[39] Zumpano above at 528-536.

[40] Builders Registration and Home Owners Protection Act 1979 (Qld).

[41] The Act is discussed by W D Duncan – “Liability for Defective Premises in Queensland” (1990-1991) Vol 11 Queensland Lawyer 127. The term “dwelling house” is clearly defined.

[42] Queensland Building Services Authority Act 1991 (Qld).

[43] Cf Woollahra Municipal Council above at 133; Zampano above.

Close

Editorial Notes

  • Published Case Name:

    Woolcock St Investments P/L v CDG P/L & Anor

  • Shortened Case Name:

    Woolcock Street Investments Pty Ltd v CDG Pty Ltd

  • MNC:

    [2002] QCA 88

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Thomas JA, Douglas J

  • Date:

    21 Mar 2002

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Appeal Determined (QCA)[2002] QCA 8821 Mar 2002-
Special Leave Granted (HCA)[2003] HCATrans 64614 Mar 2003-
HCA Judgment[2004] HCA 16; (2004) 216 CLR 51501 Apr 2004-

Appeal Status

Appeal Determined (QCA) - Appeal Determined (HCA)

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.