Williams v Stone Homes Pty Ltd
[2014] QDC 64
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- Unreported Judgment
- Williams v Stone Homes Pty Ltd[2014] QDC 64
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Williams v Stone Homes Pty Ltd[2014] QDC 64
Williams v Stone Homes Pty Ltd[2014] QDC 64
DISTRICT COURT OF QUEENSLAND
CITATION: | Williams v Stone Homes P/L & Anor [2014] QDC 64 |
PARTIES: | VICKIE WILLIAMS and MARK WILLIAMS (plaintiffs) v STONE HOMES PTY LTD (ACN 115 467 439) (defendant) and ACAME PTY LTD (ABN 28 002 465 072) (third party) |
FILE NO: | 676/12 |
DIVISION: | Civil |
PROCEEDING: | Claims (by the plaintiffs, the defendant and the third party) |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 1 April 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 and 11 March 2014 |
JUDGE: | Dorney QC DCJ |
JUDGMENT AND ORDERS: |
|
CATCHWORDS: | Building contracts – enforceability – whether illegal as performed because licence necessary – whether recoverability where contractual breach in issue, rather than remuneration – whether extra-territorial effect for non-licensing offence – whether proportionate liability effectively raised |
LEGISLATION CITED: CASES CITED: COUNSEL: | Uniform Civil Procedure Rules 1999, r 166(1), r 202, r 203, r 204, r 225, r 697(2) Acts Interpretation Act 1954, s 14A, s 35 Civil Liability Act 2002 (NSW) Civil Liability Act 2003 (Qld), s 28, s 28(1)(a), s 29, s 30, s 31, s 32, s 32(4), s 32(5), s 32A, s 32B Civil Proceedings Act 2011, s 58, s 58(3) Criminal Code Act 1899, s 12(3) Home Building Act 1989 (NSW) Law Reform Act 1995, s 6(c), s 7 Queensland Building and Construction Commission Act 1991, s 103 Queensland Building Services Authority Act 1991 (Reprint 9), s 4, s 42, s 42(1), s 42(3), s 42(9), s 44E(a), s 44E(c), Sch 2 Queensland Building Services Authority Regulation 2003, s 5, Part 37 Trade Measurement Act 1990 Australian Timber & Trusses P/L v T&M Buckley P/L [2012] QSC 110 Baltic Shipping Co v Dillon (1992-1993) 176 CLR 344 Barkworth v Sidhu [2011] 1 Qd R 419 Bellgrove v Eldridge (1954) 90 CLR 613 Burmic P/L v Goldview P/L [2003] 2 Qd R 477 Byers v Dorotea P/L (1986) 69 ALR 715 Chiropractic Board of Aust v Jamieson [2013] QSC 77 Coote v Richards [2001] 2 Qd R 20 Coshott v Fewings Joinery P/L [1996] NSWCA 122 Dart Holdings P/L v Total Concept Group P/L & Ors [2012] QSC 158 Falko v James McEwan & Co P/L [1977] VR 447 Gardiner v Agricultural and Rural Finance P/L [2007] NSWCA 235 Helicopter Sales P/L v Rotor-Work P/L (1974) 132 CLR 1 Hobbs Haulage P/L v Zupps Southside P/L & Anor [2013] QSC 319 Kay’s Leasing Corp P/L v Fletcher (1964) 116 CLR 124 Kim & Anor v Cole & Ors [2002] QCA 176 Knott Investments P/L v Fulcher [2014] 1 Qd R 21 McNab Constructions Aust P/L v QBSA [2010] QCA 380 Meandarra Aerial Spraying P/L v GEJ & MA Geldard P/L [2013] 1 Qd R 319 Miller v Miller (2011) 242 CLR 446 Robinson v Harman (1848) 1 Exch 850 Sutton v Zullo Enterprises P/L [2000] 2 Qd R 196 Tabcorp Holdings Ltd v Bowen Investments P/L (2009) 236 CLR 272 Theden v Nominal Defendant [2008] 2 Qd R 367 TP Rich Investments P/L v Calderon [1964] NSWR 709 Ucak v Avante Developments [2007] NSWSC 367 Union Steamship Co of Aust P/L v King (1988) 166 CLR 1 Yates v Mobile Marine Repairs P/L [2007] NSWSC 1463 Self-representation by the plaintiffs G Coveney for the defendant B Codd for the third party |
SOLICITORS: | Graham Isles for the defendant Norton Rose for the third party |
Introduction
- [1]The plaintiffs have been unable to have their kit home (partially erected on land at 31 Duffy Road, Burnett Heads, Queensland) certified. The female plaintiff had (with her son, the male plaintiff) contracted with the defendant (which conducted its business in New South Wales) on 21 March 2009 to supply the plans and materials for that kit home. The defendant brought a third party proceeding against the third party who, as consulting engineers, certified plans, seeking an indemnity, or contribution. The third party in turn has sought a finding of proportionate liability as between it and the defendant.
- [2]The design of part of the construction of a kit home for the plaintiffs was defective by reason that the land on which the house was built was located in a wind region which had a higher wind rating than that on which the plans were based; and that problem was not effectively addressed in engineering terms. As the defendant fairly conceded both at the beginning of the trial and in its Outline of Argument, the defendant did not contest liability against the plaintiffs, accepting that the plans supplied with the kit home were “deficient” in that they were for Wind Region category B rather than for Wind Region category C (as they should have been). Also at the beginning of the trial, the third party did not contest the defendant’s assertion that “the issue of liability as between the defendant and the third party is … not in issue”, subject to “enforceability” and “apportionment” arguments, expressly conceding itself that “the structural design was defective and requires remediation”. Again, it was not in issue that the female plaintiff had an owner-builder permit issued pursuant to s 103 of the Queensland Building and Construction Commission Act 1991 in accordance with requirements under the Queensland Building Services Authority Act 1991 (“QBSA Act”) – as it was then named. No point was taken by either the defendant or the third party that the only relevant documentary evidence - exhibited to the affidavit of Brianna Adele Edwards (Exhibit 3) - revealed that that permit was “approved” from 2 July 2009, with a “PERMIT ISSUE DATE” of the same day.
- [3]On the first day of trial, pursuant to an application made by the third party, I made orders including: that the third party have leave to defend the plaintiffs’ claim against the defendant; and that the evidence in the proceeding between the plaintiff and the defendant be evidence in the proceeding between the defendant and the third party. Despite the third party contesting the defendant’s liability to the plaintiff, the defendant has conceded, in argument, that the only remaining issue between the plaintiffs and it “is the amount which should be awarded to the plaintiffs”: see paragraph 2 of the defendant’s Outline of Argument (in respect of the plaintiffs’ claim).
- [4]Despite the orders I made concerning the third party’s position with respect to the plaintiff, is it open to give judgment for the plaintiffs against the defendant while simultaneously denying to the defendant the right to recover any part of that judgment against the third party because of the issues raised between the third party and the plaintiff? Other issues arising between the defendant and the third party are numerous and involve a consideration, amongst other things, of what conduct, if any, was prohibited and, if so, with what legal consequences, by the operation of s 42 of the QBSA Act (Reprint 9).
Plaintiffs’ claim against defendant
- [5]In the third party’s Outline of Argument the third party stated that both it and the defendant have conceded that the plaintiffs are entitled to damages in the order of $50,000.00, adding that the only reason that the trial proceeded so far (insofar as the plaintiff is concerned) was that the plaintiffs contended for an entitlement of some nine times that amount. Besides raising some questions about the actual measure of recoverable damages, the third party, when dealing with the effect on the plaintiffs’ claim of the provisions of the QBSA Act has submitted that:-
- (a)if the female plaintiff was an unlicensed builder, the plaintiffs are unable to enforce the terms of any contract between them and the defendant; and
- (b)accordingly, no damages are recoverable pursuant to any breach of contract; and
- (c)as a matter of public policy, an entitlement to damages in negligence does not accrue when the loss suffered is as a direct result of the unlawful conduct by the claimant; and
- (d)no damages should be awarded.
But, as I have just noted, (a) is no longer in issue.
- [6]Because the defendant and the third party have taken quite different stances with respect to the defendant’s liability to the plaintiffs, it is necessary to examine the terms of the orders that I made on 10 March 2014 concerning the third party’s participation in the trial. The orders were made on the basis of the interpretation by the Court of Appeal in Coote v Richards [2001] 2 Qd R 20 of rr 203 and 204 of the Uniform Civil Procedure Rules 1999 (“UCPR”). It was held by Thomas JA, with whom McMurdo P and Ambrose J agreed, that this “conventional formulation” has the consequence that “all parties are bound by the result of the issues that the third party contests … (being) one of the objects of such an order being made” (emphasis added): at 21.
- [7]Because of that binding appellate authority, while I will move to consider the extent of quantum that should be awarded on the defendant’s concession that there are “no other issues” between the plaintiffs and the defendant apart from quantum, I reserve for determination, finally, what the effect of the terms of the third party’s leave to defend the plaintiffs’ claim may have.
Quantum of plaintiffs’ claim
- [8]It is an unfortunate aspect of this case that the plaintiffs, at trial, were self-represented. The plaintiffs’ solicitors were granted leave to withdraw by this court on 17 December 2013. By Notice filed 28 January 2014 the plaintiffs notified the court and the parties that they were acting in person, despite the fact that that notice itself simply referred to the female plaintiff and was simply signed by her. The reason I so conclude is that the male plaintiff himself attended at trial and in no way dissented from any course undertaken by his mother, having indicating that he was also self-represented.
- [9]One consequence of the self-representation was that, even though the solicitors for the plaintiffs were not granted leave to withdraw until 17 December 2013, the female plaintiff herself, pursuant to orders that I made on 28 October 2013 (at which time the female plaintiff was in court), filed documents under her own name and hand. The third order I made that day was that the plaintiffs serve upon the third party copies of certain documents requested by the third party, by 8 November 2013. That order expressly dealt with copies of documents concerning quantum. Furthermore, an order was made concerning disclosure generally: see the fifth order made. Subsequent to the plaintiffs acting in person (namely, on 30 January 2014), I made orders of which the first order varied that date of 8 November 2013 to 14 February 2014. The plaintiffs did not comply with that particular order concerning disclosure which I made on 30 January 2014. The document which was filed by the female plaintiff in person (and signed by her) was a document filed on 7 November 2013. One of the sections was headed “List of Documents”. It is indisputable that that list did not contain any document dealing with quantum (at least with respect to the quantum of damages pleaded in paragraph 79 of the Amended Statement of Claim filed 26 September 2013).
- [10]At the time the trial began, despite both the orders of 28 October 2013 and 30 January 2014, the plaintiff had still not disclosed the relevant quantum documents. At the beginning of the trial I explained to the female plaintiff, who elected to be the only witness in the plaintiffs’ case, that the evidence would have to come from her and, if necessary, from her son and from any other witnesses whom she might wish to call. When the female plaintiff began her evidence, she was asked by me about what she wanted to tell the Court about what was the cost to her “in personal terms and in monetary terms”. She referred to an accountant’s “cost of outlays”. When asked about that, she stated that he had “done the accounts up by the receipts, outlays and expenditures” based upon the “original receipts”. It was at this point that the disclosure point arose. I then explained to the female plaintiff that the UCPR required all parties, even self-represented ones, to comply with the handing over of documents by way of disclosure. I explained to her that orders had been made [referable to r 202] and that she had a duty to make such disclosure. I also explained to her that a consequence of her non-disclosure would be that, at trial, the non-disclosing party could not tender the document, or adduce evidence of its contents, without the court’s leave [referable to r 225]. The possibility of adjourning the trial at her own cost was raised with her. She responded that plaintiffs would “let the money go then”.
- [11]Accordingly, as contended for by the third party, there is no single or accumulated sum to which paragraph 79 of the Amended Statement of Claim speaks which has any support in any evidence led at trial. It ought to be remarked that some of the heads of damages sought by the plaintiffs are covered by the sums which are conceded, by both the defendant and the third party, as proper sums for this Court to take into account. Those concessions, earlier referred to - as identified in the Joint Expert Report (Exhibit 2), together with the two reports of Lindsay Reid dated 7 August 2013 and 14 August 2000 respectively (Exhibits 10 and 11), and along with the report of Flavio Costanzo, a quantity surveyor, dated 18 September 2013 (Exhibit 9) - clearly show that the cost to rectify the acknowledged defects in the plaintiffs’ kit home would be $49,137.06 and that a further amount of $4,500.00 would still need to be incurred for costs with respect to necessary certification and other incidentals. In total, such undisputed quantum is $53,657.06. There was no need to investigate whether the pleaded claim by the plaintiffs for demolition and rebuilding could be allowed since all the uncontested evidence showed that the joint experts’ report (Exhibit 2) was to the effect that the reasonable course to follow was to have undertaken the agreed rectification works only: see Bellgrove v Eldridge (1954) 90 CLR 613 at 617-619; and Coshott v Fewings Joinery P/L [1996] NSWCA 122 at page 9.
- [12]The Amended Defence filed by the defendant did not make any response pleading at all to paragraphs 77, 78, 79, 80 and 81 of the Amended Statement of Claim (which was filed on 26 September 2013 and, therefore, some four months later than the filing of the Amended Defence on 10 May 2013). On its face, that would mean, at least between the plaintiffs and the defendant, r 166(1) of the UCPR would have the effect that the allegations of fact made in those paragraphs are “taken to be admitted” by the defendant. Of course, the complication in this case arises from the fact that all those paragraphs were put in issue by the third party in its Second Further Amended Defence. Since the order that I made on 10 March 2014 permitted the third party to “defend” the plaintiffs’ claim against the defendant, it raises starkly the question posed earlier about the effect of those orders.
- [13]Although the High Court decision in Helicopter Sales Pty Ltd v Rotor-Work P/L (1974) 132 CLR 1 focussed its attention on the question of whether a third party who is given leave to defend a plaintiff’s action, and who does so, is bound by the result of the issues which that third party contests - and not whether the defendant in such a circumstance is also bound by the result of the contest between the plaintiff and the third party – principle and logic must surely dictate that, where such leave is given to a third party, there can be no different outcome between a plaintiff and a defendant than one dictated by the way that the third party is entitled to contest the issues raised in so defending the plaintiffs’ claim against the defendant. In the High Court case it was clear that, although the third party, only, appealed, the court was of the opinion that judgment should have been given for the defendant in the action brought by the plaintiff with a consequence that there should have been judgment for the third party on the defendant’s third party claim: see, for instance, Mason J (as he then was) at 15.
- [14]As I earlier noted with respect to Coote, it was held there that all parties were to be bound by the result of the issues that the third party contested.
- [15]Accordingly, I am of the opinion that there is no choice in a proceeding such as this (where such orders as those referred to have been made) but to determine that the decision reached as between the plaintiffs and the defendant rests upon those issues which result from the totality of the contest between the plaintiffs on the one hand and the defendant and the third party on the other.
- [16]Thus, in such totality, with respect to most of the allegations in paragraphs 79 and 81 of the Amended Statement of Claim, they had not been admitted and, thus, where there was no evidence led by the plaintiffs about the costs which are pleaded in those particular paragraphs of the Amended Statement of Claim, they cannot be the subject of any award, apart from express concessions.
- [17]But that does not mean that I cannot make a decision when evidence is examinable concerning damages claimed for “disappointment, loss of enjoyment and mental distress suffered by” the plaintiffs: see paragraphs 79(g) and 81(e). I will move, now, to consider such damages, including whether such damages here are more circumscribed.
Compensation for disappointment and distress
- [18]Despite statements made in decisions prior to Baltic Shipping Co v Dillon (1992-1993) 176 CLR 344 – in cases such as Falko v James McEwan & Co P/L [1977] VR 447 – to the effect that damages for breach of an ordinary commercial contract are “limited to pecuniary loss” (see Falko at 453), it is to the High Court to which recourse must be had for ruling principle.
- [19]In Baltic Shipping Co, the combined judgments of Mason CJ, Toohey and Gaudron JJ, on one part, and of McHugh J, on the other, accepted that, besides those contracts where the object, or implied term, is one to provide enjoyment, relaxation or freedom from molestation, such damages for disappointment and distress are recoverable where there is physical inconvenience which has been caused by the breach. Mason CJ specifically referred to distinctions drawn between commercial and non-commercial contracts, stating that it was an “artificial expedient”: at 365. With respect to “physical inconvenience”, he held that an award for disappointment and distress could well be “consequential” upon it: at 366. Toohey and Gaudron JJ added little, if anything, to the remarks on this issue addressed by Mason CJ. As for McHugh J, with respect to the basis of physical inconvenience, he stated that damages for distress or disappointment are recoverable in an action for breach of contract “if it is consequent upon the suffering of physical injury or physical inconvenience”: at 405.
- [20]Although the plaintiffs gave little evidence at all, it is clear that the amount of $49,137.06 – which neither the defendant nor the third party put in contest – was at least in part constituted by the hire of a secure container to house “current contents of residence” over a four week period, by the delivery of those containers and by the removal costs (involving two trips) and by the labour to carefully remove all contents from the residence and to store them on site during remedial works and to reinstate them on completion.
- [21]It is, as well, obvious from the material which became evidence in the case that there was distress on the part of both plaintiffs about what occurred. Even without explicit evidence, given the nature of the experts’ reports which were in evidence, it is inconceivable that some disappointment and distress would not flow from such “physical inconvenience” which would be undoubtedly “caused” by the admitted breaches.
- [22]The concern is, of course, without any direct evidence from the plaintiffs themselves, what sum should be allowed to each for this head of damage?
- [23]Given that there should be no difference whether the damages are for breach of contract or for negligence, a sum in the order of $5,000.00 for the female plaintiff and a lesser sum, $2,500.00, for the male plaintiff should be allowed, accounting for the much more active role played by the female plaintiff and thus the more affected by the dislocation.
- [24]Even here, though, there is a further complication.
- [25]Clause 26 of the undated contract entered into in 2009 between the defendant and the plaintiffs stated that:
“EXCEPT AS SET OUT IN THIS CONTRACT, IN NO EVENT SHALL STONE HOMES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS OR ANY BUSINESS INTERRUPTION) EVEN IF STONE HOMES OR ANY STONE HOMES’S REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.”
- [26]Although the defendant declined to rely upon that provision, the third party raised it in its submissions at the end of the trial. It is a legal question, particularly where no evidence was led of surrounding circumstances potentially affecting any discernible ambiguity.
- [27]Clause 26 is a limitation of liability clause. With such clauses, the person raising the limitation bears the onus of showing that, correctly interpreted, it applies to the particular circumstances: see Gardiner v Agricultural and Rural Finance P/L [2007] NSWCA 235 at [214].
- [28]The analysis of Baltic Shipping Co shows that damages for disappointment and distress in a case such as this, based as they are upon physical inconvenience, are “consequential” upon the physical inconvenience. But that does not mean that they fall within the chosen words “special, incidental, indirect or consequential”. Those latter words are more apt to describe damages which are not directly concerned with the breach itself: see the conclusion of Brennan J that, if the “disappointment and distress” is an inevitable and direct result of the breach, it is proper to hold that it flows naturally from the breach (at 372).
- [29]Thus, I hold that the effect of Clause 26 is not to exclude the plaintiffs from maintaining a claim for damages for disappointment and distress consequential upon the physical inconvenience where such directly results from the breaches which are not in contest.
QBSA and “building work”
- [30]Schedule 2, the Dictionary, of the QBSA Act, pursuant to s 4 of that Act, defined “building work”.
- [31]Relevantly to the present case, those which are potentially applicable are (f) and (fa) by which:
- it meant “the preparation of plans or specifications for the performance of building work”; or
- it meant “contract administration carried out by a person in relation to the construction of a building designed by the person”.
- [32]Further, the Dictionary defined “carry out” relevantly to mean:
- (a)carry out the work personally;
- (b)directly or indirectly cause the work to be carried out; or
- (c)provide building work services for the work.
- [33]In turn, the Dictionary defined “building work services” to mean:
- (a)administration services;
- (b)advisory services;
- (c)management services; or
- (d)supervisory services – including one or more of them.
- [34]In further elaboration, the Dictionary defined “administration services” relevantly to include, by (d) and (f):
o“arranging for certificates, including certificates from a local government, to be issued”; and
o“other administration for the work usually carried out by a licensed contractor in the course of the contractor’s business”.
- [35]Insofar as “advisory services” and “management services” are concerned, the definitions were, as contended for by the third party, ones which had relevantly conventional meanings.
- [36]While the Dictionary defined “building” to include any fixed structure, “design work” was defined by the Dictionary to mean, perhaps wider than convention might suggest:
- (a)“the preparation of plans or specifications for building work”; or
- (b)“professional advice in relation to building work”.
- [37]Turning, then, to the Contract between the plaintiffs and the defendant, the only evidence – discussed below – is consistent with the execution of the Contract in New South Wales. The Contract Price of $70,000.00 was stated to be $66,500.00 for “supply of building kit components” and $3,500.00 for “standard plans”. There is no doubt: that the relevant “location” address was that in Burnett Heads; and that Recital C stated that “the kit home” was “to be erected at that Location”. By Clause 1, all documents listed in the Schedule, including all plans and specifications for the kit home to be supplied under the Contract, were taken to form part of the Contract.
- [38]With respect to the plans and specifications to be supplied (pursuant to Clause 1), there was nothing for which the Contract expressly provided with respect to that supply. Clause 10 did not, either alone or in conjunction with Clauses 11 to 14 (inclusive), refer to anything other than “delivery” of the “kit home”. An examination of the Schedule (relevant to the “documents” taken to form part of the Contract) shows: a “(S)ufficient description of the kit home to which the Contract relates” as including the “Dimensions”, a “List of plans and specifications”, and “Blue Ink Engineer Certified plans”. Although there is reference in Exhibit 4 to an enclosure of “2 x sets of engineering plans” and “1 x instruction manual”, it is clear from that document itself that such was requested at a Tribunal meeting on 1 April 2010, long after the Contract was entered into.
- [39]Since no party led any evidence about the “supply” of what Clause 27.1 described as “the Intellectual Property” (referring to all “plans, drawings and specifications”), considering that it is not in contest that the plaintiffs went to New South Wales to where the defendant conducted its business, the only inference that can, reasonably, on balance, be drawn is that the Contract was signed by both parties in New South Wales and that the Intellectual Property was prepared in that State also. But there is no evidence about who did the preparation despite much disputation in the pleadings. To the extent that the third party tendered 2 documents (Exhibits 10 and 11), being the reports of Reid Consulting Engineers Pty Ltd of 7 and 14 August 2013, they “identify” – inferentially from instructions of the third party’s solicitors – that the “original building and engineering design plans were prepared by” the third party (emphasis added). Considering that the second report qualifies that by stating that it was not known who “produced” those drawings, I do not, therefore, find that as a fact. Conversely, it is not consistent with any available inference that the actual “preparation” was that of the defendant itself. As for the pleadings, while the third party made “new” allegations on this subject both in its defence to the plaintiffs’ claim and in its defence to the defendant’s claim (including purported “admissions” which actually contained fresh allegations as part of such admissions), those allegations have, substantially, been deemed by the UCPR to be the subject of “non-admissions”; and no evidence was led at trial by the defendant to establish them (despite the restrictions on the non-admitting party leading evidence to contradict them). Importantly, the third party also led no evidence of what its involvement was, if any, in any preparation. Those Clauses in the Contract dealing with jurisdiction and the governing law are not relevant for present purposes - considering that a construction of the Contract according to the law of New South Wales should lead to no different outcome from a construction according to the laws of Queensland, particularly where no party has contended to the contrary.
- [40]Furthermore, no party urged that the severability clause, Clause 28.3, has any work to do in the present circumstances.
- [41]In Dart Holdings P/L v Total Concept Group P/L & Ors [2012] QSC 158, McMurdo J considered, amongst others, the issue of whether the scope of work under certain licences covered the work performed. In referring to the entitlement of holders of, respectively, a glazing licence and a carpentry licence, he noted that the scope of work for the former gave an entitlement not only to “install” certain items but to “fabricate them”, whereas, with the latter, the entitlement was to “construct” certain things but not to “construct or fabricate” other things, such as windows or other pieces of glazing: at [25]. The third party here contended that, therefore, that distinction meant that fabrication by itself amounted to “building work”. In order to bolster that argument reference was made to Part 37 of the Queensland Building Services Authority Regulation 2003 (“QBSA Regulation”) which, when dealing with the licence class of “structural metal fabrication and erection” referred to the scope of work there as including “prepar(ing), fabricat(ing) and erect(ing)” structural and non-structural components.
- [42]I find it difficult to extract from those particular references the conclusion that mere fabrication amounts to “building work”, especially where that is specifically defined in the Dictionary. Of course, it is not difficult to understand why a licence class covering structural metal fabrication “and erection” does come within the rubric of “building work”.
- [43]A supplementary contention by the third party is that, since contravention of s 42 of the QBSA Act covers, by resort to the definition of “carry out”, building work which is “indirectly” caused to be carried out, it must be accepted to be so in this case because of that expansive definition of “carry out”. Any reference to Byers v Doretea P/L (1986) 69 ALR 715 simply identifies an example of that obvious conclusion. There, Pincus J held that the intention was that the nominated legal entity “would fulfil the ordinary role of head contractor, but merely as agent”: at 729. In those circumstances, he went on to hold that a provision which referred to a person causing the performance of building construction to be deemed to have performed such construction, unless it was shown that the building construction is or was performed by another under a contract other than a contract of service made by such person, meant that the nominated legal entity did cause the performance and was not taken outside the ambit of the provision by the circumstance that, as between itself and another, it acted merely as an agent: at 729. The inapplicable nature of that case to this is illustrated by the conclusion that, putting his interpretation in more practical terms, Pincus J stated that the provision concerning deeming, through the aspect of “causing”, catches a company performing what would ordinarily be regarded as the functions of a head contractor, even if all the sub‑contracts it made were made as agent for the owner: also at 729. Here, the female plaintiff is conceded to have performed the functions of an owner-builder.
- [44]Thus, although the Contract and the other evidence – such as it is – shows that the prefabricated building components were “supplied” by the defendant to the plaintiffs in Queensland, there is no evidence that the Intellectual Property was other than agreed to be “supplied” by the defendant to the plaintiffs in Queensland. The female plaintiff denied that she had ever received the Instruction Manual of the defendant – and no evidence was led by any other party that she had.
- [45]Thus, for the purposes of determining the requirement for a licence to carry out building work in Queensland, the evidentiary basis is simply that the materials constituting the building kit components were supplied by the defendant to the plaintiffs in Queensland, that the Intellectual Property was, at least, only caused to be prepared and then supplied by the defendant to the plaintiffs in Queensland, and that there is no evidence that any written instructions (on how to build the building) were supplied by the defendant to the plaintiffs in Queensland.
- [46]Hence, in determining what is “carrying out” building work, only the supply of the Intellectual Property, on the evidence, comes within the relevant definitions; and then only as a result of such supply being made after having caused its preparation: that is, the plaintiffs and the defendant did not contract to the effect that the defendant would “prepare” relevant plans.
- [47]Accordingly, if the QBSA Act has had extra-territorial effect, then the defendant would have been required to obtain a relevant licence for causing the preparation of plans and specifications for the performance of the eventual building work which was conducted at Burnett Heads – it not being the contention of any party that the actual work done in Queensland at Burnett Heads in the construction of the kit home was other than the carrying out of building work which was done by licensed contractors.
- [48]The other component in determining the necessity, or otherwise, for having a licence is whether or not the female plaintiff was a “permittee” under an owner-builder permit. In the case it has not been, as referred to above, disputed that she was such a permittee.
Extra-territoriality and QBSA Act
- [49]The Queensland Court of Appeal in Barkworth v Sidhu [2011] 1 Qd R 419 considered the question of extra-territoriality when concerned with an Act which was part of a national scheme of legislation, being the Trade Measurement Act 1990. The offence charged was one which alleged that the person who packed the article (being a packet of blueberries) was guilty of the offence of packing a “short measure”. The person charged had caused the particular berries to be packed in punnets in New South Wales and then sold them to a company in New South Wales which, in turn, sold them to a Brisbane market agent who on-sold them to the owner of a stall at the Brisbane Markets. Fraser JA, with whom Keane JA and Atkinson J agreed, noted that the question for decision was whether the offence was committed when a short measure in a pre-packed article occurred in Queensland but where the person charged packed that article out of Queensland. Fraser JA noted the strong rebuttable presumption of statutory interpretation that the legislature did not intend statutes creating offences to extend to conduct outside the State; but further noted that it may be overridden by a particular statute. He also noted that a similar presumption may be displaced by the expression of a contrary intention in the statute concerned, referring to s 35 of the Acts Interpretation Act 1954. Fraser JA accepted that the presumption applied, such that there must be a local element for the offence to have been committed in Queensland, expressing the opinion that where there is a short measure in this State it is not necessary to prove also that the person charged packed the article in Queensland: at 424-425 [22]. The construction so determined was suggested by the text and structure of the provision and by reference to s 14A of the Acts Interpretation Act, with Fraser JA referring to the Act being a “consumer protection measure”, with the mischief being one which intended “to ameliorate … the presence of short measures in articles which would be offered for sale on the basis of representations as to their weight”: at 425 [23]-[24].
- [50]With respect to Barkworth, the part which was contended by the third party to be particularly instructive for this case was a statement by Fraser JA that the provision created a “result–crime”: that is to say, it punished the harmful consequences in Queensland for conduct wherever it occurred: at 426 [25]. Coming to that conclusion, Fraser JA had no reason to doubt that the occurrence in Queensland of the existence of a short measure fulfilled the undermanding constitutional requirement that there be a connection between the offence and the State, referring to Union Steamship Co of Australia P/L v King (1988) 166 CLR 1 at 14: at 426 [25].
- [51]While I accept the third party’s contention that the carrying out of building work was also regulated in New South Wales [by reference to the Home Building Act 1989 (NSW)], it was not part of a national scheme such as that which was expressly referred to by Fraser JA. But that, of itself, does not conclude the issue about extra-territoriality.
- [52]It is accepted that an object of the QBSA Act was to regulate the building industry to ensure that it maintained proper standards: see McNab Constructions Aust P/L v QBSA [2010] QCA 380 at [5]. The real distinction, though, between this case and Barkworth was that the only potentiality for requiring a licence for this building work done by the defendant was that concerning the preparation of the Intellectual Property. There is no doubt that there was evidence of such preparation (in the expanded meaning of causing the “carrying out” of such building work). Also, there is no doubt that the Intellectual Property which was “supplied” pursuant to the Contract envisaged actual use by another, or others, of that Intellectual Property in Queensland. It is noted that the phrase “for the performance” – not used in the definition of “design work” – appears to have been used in the sense of having a real connection with the (real) “building work” (which is, here, incontestably Queensland-based). But the section in question [namely, s 42(1) of the QBSA Act] referred to such work being carried out, or undertaken to be carried out, in circumstances where the local element can only be, relevantly, the causing of the preparation. Here, the essence of the offence which s 42(1) creates, by way of s 42(9), does not contain the element that was necessary in Barkworth (namely, the then existence of something of relevance within Queensland at the time the act of carrying out, or undertaking the carrying out, occurred). Kay’s Leasing Corp P/L v Fletcher (1964) 116 CLR 124, where the hire-purchase contract was entered into in Victoria for New South Wales hirers who were known to be leasing the goods in New South Wales, is partially instructive in its holding that the New South Wales legislation had no application where the agreement was entered into outside that State: at 134.
- [53]As an alternative, the third party contended that s 12(3) of the Criminal Code (Queensland) would in any event provide a solution. That was also considered in Barkworth – although Fraser JA stated that he preferred “not to express a concluded view on that topic”, expressing only his “tentative opinion”: at 426 [27]. His conclusion focused on the word “event”, holding that such an event as a short measure in Queensland was covered by that provision (though it might be only a “simple offence”), concluding also that the actual conduct done out of Queensland was a “cause of that event”: at 426-427 [28]-[30]. That particular analysis, also, is distinguishable where, as here, I would conclude that the relevant “event” is the causing of the carrying out (so far as is relevant to this case) of the “preparation of plans or specifications for the performance of building work”. While the “performance” must, obviously, occur in Queensland, its future existence does not provide the territorial basis for legitimacy because, while it connects the element, or event, by that way to the State, it does not cause the event. Thus, I further conclude that no relevant “building work” was carried out [for the purposes of determining the committing of an offence contrary to s 42(9) of the QBSA Act]. The QBSA Act could easily have been drafted to tie the preparation to that occurring “in Queensland or elsewhere”.
- [54]It is, therefore, not necessary for me to consider the issue of whether the relevant authorities on the prohibition of suing for remuneration under s 42(3) of the QBSA Act have any wider application to a cause of action which does not seek any entitlement to any monetary or other “consideration” for doing so. That has the consequence that Theden v Nominal Defendant [2008] 2 Qd R 367 becomes of little moment since it dealt with remuneration, and not damages, and in a context where a statutory provision was not given a wider interpretation than the language of the statute required because, if not, it was apt to defeat that right to remuneration (where the right was not dependant on any provision of the statute): per Keane JA at 379 [26]. But because the issue has been raised and because it may become an issue to be considered later, I will pay it some mind.
Prohibition under s 42 of QBSA Act
- [55]McMurdo J in Australian Timber & Trusses P/L v T&M Buckley P/L [2012] QSC 110 closely examined the effect of s 42 of the QBSA Act.
- [56]McMurdo J, there, considered the effect of that provision upon a plaintiff’s entitlement to be paid for goods which the plaintiff delivered, as well as an entitlement to damages for breach of contract. The circumstances of the case were that a layout plan was required by each contract, being a plan for the performance of building work. He held that the term “building work” is not defined to include the “design” of a building or part of it: at [29]. The plan was, in fact, prepared by the plaintiff. It was, therefore, held that the plaintiff’s production of that layout plan constituted “building work” as defined (and as that term was used in s 42): at [33]. As I examined earlier, in the Contract in this case, Clause 1 referred to relevant Intellectual Property “to be supplied” under the Contract. Other parts that did refer to “preparation” (see, for instance, Clauses 4, 7 and 23) did not expressly impose on the defendant the obligation to undertake the preparation. Since I accept McMurdo J’s analysis, the conclusion that must, therefore, be reached here must accord with that reached there, namely, that the Contract did not require the defendant to “undertake to carry out (unlicensed) building work” because it did not require “preparation” by the defendant as well as supply by it. As I have also examined, there was no evidence led, despite contested pleadings on the question, of who “prepared” the plans, though it is, on balance, reasonable to infer that the defendant “caused” the eventual preparation as it “supplied” them. But, as concluded by McMurdo J, such a position is different from that in Sutton v Zullo Enterprises P/L [2000] 2 Qd R 196. This is because in Australian Timber & Trusses P/L the mode of performance of the contract occurred in a manner which was illegal but that did not make the contract one which was itself forbidden by the relevant statute: at [34]. The consequence that the making of the contract was not illegal was that the plaintiff could enforce the contract so far as it was an entitlement to be paid for goods, as long as it did not do so in a way which relied upon the subsequent illegal act: at [36].
- [57]Also in Australian Timber & Trusses P/L, McMurdo J later discussed the impact, or otherwise, of s 42 concerning damages for breach of contract. Because he held that the plaintiff did not contravene s 42 by entering into the contract, it did not breach it by manufacturing the frames and trusses: at [46]. It was further held that, since the plaintiff was not seeking any monetary or other consideration for “preparing the layout plan”, simply seeking compensation because it was deprived of the other party’s performance of the contract, the plaintiff was not making a claim which was inconsistent with s 42: at [47]. So much occurred in this case as well.
- [58]Since the resolution of that particular issue does not involve consideration of what Sutton held to be a prohibited contract, it is unnecessary to consider that aspect. But, again, because it has been raised and extensively argued, I will make some observations with respect to it.
Prohibited contracts under the QBSA Act
- [59]As has been extensively canvassed, and as Australian Timber & Trusses P/L demonstrates, Sutton dealt with two prohibitions. The first was that a person must not “undertake” to carry out building work unless appropriately licensed; and the second was that that person must not carry out building work unless appropriately licensed. The first prohibition was directed at an element in the formation, or making of, the contract requiring the conclusion that the contract should be unenforceable. As to the second, performance of that work is that which is to be taken as prohibited.
- [60]In Sutton, McPherson JA (with whom Jones J expressly agreed) held that whether the other party to a contract which is the subject of an “express legislative embargo on its being made at all” is disabled from enforcing it was “not something that calls for decision now, and it may be left for future consideration”: at 202-203 [4]. As identified by McPherson JA, the prohibition has the consequence of unenforceability “at least at the instance of … the person who was not appropriately licensed”: at 203 [6].
- [61]There was no case presented for my consideration which has clearly answered the question left unresolved in Sutton. Since, as here, the female plaintiff did have the relevant permit, she would not have been the subject of the prohibition in s 42(1) of the QBSA Act.
- [62]Insofar as it concerns the defendant, even if I were to have held that it should have been licensed under the QBSA Act, there is nothing in the plaintiffs’ action against it which seeks to recover any “consideration” pursuant to the Contract between the plaintiffs and the defendant. As clearly indicated by McPherson JA in Sutton, the question about an innocent party being precluded from enforcing such an agreement “may in the end depend on the weight to be given to the fact that here the prohibition in s 42(1) is directed only to the person ‘undertaking’ to carry out the building work”: at 202-203 [4].
- [63]By whatever route is taken, I conclude that the ability of the plaintiffs to sue the defendant for breaches of contract is not inhibited by any breach that might be found to have been committed by the defendant of the QBSA Act.
- [64]If such an outcome is the proper conclusion, it would be strange indeed if the defendant was not able to seek some sort of contribution, or finding of proportionate liability, against the third party who has provided professional services of an engineering kind and where that party, apart from any statutory prohibition, conceded that the structural design to which it had a major input was defective and required remediation. Guided by the discussion of illegality in TP Rich Investments P/L v Calderon [1964] NSWR 709, I determine that the oral agreement between the defendant and third party was not made with the “intention” of either party to make use of the subject matter for an unlawful purpose. Therefore, it is not unenforceable. It is important to note that the third party’s “engineering” work – whatever it was - was excluded from the definitions of “building work” by s 5 of the QBSA Regulation.
- [65]Furthermore, this case can be distinguished from that discussed by the Court of Appeal in Burmic P/L v Goldview P/L [2003] 2 Qd R 477. There, the contract was held to be one to do an act prohibited by the local law (namely, to exhibit an advertisement without the local government’s prior approval). In such a case, as McPherson JA held, even though the claim was to “enforce” the contract “by recovering damages for its breach rather than for a debt arising under it”, it still engendered the conclusion that neither party might sue to enforce it: at 485-486 [23].
The effect of s 44E of QBSA Act
- [66]Section 44E(a) states that the permit that an owner–builder obtains is subject to the condition that the permitee must comply with the QBSA Act. Section 44E(c) states that the permit is also subject to the condition that, if the permitee engages persons to carry out building work, the persons must be licensed contractors for the work.
- [67]The third party has alleged that the female plaintiff is in breach of those conditions, especially where it concerns entering into the contract, with her son, for those matters that are the subject of the Contract between the plaintiffs and the defendant.
- [68]Since I have found that the defendant did not need to be a licensed contractor, there is nothing else which is contended for which shows non-compliance by the female plaintiff, as permitee.
- [69]Nevertheless, were I to be wrong about that, it is necessary to consider the circumstance of potential breach of s 44E(c).
- [70]An immediate contrast with s 42(1) is that the provision does not state that a person who contravenes it commits an offence. That was held to be important in Sutton, with McPherson JA concluding that “it provides additional support for such a legislative intention” (namely, that the contract should be unenforceable): at 202-203 [4]. More importantly, the provision does not prohibit either the carrying out, or the prior undertaking to do so, of building work which were the foundation pillars of the decision made in Sutton.
- [71]Nothing so determined can, necessarily, affect any contract whereby a person holding an owner-builder permit engages unlicensed contractors to carry out building work. The effect of that is determined by how far s 42(1) has application in the particular case. But it does not, of itself, do other than give rise to a non-compliance with a relevant condition of the permit.
Unenforceability in tort
- [72]Since I have found that there is no prohibition concerning the various contracts between the plaintiffs and the defendant and the defendant and of the third party, respectively, there is no specific need to reconsider this issue.
- [73]Nevertheless, as it has been raised, I will deal with it, albeit briefly.
- [74]In Miller v Miller (2011) 242 CLR 446, the plurality remarked that there was evident force in the proposition that it may be that the same methods of statutory construction are engaged in determining whether the doing of an act forbidden by statute disqualifies the offender for recovery for negligence as are engaged when deciding whether a penal statute gives a private remedy in damages for breach of the duty it imposes: at 459 [28]. But the plurality, in the same paragraph, went on to remark that it is then necessary to observe “the difficulties and dangers that attend that task”. As later expanded on, not only is there the difficulty that “the legislature has in fact expressed no intention upon the subject”, the task is one that requires consideration of the whole range of circumstances relevant upon a question of statutory interpretation, including the nature, scope and terms of the statute, the nature of the evil against which it is directed, the nature of the conduct prescribed and the pre-existing state of the law: at 459-460 [29].
- [75]What was, of course, being directly scrutinised in Miller was the pursuit of a joint illegal enterprise. On any analysis here, it can only be concluded, as a matter of fact, that any contract entered into by the plaintiffs which might have been the subject of some statutory prohibition was not the result of the plaintiffs, or one of them, or of the defendant, deliberately or knowingly engaging in the performance of a joint criminal venture during which negligence has been committed: cf Miller at 479 [91]. Since the third party raised the point, it can hardly be the case that it is contended to apply to its contract with the defendant.
- [76]If it were to become a point to be decided, neither the services procured by the plaintiffs from the defendant nor those procured by the defendant from the third party were plainly in furtherance of, or in the pursuit of, any joint illegal enterprise.
Damages
- [77]Although the plaintiffs have sued both for breach of contract and in tort, this is not a case in which the plaintiffs are able to make any sensible election, considering that they have exhibited no understanding of the legal consequences of such a choice.
- [78]As it happens, the conclusions that I have reached are sufficient to permit them to sue in contract. And it is to that particular area of the law that the concern as to damages that can be awarded should be directed.
- [79]As recently elucidated by the High Court in Tabcorp Holdings Ltd v Bowen Investments P/L (2009) 236 CLR 272 (at 286 [13]), relying upon Parke B in Robinson v Harman (1848) 1 Exch 850 at 855, the party sustaining loss is, so far as money can do it, to be placed in the same position with respect to damages “as if the contract had been performed”. Necessarily, that conclusion does not always mean in as good a “financial” position: see Tabcorp Holdings Ltd at 286 [13]. The last aspect brings into consideration whether the work to be undertaken is a reasonable course to adopt, which itself brings into consideration the so-called “duty to mitigate”. In Knott Investments P/L & Ors v Fulcher & Ors [2014] 1 Qd R 21 it was held that, in determining whether the decision under consideration concerned conduct characterised as acting “reasonably in all the circumstances”, the reasonableness is one which is to be viewed in response to, or as a result of, the wrongful conduct of the other party and therefore is directly relevant to the question of whether the wrongful conduct has caused the loss in question: at [44] per Muir JA. As Muir JA went on to consider, it has been held that the plaintiff is not under “any obligation to do anything other than in the ordinary course of business [to mitigate his loss] … [and that] the plaintiff is not required to sacrifice or risk any of his property or rights”: at [45] referring to cited authority.
- [80]In the case in question, particularly where the only inference open is that the plaintiffs had little by way of available resources or funding, it is likely that any action on their part not to take steps themselves to undertake repairs in order that the kit home comply with the relevant C3 wind classification, even though advised what options might be available by a consultant engineer in May 2010, would not be held to be a failure to act reasonably. There is, for instance, no evidence that any greater cost was incurred in quantifying the remedial works by such an alleged failure. Even more so, while it might be the case that the plaintiffs might not be “innocent” consumers who entered into a contract to produce a “dream home”, there is nothing in the position of the plaintiffs (from a standpoint of the female plaintiff holding a owner-builder permit) which means that a finding of unreasonable conduct on their part should be made because they have relied upon the defendant, or the third party, or both, to take remedial action. It is certainly not a matter in which the damages were not foreseeable within the confines of that expression when seen in a contractual context.
Proportionate liability; or contribution only?
- [81]All parties have conceded that it matters not whether any proportionate liability is to be determined by the provisions of the Civil Liability Act 2002 (New South Wales) or the Civil Liability Act 2003 (“CLA”) (Queensland), because both are to identical effect, in so far as this particular case at least is concerned. So much, anyway, appears to the conclusion by the Queensland Court of Appeal in Meandarra Aerial Spraying P/L v GEJ & MA Geldard P/L [2013] 1 Qd R 319: at 346 [60].
- [82]What Meandarra Aerial Spraying P/L presents, nevertheless, is a concern because of the way in which a claim for proportionate liability has been pleaded.
- [83]In a case considered in Meandarra Aerial Spraying P/L, namely, Ucak v Avante Developments [2007] NSWSC 367, it was held that a party who pleaded similarly to the way in which the third party has pleaded in this case (that is, to assert a conclusion without the material facts upon which the conclusion depends) had taken a course which was not permissible: at [31]-[37]. A failure to do so, as occurred in Ucak, can be that the paragraph alleging proportionate liability is liable to be struck out: at [38].
- [84]As set out in Ucak, the necessary elements that a defendant must plead are: the existence of a particular person; the occurrence of an act or omission by that particular person; and a causal connection between that occurrence and the loss that is the subject of the claim: at [35]. Nevertheless, both Ucak and Meandarra were concerned with a defendant raising the statutory remedy. It is tolerably clear from the CLA that the first inquiry is whether the plaintiff has triggered the application of the provisions: see ss 32, 32A, and 32B. An examination by Jackson J in Hobbs Haulage P/L v Zupps Southside P/L & Anor [2013] QSC 319 shows that the structure of ss 28, 29, 30 and 31 (leaving aside the later affecting provisions) operates by identifying an “apportionable claim”, so far as s 28(1)(a) is concerned, as “the first step”: at [29]. Here, the plaintiffs raised no “claim to which” Part 2 of Chapter 2 “applies”. Even if it is the preferable interpretation that an “obligation” arises without expressly invoking s 28, s 32(4) provides for such a consequence. But the defendant made no such application to the court – and neither did the third party. Those failures then triggered the applicability of s 32(5). But, again, that provision was not raised. The second inquiry is whether the defendant, in terms of Ucak, has triggered the remedial action. In this case, the defendant raised the CLA but only with respect to a legal entity that no party has submitted was a “concurrent tortfeasor”: see paragraph 15 of the Amended Defence. As first noted in the Introduction, all that the defendant raised in its Third Party Statement of Claim was an indemnity (which has not been pursued) or, alternatively, contribution. The third party, in its Second Further Amended Defence, in defending the defendant’s pleading, raised the CLA both with respect to that identified non-concurrent tortfeasor and to the defendant: see paragraphs 10 and 11.
- [85]There is nothing in Meandarra Aerial Spraying P/L which requires in a case conducted in the manner that I have just described that any finding of proportionate liability be made. As remarked by Jackson J in Hobbs Haulage P/L it is not permissible to interpret the text or structure of the apportionment provisions so as to achieve such a “general aim” as their applicability even where an identifiable – but only potential – claim is not brought by the plaintiff against any existing defendant: at [31]. As a practical matter, if the third party could, despite its inaction, rely upon this remedy, the only consequence could be that the plaintiffs are limited in their recovery against the defendant and that the defendant would not then have any solidary liability to seek to have the third party share. On the pleadings (as just analysed), that would generate manifest unfairness and, therefore, not be a proper interpretation of the provisions by reason of absurdity. Apart from all that, the breach by the third party of the proper pleading requirements would generate such an outcome in these circumstances at least.
- [86]On that approach, I conclude: that proportionate liability cannot be agitated here; and that this case is simply subject to the pre-CLA position of determining contribution claimed against a third party in a proceeding pursuant to solidary liability: see ss 6(c) and 7 of the Law Reform Act 1995 (“LRA”). Although the plaintiffs’ claim has been successful on the contractual basis, since both the defendant and the third party accept that there was imposed on them, by implication, a duty of care concurrent and co-extensive with a duty of care in tort, such a claim in contribution exists. Further, it has not been submitted by either of those parties that damages awardable in tort would be any lower than those conceded, or found, to exist in this contractual breach. As held by McPherson JA in Kim & Anor v Cole & Ors [2002] QCA 176, the term “or otherwise” in s 6(c) of the LRA is apt to include a liability in contract (where a duty of care is concurrent and co-existent with that in tort): at [31]-[34]. Necessarily, the effect of any relevant contractual allocation of responsibility may have upon the outcome could be important – but that has not been suggested here. Thus, from the admissions which have been made, taken together with the concessions that appear in the written and oral submissions, and in light of the evidence (particularly documentary) that has been led in this trial, I will, therefore, move to a consideration of the proportion that the court considers just having regard to the extent of responsibility of each for the damage or loss, as between the defendant and the third party.
- [87]No significant arguments were presented to me about how I should make this apportionment. I bear in mind that the onus is on the defendant having raised a contribution proceeding.
- [88]The relevant principles, directly referable to this context and (incidentally for present purposes) referred to in Meandarra Aerial Spraying P/L (at 348 [62]), are that the apportionment requires reference not only to the relative significance of each person’s acts or omissions in causing the loss or damage but also to a comparison of each person’s culpability (being the degree of departure from the standard of care of the reasonable person). I have also been assisted by the consideration given to the analogously applicable principles (under proportionate liability) in Yates v Mobile Marine Repairs P/L [2007] NSWSC 1463 at [97]-[103].
- [89]Very little by way of evidence was presented to me about how any apportioning of liability should be done in this case. Given the very clear admission that it was an engineering deficiency which led to the failure to specify a C2 wind classification with modifications or a C3 wind classification, the third party bears a significant responsibility for the liability.
- [90]Nevertheless, the defendant’s responsibility was to supply plans and, therefore, should have been astute to determine, on its own part, in what region Burnett Heads was located.
- [91]Given that there is, though, a predominant engineering consideration in the deficiency which has led to the remedial works needing to be performed, the appropriate apportionment of liability should be that the third party bear 75 per cent of the responsibility and the defendant bear 25 per cent of the responsibility.
Summary
- [92]In summary on the claim, the plaintiffs have succeeded against the defendant, although their original quantum sought has been much reduced. Thus, there should be judgment for the plaintiffs against the defendant for $53,657.06, plus $5,000.00 for the female plaintiff and $2,500.00 for the male plaintiff.
- [93]As for interest, although no party addressed me on it, the evidence reveals that the nature of the “damage” to the kit home was obvious as at early May 2010: see the report of the plaintiffs’ engineer dated 7 May 2010. But neither the defendant nor the third party was prepared to fully concede liability until after a recent joint experts’ report was produced. Thus, there is no reason why interest should not flow from that earlier date, particularly given that slow progress by the defendant and third party to acknowledge their underlying liability. Where no other rate was submitted, it is, in these circumstances, proper to calculate interest in accordance with the general provisions of s 58 of the Civil Proceeding Act 2011: see, in particular, s 58(3). Applying Supreme Court Practice Direction No 7/13 as indicative of appropriate rates, the yield is $19,234.96. Because the damage for physical inconvenience have not yet been suffered, no interest has been calculated for such.
- [94]As for costs, the plaintiffs should recover their costs, though the extent of recovery after becoming self-represented is limited in the ways described by Jackson J in Chiropractic Board of Aust v Jamieson [2013] QSC 77. Additionally, I see no reason to “otherwise order” pursuant to r 697(2) of the UCPR. I will, concerning other costs, give leave to file written submissions on them.