Paul Smith & Mary Smith v John Orr - [2007] NSWLC 16 - NSWLC 2001 case summary — Zoe

NSWNSWLC

Paul Smith & Mary Smith v John Orr

[2007] NSWLC 16

Local Court of NSW|2001-01-23|Before: Mr J

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At a glance

Source facts

Court

Local Court of NSW

Decision date

2001-01-23

Before

Mr J

Source

Original judgment source is linked above.

Judgment (122 paragraphs)

[1]

For the reasons to which I will come, I took the view generally that the higher standard was to be preferred. In general terms, I took the view that, while it may be expected that there will always be a few minor defects to be rectified at the end of (or during) a construction project, an accumulation of large and small defects tends to suggest that a builder's overall standard of workmanship is below an acceptable standard. It is not acceptable for a builder to seek to gain a competitive advantage by cutting prices and lowering standards of workmanship. I do not know whether that is what Mr Orr sought to do but much of his work was, in my view, below an acceptable standard. This may have been because of the scarcity of skilled sub-contractors in the Lake Cargelligo region or for some other reason. Whatever it was, he failed to meet his contractual obligations in relation to many of the alleged defects. I now turn to the specific items under consideration. The skirting boards
The plaintiffs' assertion is that a section of skirting board between a wardrobe and a corner of a wall was "not level". Mr Whitton was of the view that the reason for this was that "the wall had not been packed out to allow for the skirting to be level with corner plasterboard fixing steel." He considered that the skirting ought be removed, the wall packed out and the skirting reinstated in a level position. He estimated that the cost of the work would be $120 (in 2001). Mr Rikys gave evidence that he had also seen that the skirting board was out of level and had undertaken the rectification work recommended by Mr Whitton in accordance with the scope of works his company had been provided. That scope of works was based on Mr Whitton's report.

[2]

Parties

Applicant/Plaintiff:

Paul Smith & Mary Smith

Respondent/Defendant:

John Orr

Cases Cited (5)

CITATION: Paul Smith & Mary Smith v John Orr [2007] NSWLC 16 JURISDICTION: Civil PARTIES: Paul & Mary Smith John Orr FILE NUMBER: 80657/06 PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 06/15/2007 MAGISTRATE: Magistrate H Dillon CATCHWORDS: Negligence - Building works - Whether works defective - Whether plaintiff mitigated damages - Building & Construction - Contracts - Whether defendant breached implied terms - Whether work carried out in workmanlike manner - Whether materials supplied fit for purpose - Whether works carried out with due diligence in a reasonable time LEGISLATION CITED: Evans v Balog [1976] 1 NSWLR 36 Hyder Consulting (Aust) Pty Ltd v Wilh Wilhemsen Agency Pty Ltd [2001] NSWCA 313 CASES CITED: Makita v Sprowles [2001] NSWCA 305 Rich v ASIC [2005] NSWCA 233 Sydneywide Distributors Pty Ltd v Red Bull Australia Ltd [2002] FCAFC 157 Ms E. Kennedy (Counsel for Plaintiff) Mills Oakley Lawyers (Solicitors for Plaintiff) REPRESENTATION:

The admissibility of expert evidence is a frequently argued issue in this court and, no doubt, others. Given that the weight to be attached to expert opinions is a key issue in this case, a couple of observations ought be made at this point. First, it was noted by Handley JA in Rich v ASIC [2005] NSWCA 233 (at [13]) that "it is far from clear that [the Makita principles] apply with their full force, or at all, to out-of-court statements by experts in business records even if such statements do have to meet the standard in s.79 [of the Evidence Act]." See also Odgers, S. Uniform Evidence Law (7th ed) Lawbook Co, Sydney 2006 p.305. Some of the expert evidence adduced by the plaintiff, such as the 2001 report of Mr Whitton, was obtained prior to any litigation being commenced.

Second, in Sydneywide Distributors Pty Ltd v Red Bull Australia Ltd [2002] FCAFC 157, Branson J described the pragmatic approach adopted to the question of admissibility of expert evidence by the Federal Court. She said (at [7],[9]): The approach of Heydon JA [in Makita v Sprowles ] is, as it seems to me, to be understood as a counsel of perfection. As a reading of his Honour's reasons for judgment as a whole reveals, his Honour recognised that in the context of an actual trial, the issue of the admissibility of evidence tendered as expert opinion evidence may not be able to be addressed in the way outlined in the above paragraph…

[2001] NSWCA 313

[2001] NSWCA 305