Carr v JA Berriman Pty Ltd [1953] HCA 31

High Court of Australia Dixon C.J. Williams, Webb, Fullagar and Kitto JJ. Carr v JA Berriman Pty Ltd [1953] HCA 31

ORDER Both appeals dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

June 5 Williams J.

I agree with the reasons for judgment of Fullagar J. In my opinion both appeals should be dismissed with costs.

Webb J.

I agree that the appeals should be dismissed for the reasons given by Fullagar J.

Fullagar J.

We have before us two appeals from a judgment of the Full Court of New South Wales, which dismissed appeals from a judgment of Owen J. The judgment of Owen J. was pronounced on the trial of two actions, which arose out of the same facts and were heard together. The first action, which was commenced on 20th February 1951, was brought by J. A. Berriman Pty. Ltd. against Tony Carr, claiming damages for breach of contract. The second action, which was commenced on 9th March 1951, was brought by Tony Carr against J. A. Berriman Pty. Ltd., claiming damages for breach of the same contract. In the first action judgment was given for the plaintiff company for £2,992 with costs. The second action was dismissed with costs. The Full Court dismissed appeals by Carr in both cases. The decision was that of a majority (Street C.J. and Herron J.). Sugerman J. was of opinion that the company's action should be dismissed, and that in the other action judgment should be entered for Carr for damages to be assessed.

The contract in question, which was made on 3rd May 1950, was a contract under which the company undertook to erect for Carr on certain land owned by him in Parramatta Road, Flemington, a factory building in accordance with drawings and specifications prepared by Mr. H. P. Oser, a Sydney architect. Mr. Oser is the architect referred to in the contract. It is necessary to refer to a number of the provisions of this contract. Clause 1 provides that the builder will, upon and subject to the conditions annexed, execute and complete the works shown in the drawings and specifications, and cl. 2 that the proprietor will pay to the builder the sum of £18,245 for the work or such other sum as may become payable in accordance with the conditions annexed.