ADH Plumbing Pty Ltd v Glenashka Pty Ltd as Trustee of the Colin Henry Wilson Trading Trust trading as Wilsons Betamix Goonumbla Quarry & Wilsons Betamix Concrete and Another [2020] NSWDC 593

District Court New South Wales

Medium Neutral Citation: ADH Plumbing Pty Ltd v Glenashka Pty Ltd as Trustee of the Colin Henry Wilson Trading Trust trading as Wilsons Betamix Goonumbla Quarry & Wilsons Betamix Concrete and Another [2020] NSWDC 593 Hearing dates: 30 June 2020 – 3 July 2020; 13 August 2020 (last written submissions received); 3 September 2020 (oral submissions) Date of orders: 7 October 2020 Decision date: 07 October 2020 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) Judgment for the defendant, K&H Geotechnical Services Pty Ltd. (2) The plaintiff is to pay the costs of the defendant, K&H Geotechnical Services Pty Ltd, of the proceedings as agreed or assessed. (3) Liberty to any party to make an application within 14 days to vary order (2) above. (4) The exhibits are to be returned after 28 days. Catchwords: CONTRACT - contract for provision of professional geotechnical services – dispute as to terms of contract – whether contract between parties was to provide inspection and testing services including Level 1 inspection and testing services or only ad hoc geotechnical testing when requested – whether offer from the defendant to provide Level 1 inspection and testing services was accepted by plaintiff – whether road base in construction of roads was DGB 20 compliant – whether testing undertaken by defendant for plaintiff breached contract for provision of professional services NEGLIGENCE – duty of care – what was the extent of retainer between the parties which was relevant to the duty of care owed – whether penumbral duty of care asserted was owed or able to be claimed on the pleadings – risk of harm – whether any duty of care found was breached – what warnings if any were given by the defendant – whether any warnings given complied with duty of care – whether testing undertaken complied with duty of care – whether any breach of duty caused any loss - whether third-party (former first defendant) was a concurrent wrongdoer with the defendant – mitigation of loss - contributory negligence Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: APT SEA Gas Holdings Pty Ltd v ANP SEA Gas Holdings Pty Ltd [2010] NSWSC 1221 Astley v Austrust Ltd (1999) 197 CLR 1 Australian Medico-Legal Group Pty Ltd v Clareleigh Mosman Pty Ltd [2017] NSWCA 218 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council [1977] HCA 40; (1977) 52 ALJR 20 Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 Caringbah Investments Pty Ltd v Caringbah Business & Sports Club Ltd (in liquidation) [2016] NSWCA 165 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 David v David [2009] NSWCA 8 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Hanna v Raoul [2018] NSWCA 201 Heydon v NRMA Ltd (2000) 51 NSWLR 1 Jefferis v Gells Pty Ltd [2018] NSWDC 288 Lawrence v Ciantar [2020] NSWCA 89 Lloyd v Thornbury [2019] NSWCA 154 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Management Services Australia Pty Ltd t/as Peak Performance PM v PM Works Pty Ltd [2019] NSWCA 107 Shaddock & Associates Pty Ltd v Parramatta City Council [1981] HCA 59; (1981) 150 CLR 225 Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 186 Trajkovski v Simpson [2019] NSWCA 52 Watson v Foxman (1995) 49 NSWLR 315 Winnote Pty Ltd & Anor v Page & Ors [2006] NSWCA 287; (2006) 68 NSWLR 531 Category: Principal judgment Parties: ADH Plumbing Pty Ltd (Plaintiff) K & H Geotechnical Services Pty Ltd (Second Defendant) Representation: Counsel: P Wallis (Plaintiff) D Elliott (Second Defendant)