BROADHURST v WILLIAMS [1989] NSWCA 26

BROADHURST v WILLIAMS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

5 KIRBY P, SAMUELS and PRIESTLEY JJA 9 March 1989

[1989] NSWCA 26

Kirby P. A dispute has arisen between the appellant Hugh Broadhurst, builder, and John Williams, proprietor; that dispute came before Acting Judge Craigie in the District Court on 10 June 1988. His Honour's reasons for judgment are available but it seems that the transcript of the proceedings are not available and it may be that that fact explains some of the confusion which has followed.

A notice of appeal was originally filed in this Court which raised only two grounds:

(1) that the decision was against the weight of the evidence and that his Honour allowed figures in the Scott Schedule which relates to a concept other than the concept, the subject of the contract, and

(2) the decision was against the weight of the evidence in that his Honour applied figures assessed by the builder unrelated to the contract rather than those of an expert witness relating to the contract.

This notice of appeal was objected to by the present claimants and it led to filing an amended notice of appeal which isappropriate to set out in full for only then can the errors in it be appreciated.

Grounds:

(1) Despite his Honour finding that rectification work should involve underpinning and demolition of the wall, the subject of the action and thereafter reconstruction and such finding having been based upon an expert opinion of Mr Watt, his Honour erred in accepting that the cost of doing that work was the cost set out in the Scott Schedule when in fact the cost set out in the Scott Schedule relating to the doing of work which his Honour found was unnecessary.

(2) His Honour found that certain works were to be performed under the contract.

35 His Honour rejected that the work quoted by the builder was in accordance with the certain works to be performed under the contract. In assessing damages for the failure to perform those certain works, his Honour erred in that he used the figures given by the builder to perform the works that the builder quoted rather than the figures of the experts in relation to the performance of the certain works.