WOODWARD PTY LTD v KELLEHER [1989] NSWCA 82

WOODWARD PTY LTD v KELLEHER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, SAMUELS and PRIESTLEY JJA 20 April 1989, 30 May 1989

[1989] NSWCA 82

JURISDICTION OF DISTRICT COURT — action and cross-claim removed by consent from Supreme Court to District Court proceedings litigated to completion in District Court without any question as to jurisdiction being raised — attempt to raise jurisdiction issue on appeal — HELD: the District Court being a Court whose jurisdiction can be enlarged by the consent of the parties, a party can waive his right to call the jurisdiction in question, and such waiver had occurred in the present case.

Eyres v Butt [1986] 2 Qd R 243 followed, Farquharson v Morgan [1894] 1 QB 552; Secretary of State for Defence v Warn [1970] AC 394; Essex Incorporated Congregational Church Union v Essex County Council [1863] AC 808; Honnery v Smith 57 SR NSW 598 distinguished Heron v Newell (Master Allen, unreported 28 June 1977) considered. WAIVER - circumstances in which a party may waive a right to object to jurisdiction considered. DAMAGES - proprietor's claim for damages for breach of a building contract - work of rectification not done on date of hearing - no unreasonable delay on part of proprietor. HELD: in the circumstances it was open to the trial judge to assess costs of rectification as at date of trial - Radford v De Froberville [1977] 1 WLR 1262 followed. BUILDERS LICENSING ACT 1971 - failure to comply resulting in builders inability to sue for unpaid balance of amount due under building contract - HELD: In applying the principles established by Bellgrove v Eldridge 90 CLR 613 as to measure of proprietor's damages, the unpaid balance due under the building contract should be deducted from the costs of rectification. Pavey and Matthews Pty Limited v Paul (1987) 61 ALJR 151 applied. Builders Licensing Act 1971 District Court Act 1973