WINTOUR v ALLEN [1990] NSWCA 188

WINTOUR v ALLEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 21 and 22 May 1990, 22 May 1990

[1990] NSWCA 188

Clarke JA The respondent, who is a qualified civil engineer carrying on business at TweedHeads, sued the appellant claiming that he had been retained by the appellant in 1982 to act for him in connection with the preparation and lodgment of engineering plans and specifications necessary to gain the approval of a sub-division of land at Hastings Point in northern New south Wales.

The respondent claims that he performed the work and that consent was duly given by the Tweed Shire Council on 18 September 1985. The statement of claim was filed on 17 January 1986.

The appellant filed a defence but ultimately relied on a Notice of Grounds of Defence filed on 10 July 1986. He also filed a cross-claim seeking damages upon the basis that the respondent had breached his contractual duty to perform work of a professional standard within a reasonable time. The appellant said that the work was not up to standard and that it had not been performed within a reasonable time.

He also relied upon these two allegations as grounds of defence and in addition claimed as follows:

"Further and in the alternative the defendant states that the work for which the plaintiff claims payment was not done in accordance with the defendant's instructions for the engineering plans provide for levels at a higher level than the minimum RL of 2.1 datum as specified in paragraph J of the Council's letter dated 24 November 1981."

These appear to have been the only defences which are presently relevant. I should, however, mention that the appellant paid the respondent $5,000 in September 1983 and initially claimed that that was in payment of all the respondent's claims. However, it appears clear from the invoice which he paid that the claim was made in respect of non-engineering services of a detailed nature and that the claim that the respondent has mounted in this action is entirely separate.