CARRINGTON CONSTRUCTIONS PTY LTD v FIORE HOLDINGS PTY LTD [1992] NSWCA 36

CARRINGTON CONSTRUCTIONS PTY LTD v FIORE HOLDINGS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and HANDLEY JJA 6 November 1991, 1 May 1992 [1992] NSWCA 36

APPEAL from District Court — Contract between builder and plasterer for plastering of a house during building. NATURE OF WARRANTY BY PLASTERER — Whether warranty of reasonable fitness for the purpose or promise to carry out work in proper and workmanlike manner and with proper materials — Depends on circumstances of job and contract. WHETHER WARRANTY BREACHED — Judge held not breached — (By majority) Held warranty was breached.

Mahoney JA In or about January 1981 Carrington Constructions Pty Ltd ("the builder") commenced construction of a house for Mr and Mrs Bihari. In or about July 1981 it engaged a firm United Plasterers Company ("the plasterer") to carry out the plastering work in the building. The plastering work was completed in or about October 1981.

In December 1981 Mr and Mrs Bihari moved into the house. In March or April 1982 cracks began to appear in the paint surface in parts of the building. It now appears that the substantial defects which developed resulted from cracking in the plasterwork which had been done by the plasterer. Mr and Mrs Bihari sued the builder for the defects which had emerged. The builder served third party notices on the plasterer and others. An agreement had been arrived at between Mr and Mrs Bihari and the builder and the third party notices served by the builder upon parties other than the plasterer have not been proceeded with.

The only matter now in issue is whether the plasterer is liable to compensate the builder for the amount which the builder has paid to Mr and Mrs Bihari. It is the issue of liability only which is now in question.

The proceeding was heard by his Honour Judge Mahoney in the District Court. On 24 April 1990 his Honour dismissed the builder's claim against the plasterer. The builder has appealed to this Court against his Honour's judgment.