ARGYROU v MAX GLASS PTY LTD [1993] NSWCA 7

ARGYROU v MAX GLASS PTY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 16 August 1993

[1993] NSWCA 7

Clarke JA. (Re application for extension of time to file notice of appeal)

On 24 February 1993 Judge Graham gave judgment in favour of the opponent who was the plaintiff below. In that judgment he awarded the plaintiff $4871.69 with interest in the sum of $9,330.67 making a total of $14,202.36. The transaction out of which the claim arose occurred in 1981 and concerned the sale by the opponent of Glulam timber to the claimants for use in a kitchen, laundry and bathroom in premises in Kent Street, Sydney.

At the trial the claimants did not deny the debt but relied essentially upon a cross-claim in which they asserted that the Glulam timber supplied by the opponent had been defective 'in that it curved after instalment'. That was the only defect which was alleged in the pleadings.

In his Honour's judgment he said that it was common ground that when the laundry bench tops were inspected, they were found to be cupped. His Honour went on to describe cupping as a bowing of the board which, according to the experts, was comparable to a moisture imbalance in the timber. There being no question that there was a cupping of the Glulam when the bench tops were inspected his Honour's attention wasdirected to the causes of that cupping. The claimants asserted that the causes were moisture imbalance at the time of delivery. The opponent responded that there were two possible causes for the condition, both of which were the responsibility of the claimants.

His Honour did not form a favourable view of the witnesses called by the claimants saying that both witnesses were quite unsatisfactory. In the end his Honour concluded that the claimants had failed to discharge the onus of showing that the bench tops were defective when delivered. Indeed his Honour went further and said that he thought the probabilities favoured the conclusion that either the claimants had failed to seal one side of the Glulam bench tops or else had allowed moisture to penetrate the Glulam after delivery.