NSW Caselaw
TRIDEN PROPERTIES LTD v CAPITA FINANCIAL GROUP LTD; TRIDEN CONTRACTORS PTY LTD v CE HEATH CASUALTY AND GENERAL INSURANCE LTD; TRIDEN PROPERTIES LTD v TRIDEN CONTRACTORS PTY LTD; CAPITA FINANCIAL GROUP LTD v TRIDEN PROPERTIES LTD and ANOR
SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CLARKE, SHELLER and POWELL JJA 20-22 September 1995, 15 November 1995
CONTRACT — Building construction — defects — construction in "a proper and workmanlike manner" — compliance with specifications — breach — loss of commercial advantage or opportunity — damages — indemnity pursuant to s6 of the Law Reform (Miscellaneous Provisions) Act 1946 — costs
On 8 July 1988 Capita Finance (Capita) and Triden Properties Ltd (Properties), the Developer, entered into a written Development Agreement under which Properties undertook to construct a building. After the expiry of the Defect Period on June 1990, serious faults in the glass and granite curtain wall of the building were discovered. On 25 November 1991 Capita began proceedings claiming damages for alleged breaches by Properties of the Development Agreement. Devine Erby Mazlin (Australia) Pty Ltd (DEM) was added as a second defendant. Several cross claims were filed.
In a series of judgments in 1993 and 1994, Cole J, as he then was, adopted a referee's report enumerating defects in the building, held Capita entitled to succeed in its claim for breach of contract against Properties, Properties entitled to be indemnified in part by Contractors and Contractors entitled to be indemnified to the same extent by Timalco and to the extent of 81 percent of the indemnity, to have a charge over the insurance moneys enforceable against Heath. Capita was awarded damages in the sum of S1,503,306.49.
Cole J's decisions led to three notices of appeal and a summons for leave to appeal. The issues between the parties were dealt with under the following headings:
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