COSHOTT and ANOR v FEWINGS JOINERY PTY LTD [1996] NSWCA 122

COSHOTT and ANOR v FEWINGS JOINERY PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, PRIESTLEY and BEAZLEY JJA 9 July 1996, 15 July 1996

[1996] NSWCA 122

CONTRACT FOR SUPPLY OF JOINERY — DEFECTS ALLEGED — S19(1) SALE OF GOODS ACT

CONTRACT FOR SUPPLY OF JOINERY TO HOUSE UNDER CONSTRUCTION- defects alleged in joinery supplied - trial judge holds defendant in breach of implied condition under s19(1) of Sale of Goods Act - awards costs of rectification rather than replacement - includes "solatium"- On appeal: plaintiff claims entitlement to replacement cost - defendant challenges inclusion of solatium - held: both rectification and solatium approaches by judge justified by facts and sound in principle - Ruxley Electronics and Construction Ltd v Forsyth (1996) 1 AC 344 and Bellgrove v Eldridge (1954) 90 CLR 613 referred to - judgment varied by deduction of minor amount allowed to plaintiff because trial judge mistakenly thought defendant had conceded liability for that amount - defendant's cross appeal otherwise dismissed - plaintiff's appeal dismissed.

ORDERS

1. Appeal dismissed; no order for costs.

2. Cross appeal allowed; no order for costs.

3. Judgment below set aside and in lieu thereof judgment to be entered, as at the date of the pronouncement of judgment by Judge Bell, in the sum of $23,205; costs to follow the event.

Gleeson CJ

I have had the benefit of reading in draft form the reasons for judgment of Priestley JA. I agree with the orders proposed by his Honour and with his reasons for those orders.

Priestley JA The present appeal proceedings, which come from the District Court, are between Mr and Mrs Coshott and Fewings Joinery Pty Ltd. In the District Court Mr and Mrs Coshott were the plaintiffs in an action against Fewings Joinery Pty Ltd as defendant. Mr Coshott was the principal actor on the plaintiff's side. When speaking of him alone, I will refer to him as the plaintiff. I will refer to Fewings Joinery Pty Ltd as the defendant.