Bellmarch Developments Pty Ltd v Kaine Simon Alcorn trading as Alcorn's [2006] NSWDC 51

New South Wales District Court

CITATION: Bellmarch Developments Pty Ltd v Kaine Simon Alcorn trading as Alcorn's [2006] NSWDC 51

HEARING DATE(S): 22/02/2006-23/02/2006 EX TEMPORE JUDGMENT DATE : 02/23/2006

JURISDICTION: Civil

JUDGMENT OF: Neilson DCJ at 1

DECISION: Verdict and Judgment for the defendant against the plaintiff; Verdict and Judgment for the cross-claimant against the cross defendant; Plaintiff to pay the defendant's costs of the action and of the cross claim

CATCHWORDS: Contract - Building sub-contract - Whether work done in "a proper and workmanlike manner" - Whether such work causative of loss

PARTIES: Bellmarch Developments Pty Ltd (Plaintiff / Cross Defendant) Kaine Simon Alcorn t/as Alcorn's (Defendant / Cross Claimant)

FILE NUMBER(S): 4990/04

COUNSEL: Mr S. Cairns (Plaintiff / Cross Defendant) Mr R.A. Cavanagh (Defendant / Cross Claimant)

JUDGMENT

1 HIS HONOUR: On the 1 December 2004 the plaintiff Bellmarch Development Pty Limited filed a liquidated statement of claim, claiming a sum of $68,038.63 from the defendant. The claim arises from a number of allegations of breach of contract and in my view it was strictly not the proper subject for statement of liquidated claim. However nothing turns on that.

2 The defendant filed a defence on the 26 May 2005 and it was properly verified. The defendant has filed a cross claim against the plaintiff to which the plaintiff filed a defence on 10 November 2005, however it now appears to be common ground that the defendant has withheld from the plaintiff monies due to him under various contracts amounting to the sum claimed in the cross claim, namely $5295.62.

3 The plaintiff is a building construction company. The defendant was at the time a sole trader in the business of cleaning bricks. The defendant's experience in the brick cleaning business was for some two years, I assume, as an employee or sub contractor to another brick cleaner, and then he commenced his own brick cleaning business. During the period between 2002 and 2004 the defendant carried out brick cleaning work for a number of companies including Clarendon Homes. As a result of a recommendation from someone at Clarendon Homes the defendant was contacted by Mr Brian O'Donaghue of Bellmarch Developments Pty Limited and asked to do certain jobs for Bellmarch. Sometime in 2003 the defendant started doing brick cleaning work for the plaintiff, Mr Gerry Hindmarsh, a director of, and I infer a principal of, the plaintiff company, estimated that the defendant would carry out approximately two jobs per week for the plaintiff, that is cleaning two houses that had been constructed, each week. The plaintiff's claim is in respect of six jobs that the defendant performed for the plaintiff.