Paul Smith & Mary Smith v John Orr [2007] NSWLC 16

Local Court of New South Wales

CITATION: Paul Smith & Mary Smith v John Orr [2007] NSWLC 16 JURISDICTION: Civil PARTIES: Paul & Mary Smith John Orr FILE NUMBER: 80657/06 PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 06/15/2007 MAGISTRATE: Magistrate H Dillon CATCHWORDS: Negligence – Building works – Whether works defective – Whether plaintiff mitigated damages – Building & Construction - Contracts – Whether defendant breached implied terms – Whether work carried out in workmanlike manner – Whether materials supplied fit for purpose – Whether works carried out with due diligence in a reasonable time LEGISLATION CITED: Evans v Balog [1976] 1 NSWLR 36 Hyder Consulting (Aust) Pty Ltd v Wilh Wilhemsen Agency Pty Ltd [2001] NSWCA 313 CASES CITED: Makita v Sprowles [2001] NSWCA 305 Rich v ASIC [2005] NSWCA 233 Sydneywide Distributors Pty Ltd v Red Bull Australia Ltd [2002] FCAFC 157 Ms E. Kennedy (Counsel for Plaintiff) Mills Oakley Lawyers (Solicitors for Plaintiff) REPRESENTATION:

Mr J. Orsborn (Counsel for Defendant) Carroll & O'Dea (Solicitors for Defendant) ORDERS: 1. In relation to their claim, verdict for the plaintiffs in the sum of $19,406.; 2. In relation to the cross-claim, verdict for the cross-claimant in the sum of $7351.90; 3. Judgment for the plaintiffs in the sum of $12,054.10 plus interest to be assessed by the Registrar from 23 January 2001.; 4. I reserve the question of costs

Judgment

1. The plaintiffs, Mr Paul Smith and Mrs Mary Smith, own a house in Lake Cargelligo, which was built in part by the defendant, Mr John Orr. They allege that some of the work done on the house was defective and other parts were left incomplete. In their statement of claim they list 29 specific defects. They assert that Mr Orr was negligent in the way he or his agents carried out the work and they assert that he breached various terms implied in his contract with them. They claim damages which they assert amount to about $38,000.