Sinn-v-Rennie [1999] NSWSC 646

New South Wales Supreme Court CITATION : Sinn-v-Rennie [1999] NSWSC 646 CURRENT JURISDICTION : Civil FILE NUMBER(S) : 12102 of 1998 HEARING DATE(S) : 07/06/99 JUDGMENT DATE : 6 July 1999

PARTIES : Leo Chun Leung Sinn & Wendy Sau Chun Sinn -v- David Rennie & Sandra Rennie t/a Lockwoods Pest Control JUDGMENT OF : McInerney J at 1

LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Magistrate Barnett,SM

COUNSEL : For the Plaintiff: Mr. Kerr For the Defendant: Mr. Gruzman SOLICITORS : For the Plaintiff: Rosier Associates For the Defendant: George Bassil CATCHWORDS : CASES CITED : Jones -v- Dunkel (1959)101 CLR 298 DECISION : In all the circumstances here I am not satisfied the learned Magistrate's failure to make specific reference to this question is such that I should uphold the Plaintiffs' application and I dismiss the stated case.

- 8 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Tuesday 6 July 1999

McINERNEY AJ

12102/1998: LEO CHUN LEUNG SINN &WENDY SAU CHUN SINN-v-DAVID RENNIE &SANDRA RENNIE t/a LOCKWOODS PEST CONTROL.

JUDGMENT 1 HIS HONOUR: In this matter the Plaintiffs, Leo Chun Leung Sinn and Wendy Sau Chun Sinn seek relief by way of stated case from a decision by Local Court Magistrate Mr. Barnett, SM, on 30th June 1997, when he found a verdict against the Plaintiffs and in favour of the Defendants. 2 This matter arose out of the Plaintiffs' having initially intended to purchase a property, which they ultimately purchased, from a Mr. & Mrs. Weatherstone, situated at 68 Townsend Street Blakehurst. Before purchase they retained a G.H. Wardman and Co. to undertake a pre-purchase building inspection on 8th March 1994. On or about 9th March 1994 the Plaintiff retained the Defendant company to inspect the property in order to locate any past or active infestation of timber by termites, the Defendants carried out the inspection and prepared a report and made no mention of any relevant termite activity. 3 The Plaintiffs' purchased the property and in November or early December they retained the services of a Mr. Doaud, a builder, to carry out certain renovations on the property for them. He commenced this work on 11th January 1995, the second Plaintiff asked him to fix loose floor boards in the lounge room, Mr. Doaud on commencing to do so, discovered the floor boards were infested with termites. An inspection disclosed a termite nest on the underside of the front steps leading to the property. The Plaintiffs' then commenced these proceedings against the Defendants' for damages in the Local Court and the matter came before the learned Magistrate. 4 Mr. King, a builder and building consultant who gave expert evidence for the Plaintiffs' stated because it was a big infestation of termites it may have been in place for one to five years. His Worship appears to have accepted that the termite nest would have been in existence at the time of the inspection by the Defendants. 5 The issue, debated in the case between the parties, was whether at the time of the inspection by the Defendants' the termites nest was visible. This depended on whether an opening in the brickwork which enabled the nest to be seen was in existence at the time of the Defendants' inspection of the premises. It was there when the termite nest was found, ten months after the inspection by the Defendants', but the Defendants' denied its existence at the time of the inspection. His Worship was alive to the issue when he said in the course of his judgment that if the Plaintiffs' could show the nest was visible at the time, the Plaintiffs' must surely win their case, he added: "What the position was with this termites nest, and its accessibility at the time of the Lockwoods report on matters that are extremely important in the Plaintiffs case." 6 The second Plaintiff took photographs of the termites nest and it was said to be clearly visible through the opening in the brickwork said to be shown in Exhibit 11, I have not seen that exhibit. Mr. King gave evidence in cross-examination as to the most likely construction method of houses of that type in the particular area at the time it was built and the method of construction was to build a house with continuos walls and then add on the final front entrance, porch, or patio with steps going down to the garden, His Worship then said: "This evidence leaves open a possibility that there was never a permanent opening in the area, such as shown in Exhibits 8 and 11." 7 Mr. Doaud, the Plaintiffs' builder said that he did not make the opening in the wall, as shown in Exhibits 8 and 11, but that opening was present when he went under the house with the person from Pacific Pest Control Ltd. 8 As to the Defence case, His Worship noted that Mr. Rennie had given evidence of inspecting all accessible areas under the house, denying that the opening in Exhibits 8 and 11 was in existence at the time of his inspection, His Worship then went on to say: "It is difficult to say from the evidence exactly when the opening was made. The Defence asked that I draw inferences adverse to the Plaintiff from the photographs in 8 and 11 in so far as what appears to be form work, I am not sure that I can draw any such adverse inference, but the issue of whether the opening was there when Mr. Rennie inspected the premises must remain in some doubt in view of the state of the evidence the time elapse between the Lockwoods report and the discovery of the termites, and a number of people that may have had access to the area after settlement while plans etc. were being drawn up." 9 The issue now before me was the correctness of His Worship's decision and in particular the failure of the Defendants' to call Mr. Weatherstone should have led the learned Magistrate to draw an inference that there was a hole in the wall at the time of the Defendants' inspection. The question of what should have resulted from the alleged failure of the Defendants' to call Mr. Weatherstone arose out of a question asked by Mrs. Weatherstone by Mr. Gruzman, who appeared for the Defendants' at the Hearing. It is not clear whether Mrs. Weatherstone was called by the Plaintiffs' or by the Defendants', I am prepared to assume that she was called for the Defendants', the question was: Question: "In your explorations under the house, did you see that area?"