Hull v Thompson [2001] NSWCA 359

New South Wales Court of Appeal

CITATION : Hull v Thompson [2001] NSWCA 359 FILE NUMBER(S) : CA 40988/00 HEARING DATE(S) : 24 September 2001 JUDGMENT DATE : 15 October 2001

PARTIES : M & E M Hull Pty Limited v Steven and Rita Thompson & Anor JUDGMENT OF : Sheller JA at 1; Davies AJA at 2; Rolfe AJA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT DC 39/99 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

COUNSEL : Appellant - R F Margo SC, Mr G J Durie Respondents - T K Tobin QC, Mr A J Black SOLICITORS : Appellant - Warren F Ball & Co Respondents - Mark Mulock & Co CATCHWORDS : TORTS - negligence - where failure to build concrete slab of specified thickness resulted in damage to buildings - whether proper basis for damages demolition and reconstruction or repair and diminution in value - whether trial Judge gave adequate reasons - appeal dismissed Bellgrove v Eldridge (1954) 90 CLR 613 Rentokil Pty Limited v Channon (1990) 19 NSWLR 417 LEGISLATION CITED : Pantalone v Alaouie (1989) 18 NSWLR 119 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Mifsud v Campbell (1990) 21 NSWLR 75 CASES CITED: Limitation Act DECISION : Appeal dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40988/2000 DC 39 of 1999 SHELLER JA DAVIES AJA ROLFE AJA

15 October 2001 M & E M HULL PTY LIMITED v STEVEN AND RITA THOMPSON & ANOR TORTS – negligence – where failure to build concrete slab of specified thickness resulted in damage to buildings – whether proper basis for damages demolition and reconstruction or repair and diminution in value – whether trial Judge gave adequate reasons – appeal dismissed. The appellant entered into a contract with the first respondent to construct a two storey house and garage. The building specifications required the appellant to construct a 130mm thick concrete slab at ground level, as the buildings were to be erected on an essentially clay surface. The appellant failed to do this, which resulted in cracking and other damage to the buildings. The respondents sued the appellant claiming damage based on the cost of repairing the premises and diminution in value. At trial the respondents amended the Statement of Claim to claim damages on the alternative basis of the cost of demolition and reconstruction of the dwelling. The appellant did not apply for an adjournment or seek leave to cross-examine the respondents' expert witnesses. Accordingly, the case proceeded on the basis of various experts' reports on which there was no cross-examination.