Honeywood as executrix of the estate of the late Neville Honeywood v Munnings & Anor [2006] NSWCA 215

Reported Decision : 67 NSWLR 466

New South Wales Court of Appeal

CITATION: Honeywood as executrix of the estate of the late Neville Honeywood v Munnings & Anor [2006] NSWCA 215

HEARING DATE(S): 10 March 2006

JUDGMENT DATE: 2 August 2006

JUDGMENT OF: Handley JA at 1; Giles JA at 43; Hislop J at 44

DECISION: (1) Appeal allowed with costs.; (2) Set aside the orders of Master Harrison and in lieu thereof substitute an order allowing the appeal of the executrix to the Supreme Court with costs.; (3) Set aside the orders of the Tribunal of 27 September 2004 dismissing the notice of motion of the executrix of 8 September 2003 with costs and in lieu thereof substitute an order dismissing the application by the proprietors to the Tribunal of 20 September 2001.; (4) Remit the proceedings to the Tribunal with liberty for either the executrix or the proprietors to apply to it, at their own risk as to costs, for an order for the costs of the proceedings in the Tribunal.; (5) The proprietors to have a certificate or certificates under the Suitors' Fund Act 1951 with respect to the costs of the appeal in the Common Law Division and the costs of the further appeal to this Court.

CATCHWORDS: RES JUDICATA – merger – building contract – breach by builder – judgment for proprietor on cause of action – second claim against builder – claim barred - STATUTE – construction – Parliament mistakes existing law – existing law not necessarily changed - D

Building Services Corporation Legislation Amendment Act 1996 LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001 Home Building Act 1989

Cartledge v E Jopling & Sons Ltd [1963] AC 758 Conquer v Boot [1928] 2 KB 336 Hawkins v Clayton (1988) 164 CLR 539 IRC v Dowdall, O'Mahoney & Co Ltd [1952] AC 401 Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 CASES CITED: Onerati v Phillips Constructions Pty Ltd (In liq) (1989) 16 NSWLR 730 Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1 State Government Insurance Office (Q) v Rees (1979) 144 CLR 549 The Indian Grace [1993] AC 410 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 West Midland Baptist Association v Birmingham Corporation [1970] AC 874