NSW Caselaw
Appeal Outcome: Special leave refused with costs by the High Court, 3 September 2010, (S105/2010)
New South Wales Court of Appeal
CITATION: Wheeler & Anor v Ecroplot Pty Ltd [2010] NSWCA 61
HEARING DATE(S): 19 February 2010
JUDGMENT DATE: 1 April 2010
JUDGMENT OF: McColl JA at 1; Basten JA at 2; Macfarlan JA at 3
(1) Appeal allowed; (2) Orders made at first instance be set aside other than the specific costs orders made on 7 November 2008 and 18 December 2008; DECISION: (3) Judgment for the appellants in the sum of $107,224.64 plus interest pursuant to s 101 of the Civil Procedure Act 2005 from 20 February 2009; (4) Order the respondent to pay the appellants' costs of the appeal and of the proceedings at first instance other than the costs which are the subject of the specific costs orders referred to in (2) above; and (5) Grant the respondent a certificate under the Suitors' Fund Act 1951 if not disqualified under s 6(7).
CATCHWORDS: CONTRACTS - building contract - builder's obligation to execute work in proper and workmanlike manner - compacted land fill allowed to dry out before concrete slab poured on top of it - DAMAGES - breaches of building contract for construction of dwelling - whether underpinning to rectify stability related breach reasonable - Bellgrove v Eldridge - Tabcorp Holdings Pty Ltd v Bowen Investments Pty Ltd
LEGISLATION CITED: Civil Procedure Act 2005 Suitors' Fund Act 1951
CATEGORY: Principal judgment
Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2006] NSWCA 361 Building Insurers' Guarantee Corporation v The Owners - Strata Plan No 57504 [2010] NSWCA 23 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 CASES CITED: Gagner Pty Ltd v Canturi Corporation Pty Ltd [2009] NSWCA 413 Kirkby v Coote [2006] QCA 61 South Parklands Hockey & Tennis Centre Inc v Brown Falkiner Group Pty Ltd [2004] SASC 81 Westpoint Management Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272
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