Dymocks v Capral [2013] NSWSC 343

Supreme Court New South Wales

Medium Neutral Citation: Dymocks v Capral [2013] NSWSC 343 Hearing dates: 18/02/2013, 19/02/2013, 20/02/2013, 21/02/2013, 22/02/2013, 25/02/2013, 26/02/2013, 27/02/2013, 28/02/2013 Decision date: 16 April 2013 Jurisdiction: Equity Division - Technology and Construction List Before: McDougall J Decision: Plaintiff to recover against each defendant $764,545.45 and interest. Cross-claims for contribution and costs to be reserved. Catchwords: NEGLIGENCE - Duty of care - pure economic loss - where contract for the provision of services by an architect the content of an architect's duty of care informed by the nature and scope of the retainer - duties in contract and tort co-extensive - plaintiff entitled to select the most advantageous action.

NEGLIGENCE - Duty of care - pure economic loss - where no contract for the provision of services by an architect - factors relevant to establishing existence of duty of care include assumption of responsibility, known reliance and reasonable forseeability of economic loss.

EVIDENCE - witnesses - credibility - deleterious effect of the effluxion of time on the reliability of witness testimony. Legislation Cited: Civil Liability Act 2002 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Albion Insurance Company Limited v Government Insurance Office of New South Wales (1969) 121 CLR 342 Associated Midland Corporation Limited v Bank of New South Wales (1984) 51 ALR 641 Astley v Austrust Limited (1999) 197 CLR 1 Barclay v Penberthy (2012) 86 ALJR 1206 Bellgrove v Eldridge (1954) 90 CLR 613 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 The North Shore Gas Company Limited v The Commissioner of Stamp Duties (NSW) (1940) 63 CLR 52Voli v Inglewood Shire Council (1963) 110 CLR 74 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 Woolmington v Bronze Lamp Restaurant Pty Ltd [1984] 2 NSWLR 242 Category: Principal judgment Parties: Dymocks Book Arcade Pty Ltd (Plaintiff) Capral Limited (First Defendant) Peter Dalton Architects Pty Ltd (Second Defendant) Stramit Corporation Limited (Formerly KH Stramit Corporation Limited) (First Cross-Defendant to Second Cross-Claim) Representation: Counsel: D T Miller SC / D A Hughes (Plaintiff) H J A Neal (First Defendant) I G B Roberts SC / L W F Chan (Second Defendant) I R Pike SC / J J Hutton (First Cross-Defendant to Second Cross-Claim) Solicitors: Norton Rose (Plaintiff) Colin Biggers & Paisley (First Defendant) Kennedys (Second Defendant) Sparke Helmore (First Defendant to Second Cross-Claim) File Number(s): 2009/298893