Minogue v Rudd [2013] NSWCA 345

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Minogue v Rudd [2013] NSWCA 345 Hearing dates: 10 and 11 September 2013 Decision date: 22 October 2013 Before: Macfarlan JA at [1] Hoeben JA at [79] Emmett JA at [80] Decision: (1)Appeals and cross-appeals dismissed. (2)Direct that the parties lodge written submissions concerning costs in accordance with the following timetable: (a) The appellant within three working days of the date of this judgment. (b) The respondent within three working days thereafter. (c) The cross-respondent within three working days thereafter. (d) Any replies by the appellant and the first respondent within three working days thereafter. (3)Direct that the question of what costs orders should be made be determined upon the basis of the written submissions of the parties, without the necessity for a further oral hearing. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - appellant carpenter injured when he fell through unfinished floor on building site - floor joists lacked one supporting strut - how and why appellant fell not established - causation of injuries by assumed negligence not established - whether builder negligent in not installing a temporary floor given that appellant was an experienced tradesperson Legislation Cited: Civil Liability Act 2002 Law Reform (Miscellaneous Provisions) Act 1946 Cases Cited: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Condos v Clycut Pty Ltd [2009] NSWCA 200 Davis v Nolras Pty Ltd [2005] NSWCA 379 Ilvariy Pty Ltd t/as Craftsman Homes v Sijuk [2011] NSWCA 12 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Luxton v Vines [1952] HCA 19; 85 CLR 352 Papatonakis v Australian Telecommunications Commission [1985] HCA 3; 156 CLR 7 Shaw v Thomas [2010] NSWCA 169 Category: Principal judgment Parties: Paul Timothy Minogue (Appellant) David Jonathan Rudd t/as Rudd & Co Construction Pty Ltd (Respondent/Cross-Appellant/Second Cross-Respondent) DMW Carpentry Services Pty Ltd (Cross-Respondent/Second Cross-Appellant) Representation: Counsel: B J Gross QC/R Harrington (Appellant) G M Watson SC/D A Lloyd (Respondent/ Cross-Appellant/Second Cross-Respondent) D Hooke SC/S Maybury (Cross-Respondent/Second Cross-Appellant) Solicitors: Carroll & O'Dea (Appellant) Wotton Kearney Lawyers (Respondent/ Cross-Appellant/Second Cross-Respondent) Edwards Michael Lawyers (Cross-Respondent/Second Cross-Appellant) File Number(s): CA 2012/149952 Decision under appeal Jurisdiction: 9111 Citation: Minogue v Rudd [2012] NSWSC 305 Date of Decision: 2012-04-12 00:00:00 Before: Adamson J File Number(s): SC 2008/289464