Robson v The White Ant Company Pty Ltd [2014] NSWDC 251

District Court New South Wales

Medium Neutral Citation: Robson v The White Ant Company Pty Ltd [2014] NSWDC 251 Decision date: 22 December 2014 Before: Neilson DCJ Decision: Verdict and judgment for plaintiffs against defendant Verdict and judgment for cross-defendants against the cross-claimant Catchwords: ESTOPPEL BY DEED - Termite barrier installed in plaintiffs' home by a company other than the defendant - Termite ingress damages plaintiffs' home - Action based on a deed between parties - Barrier installed negligently - Determination of cause of termite ingress Cases Cited: Eslea Holdings Ltd v Butts (1986) 6 NSWLR 175 Cabouche & Bond v Ramsay (1993) 119 ALR 215 (FFCA) Greer v Kettle [1937] 4 All ER 396 Re Patrick Corp Ltd and the Companies Act [1981] 2 NSWLR 328 Texts Cited: Halsbury's Laws of Australia Rawlinsons Construction Cost Guide 2012 Category: Principal judgment Parties: Michael & Judith Robson (Plaintiffs/Cross-defendants) Representation: Solicitors Somerville Laundry Lomax (Lismore) (Plaintiffs/Cross-defendants)Bennett & Philp (Brisbane) (Defendant/Cross-claimant) Counsel Ms C Smith (Plaintiffs/Cross-defendants) Mr C Johnstone (Defendant/Cross-claimant) File Number(s): 2011/101316 Publication restriction: No

Judgment 1The plaintiffs bring an action for damages for breach of contract based on a document entitled "Deed by Agreement" which has not been dated by any party. Exhibit L has been executed by the plaintiffs but exhibit 10 contains a copy of it executed by each party. That copy appears from exhibit 10 to have been forwarded by the plaintiffs' then solicitor to the defendant under cover of a letter dated 9 April 2009, which appears to have been sent by email. The Deed of Agreement must be seen as being effective from 9 April 2009. The further amended statement of claim filed in Court on 21 May 2013 claims $104,547 plus interest, but that claim was reduced during the plaintiffs' address on 8 November 2013 to $87,086. Relying on the same Deed of Agreement, the defendant has brought a cross-claim against the plaintiffs for $6,880.05. The substance of the dispute between the parties arises out of the invasion of the plaintiffs' home by termites, or white ants, first discovered by Mr Michael Robson some time in 2006. The plaintiffs' claim is for the "reasonable costs of the rectification" of damage done to their home by the termites. The defendant's claim is for the costs of work done by it at the plaintiffs' home. The heart of this dispute is "a simple issue as to what was the cause of the termite infestation" of the plaintiffs' home: T 21 May 2013, p 17.38.