Carr v Miller [2018] NSWSC 1424

Supreme Court New South Wales

Medium Neutral Citation: Carr v Miller [2018] NSWSC 1424 Hearing dates: 02/07/2018, 03/07/2018, 04/07/2018, 05/07/2018, 09/07/2018, 10/07/2018, 11/07/2018, 12/07/2018. Further written submissions on 3/08/2018, 6/08/2018, 15/08/2018. Date of orders: 20 September 2018 Decision date: 20 September 2018 Jurisdiction: Equity - Technology and Construction List Before: McDougall J Decision: See at [371]. Catchwords: BUILDING AND CONSTRUCTION – residential property contained substantial defects – where purchaser induced to complete purchase through the provision of fraudulently obtained home warranty insurance certificates – whether third defendant (vendor) vicariously liable for the deceit of the second defendant (son-in-law).

BUILDING AND CONSTRUCTION – damages for defects – where first defendant (builder) named on the insurance certificates did not carry out the building works – whether first defendant estopped from denying the applicability of statutory warranties – assessment of rectification damages.

CONTRACT – interpretation of Deed which purports to deal with any claims relating the building words – whether Deed requires the second defendant to indemnify the third defendant for his deceitful conduct.

COSTS – usual order for hearing not complied with – produced court book was productive of excessive inefficiencies – solicitors not to charge clients for costs in creating and remedying the court book. Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) Evidence Act 1995 (NSW) Home Building Act 1989 (NSW) Interpretation Act 1987 (NSW) Cases Cited: Bebonis v Angelos (2002) 56 NSWLR 127 BI (Contracting) Pty Ltd v AW Baulderstone Holdings Pty Ltd [2007] NSWCA 173 Briginshaw v Briginshaw (1938) 60 CLR 336 Burrows v Rhodes [1899] 1 QB 816 Fountain v Alexander (1982) 150 CLR 615 Hatcher v White (1953) 53 SR (NSW) 285 McTier v Haupt [1992] 1 VR 653 O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 PMT Partners Pty Ltd (in liq) v Australian National Parks & Wildlife Service (1995) 184 CLR 301 Watson v Foxman (2000) 49 NSWLR 315 Texts Cited: Practice Note SC Eq 3 Category: Principal judgment Parties: Marcelle Carr (Plaintiff) Daniel Miller (First Defendant) Jason Nowytarger (Second Defendant) Joseph Pascali (Third Defendant) Representation: Counsel: Dr CJ Birch SC / B DeBuse (Plaintiff) TJ Davie (First and Second Defendants) S Docker / A Gandar (Third Defendant)