TRIDEN PROPERTIES LTD v CAPITA FINANCIAL GROUP LTD; TRIDEN CONTRACTORS PTYLTD v CE HEATH CASUALTY AND GENERAL INSURANCE LTD; TRIDEN PROPERTIES LTD vTRIDEN CONTRACTORS PTY LTD; CAPITA FINANCIAL GROUP LTD v TRIDEN PROPERTIESLTD and ANOR [1995] NSWCA 543

TRIDEN PROPERTIES LTD v CAPITA FINANCIAL GROUP LTD; TRIDEN CONTRACTORS PTYLTD v CE HEATH CASUALTY AND GENERAL INSURANCE LTD; TRIDEN PROPERTIES LTD vTRIDEN CONTRACTORS PTY LTD; CAPITA FINANCIAL GROUP LTD v TRIDEN PROPERTIESLTD and ANOR [1995] NSWCA 543

Triden Properties breached its contract with Capita by failing to construct the building in a proper and workmanlike manner and not complying with specifications. The CL9.2 certificate was not a bar to Capita’s claim, as it did not satisfy the requirements or preclude action for latent or other defects. Damages were to be awarded as the cost of rectifying the defects, not for loss of commercial opportunity, as the Development Agreement was not a promise to provide such advantage. The events giving rise to the insurance charge under s6 occurred within the period of cover, so CE Heath’s indemnity attached in respect of the design defects. Properties and Contractors were entitled to...

Parties
Appellant/cross Claimant/first Defendant/developer: Triden Properties Ltd; Appellant/cross Claimant/first Cross Defendant: Triden Contractors Pty Ltd; Respondent/applicant: Capita Financial Group Ltd; Respondent/second Cross Defendant: CE Heath Casualty and General Insurance Ltd; Cross Claimant: Triden Investments Ltd; Second Defendant/cross Appellant: Devine Erby Mazlin (Australia) Pty Ltd (DEM); Second Cross Defendant: Timalco Glass Structures Pty Ltd
Jurisdiction
Australia
Judgment Date
15 November 1995
Procedural Posture
Appeal and Cross Appeal From Trial/cross Claims / Appellate Judgment
Outcome
Appeals (40357/94, 40574/94) allowed in part; other appeals and cross-appeals dismissed.
Legal Topics
Breach of Contract, Damages, Indemnity, Defects Liability, Loss of Commercial Opportunity, Insurance Charge Under S6 Law Reform (miscellaneous Provisions) Act 1946, Costs in Litigation
Contract Law Building and Construction Law Insurance Law Breach of Contract Damages Indemnity Defects Liability Loss of Commercial Opportunity +2 more

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Parties

Triden Properties Ltd

Appellant/cross Claimant/first Defendant/developer

Triden Contractors Pty Ltd

Appellant/cross Claimant/first Cross Defendant

Capita Financial Group Ltd

Respondent/applicant

CE Heath Casualty and General Insurance Ltd

Respondent/second Cross Defendant

Triden Investments Ltd

Cross Claimant

Devine Erby Mazlin (Australia) Pty Ltd (DEM)

Second Defendant/cross Appellant

Timalco Glass Structures Pty Ltd

Second Cross Defendant

Procedural Posture

Appeal and Cross Appeal From Trial/cross Claims / Appellate Judgment

Legal Issues

  1. 1 Whether Triden Properties breached its obligation to construct the building in a proper and workmanlike manner in accordance with specifications under the Development Agreement
  2. 2 Whether the certificate issued under CL9.2 of the Development Agreement was valid and conclusive
  3. 3 Whether damages for loss of chance of sale were recoverable

Ratio Decidendi

Triden Properties breached its contract with Capita by failing to construct the building in a proper and workmanlike manner and not complying with specifications. The CL9.2 certificate was not a bar to Capita’s claim, as it did not satisfy the requirements or preclude action for latent or other defects. Damages were to be awarded as the cost of rectifying the defects, not for loss of commercial opportunity, as the Development Agreement was not a promise to provide such advantage. The events giving rise to the insurance charge under s6 occurred within the period of cover, so CE Heath’s indemnity attached in respect of the design defects. Properties and Contractors were entitled to...

Court Disposition

Appeals (40357/94, 40574/94) allowed in part; other appeals and cross-appeals dismissed.

Orders

  • Judgment for the cross claimants (Investments and Properties) against the first cross defendant (Contractors) in the sum of $1,503,306.49;
  • Judgment for the second cross claimant (Contractors) against the second cross defendant (Timalco) in the sum of $1,217,678.10;