Bellmarch Developments Pty Ltd v Kaine Simon Alcorn trading as Alcorn's [2006] NSWDC 51

Bellmarch Developments Pty Ltd v Kaine Simon Alcorn trading as Alcorn's [2006] NSWDC 51

The plaintiff knew or consented to the use of a turbo nozzle despite resulting damage, after being alerted to the problem with mortar hardness and excessive mortar; the cause of loss was not the defendant's breach but the quality of bricklaying and the decision to proceed with cleaning. Plaintiff failed to prove their case. The cross claim for unpaid invoices was proven and judgment granted for the defendant.

Jurisdiction
Australia
Judgment Date
23 February 2006
Procedural Posture
Civil / Judgment at Trial, Including Cross Claim
Outcome
Judgment for the defendant on the plaintiff's claim; judgment for the cross claimant (defendant) on the cross claim against the plaintiff; plaintiff to pay defendant's costs of the action and the cross claim.
Legal Topics
['building Sub Contracts' 'implied Terms' 'proper and Workmanlike Manner' 'causation of Loss' 'remedies for Breach' 'cross Claims']
['contract' 'building and Construction Law'] ['building Sub Contracts' 'implied Terms' 'proper and Workmanlike Manner' 'causation of Loss' 'remedies for Breach' 'cross Claims']

Case Brief

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Procedural Posture

Civil / Judgment at Trial, Including Cross Claim

Legal Issues

  1. 1 ['Whether defendant performed brick cleaning in a proper and workmanlike manner' "Whether alleged defects and damage to properties were caused by defendant's work" "Whether plaintiff's claim for damages succeeds" 'Whether cross claim for unpaid monies is justified']

Ratio Decidendi

The plaintiff knew or consented to the use of a turbo nozzle despite resulting damage, after being alerted to the problem with mortar hardness and excessive mortar; the cause of loss was not the defendant's breach but the quality of bricklaying and the decision to proceed with cleaning. Plaintiff failed to prove their case. The cross claim for unpaid invoices was proven and judgment granted for the defendant.

Court Disposition

Judgment for the defendant on the plaintiff's claim; judgment for the cross claimant (defendant) on the cross claim against the plaintiff; plaintiff to pay defendant's costs of the action and the cross claim.

Orders

  • ['Verdict and judgment for the defendant against the plaintiff.' 'Verdict and judgment for the cross claimant against the cross defendant for $6487.13.' "Plaintiff to pay the defendant's costs of the action and of the cross claim."]