Roluke Pty Ltd & Anor v Lamaro Consultants Pty Ltd & Anor [2007] NSWSC 349

Roluke Pty Ltd & Anor v Lamaro Consultants Pty Ltd & Anor [2007] NSWSC 349

The contract was for professional structural engineering services requiring the exercise of due skill and diligence, not a contract to produce a waterproof building result. Although the defendants' defective design caused cracking and water penetration and breached contractual and tortious duties, the reasonable and necessary remedy was repairing the cracks and installing an Emerclad membrane with asphalt screed, with allowance for one replacement, rather than constructing a steel roof. The plaintiffs failed to prove diminution in market value because the valuation evidence lacked probative foundation connecting the alleged loss to the repaired defects.

Jurisdiction
Australia
Judgment Date
17 April 2007
Procedural Posture
Building Contract and Professional Negligence Proceedings in the Equity Division, Technology & Construction List / Judgment on Liability and Damages Assessment, With Proceedings to Be Re Listed to Settle the Amount of Damages and Costs
Outcome
Plaintiffs to be awarded damages including specified past damages, crack repair costs, membrane and asphalt screed installation costs, and business interruption amounts; roof option and diminution in value claim rejected; further listing directed to settle remaining damages and costs.
Legal Topics
['consulting Structural Engineer Design Services' 'defective Design of Concrete Slabs' 'waterproofing and Membrane Systems' 'contract to Produce a Result Versus Professional Services Contract' 'measure of Damages' 'rectification Costs' 'business Interruption Loss' 'diminution in Market Value']
['building and Construction' 'contract' 'tort' 'professional Negligence' 'trade Practices and Fair Trading' 'damages'] ['consulting Structural Engineer Design Services' 'defective Design of Concrete Slabs' 'waterproofing and Membrane Systems' 'contract to Produce a Result Versus Professional Services Contract' 'measure of Damages' 'rectification Costs' 'business Interruption Loss' 'diminution in Market Value']

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Procedural Posture

Building Contract and Professional Negligence Proceedings in the Equity Division, Technology & Construction List / Judgment on Liability and Damages Assessment, With Proceedings to Be Re Listed to Settle the Amount of Damages and Costs

Legal Issues

  1. 1 ['Whether a meeting occurred in late November or early December 1998 at which Mr Lamaro represented that he could design the level 3 slab to be waterproof without a membrane and topping slab.' 'Whether the defendants breached contractual and tortious duties by defective design of the level 2 and level 3 slabs.' 'Whether the contract was one to produce a waterproof building result or one for the provision of professional engineering services requiring due skill and diligence.' 'Whether the appropriate measure of damages was the cost of constructing a steel roof or the cost of repairing cracks and installing a membrane and asphalt screed system.' 'Whether the plaintiffs proved diminution in market value of the building in addition to rectification costs.']

Ratio Decidendi

The contract was for professional structural engineering services requiring the exercise of due skill and diligence, not a contract to produce a waterproof building result. Although the defendants' defective design caused cracking and water penetration and breached contractual and tortious duties, the reasonable and necessary remedy was repairing the cracks and installing an Emerclad membrane with asphalt screed, with allowance for one replacement, rather than constructing a steel roof. The plaintiffs failed to prove diminution in market value because the valuation evidence lacked probative foundation connecting the alleged loss to the repaired defects.

Court Disposition

Plaintiffs to be awarded damages including specified past damages, crack repair costs, membrane and asphalt screed installation costs, and business interruption amounts; roof option and diminution in value claim rejected; further listing directed to settle remaining damages and costs.

Orders

  • ['The parties were directed to consider and endeavour to agree upon the amounts to be awarded for replacement of the membrane including loss for related business interruption, interest where applicable, and any other outstanding items.' "The parties were directed to make arrangements with the judge's associate by...