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

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

The defendant was estopped by recital C of the Deed of Agreement from denying that it was retained to install the termite barrier system. The court found that termites gained concealed access to the plaintiffs' home at three relevant sites by penetrating incompletely sealed lapped joints in the Termite Tite barrier system, and rejected the proposed alternative causes. The incomplete sealing meant the installation was negligent and not done with due care and in a workmanlike manner. The plaintiffs were therefore entitled to reasonable rectification damages and interest, while the defendant's cross-claim failed because the claimed costs were costs it was required to bear under the Deed.

Jurisdiction
Australia
Judgment Date
22 December 2014
Procedural Posture
Civil Action for Damages for Breach of Contract Based on a Deed of Agreement, With Cross Claim for Costs of Work Done / Principal Judgment After Hearing
Outcome
Verdict and judgment for the plaintiffs against the defendant; verdict and judgment for the cross-defendants against the cross-claimant.
Legal Topics
['estoppel by Deed' 'breach of Contract' 'negligent Installation of Termite Barrier System' 'causation of Termite Ingress' 'assessment of Rectification Damages' 'expert Evidence Served Out of Time']
['contract Law' 'estoppel' 'building and Construction' 'civil Procedure'] ['estoppel by Deed' 'breach of Contract' 'negligent Installation of Termite Barrier System' 'causation of Termite Ingress' 'assessment of Rectification Damages' 'expert Evidence Served Out of Time']

Case Brief

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Procedural Posture

Civil Action for Damages for Breach of Contract Based on a Deed of Agreement, With Cross Claim for Costs of Work Done / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the defendant was estopped by the Deed of Agreement from denying that it was retained to install the Termite Tite barrier system in the plaintiffs' home." "Whether termite ingress at the plaintiffs' home was caused by negligent installation of the termite barrier system, including incompletely sealed lapped joints." 'Whether alternative causes of termite ingress, including bridging, a hole in the barrier, vapour barrier compromise, poor concreting or a cold joint, caused the damage.' 'What reasonable rectification damages and interest should be awarded to the plaintiffs.' "Whether the defendant's cross-claim for costs of work done should succeed." 'Whether the plaintiffs should have leave to rely on the report of Mr Graham Lancaster served out of time.']

Ratio Decidendi

The defendant was estopped by recital C of the Deed of Agreement from denying that it was retained to install the termite barrier system. The court found that termites gained concealed access to the plaintiffs' home at three relevant sites by penetrating incompletely sealed lapped joints in the Termite Tite barrier system, and rejected the proposed alternative causes. The incomplete sealing meant the installation was negligent and not done with due care and in a workmanlike manner. The plaintiffs were therefore entitled to reasonable rectification damages and interest, while the defendant's cross-claim failed because the claimed costs were costs it was required to bear under the Deed.

Court Disposition

Verdict and judgment for the plaintiffs against the defendant; verdict and judgment for the cross-defendants against the cross-claimant.

Orders

  • ['Verdict and judgment for the plaintiffs against the defendant for $56,492.' 'Verdict and judgment for the cross-defendants against the cross-claimant.' "Proposed order that the defendant pay the plaintiffs' costs." "Proposed order that the cross-claimant pay the cross-defendants' costs." 'Any party wishing to...