Philpott v Kettley & Anor [1999] NSWSC 271

Philpott v Kettley & Anor [1999] NSWSC 271

The Magistrate indicated her reasoning sufficiently and did not commit an error of law. She was entitled to prefer the eyewitness evidence of Mr and Mrs Kettley about the brickwork, to accept the view that a prudent builder should have alerted the purchasers to the discoloured bricks and possible causes, and to find that the defendant's report fell below the required standard because it made no reference to the discoloured bricks or further diagnostic steps. The appellant did not discharge the onus of showing inadequate reasons or other error of law, so the Magistrate's determination was affirmed and the summons dismissed.

Jurisdiction
Australia
Judgment Date
01 April 1999
Procedural Posture
Stated Case / Supreme Court Determination of Questions of Law Arising From Local Court Civil Claim Judgment
Outcome
Magistrate's determination affirmed; summons dismissed; appellant ordered to pay respondents' costs.
Legal Topics
['pre Purchase Building Inspection' 'adequacy of Reasons' 'stated Case' 'questions of Law' 'standard of Care' 'expert Evidence']
['professional Negligence' 'building and Construction' 'civil Procedure' 'appellate Review'] ['pre Purchase Building Inspection' 'adequacy of Reasons' 'stated Case' 'questions of Law' 'standard of Care' 'expert Evidence']

Case Brief

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Procedural Posture

Stated Case / Supreme Court Determination of Questions of Law Arising From Local Court Civil Claim Judgment

Legal Issues

  1. 1 ['Whether the Magistrate gave inadequate reasons amounting to an error of law in finding the state of brick and mortar decay at the property as at 15 February 1991.' 'Whether the Magistrate gave inadequate reasons or erred in law in finding that a reasonably prudent builder providing a pre-purchase inspection report would have alerted the purchasers to discoloured bricks and advised on possible causes and further steps.' 'Whether the Magistrate gave inadequate reasons or erred in law in finding that the defendant did not exercise all due professional skill, care and diligence in inspecting and reporting on the property.']

Ratio Decidendi

The Magistrate indicated her reasoning sufficiently and did not commit an error of law. She was entitled to prefer the eyewitness evidence of Mr and Mrs Kettley about the brickwork, to accept the view that a prudent builder should have alerted the purchasers to the discoloured bricks and possible causes, and to find that the defendant's report fell below the required standard because it made no reference to the discoloured bricks or further diagnostic steps. The appellant did not discharge the onus of showing inadequate reasons or other error of law, so the Magistrate's determination was affirmed and the summons dismissed.

Court Disposition

Magistrate's determination affirmed; summons dismissed; appellant ordered to pay respondents' costs.

Orders

  • ["I affirm the Magistrate's determination in respect of which the case was stated." 'The summons is dismissed.' "The appellant is to pay the respondents' costs."]