WINROBE PTY LTD v SUNDIN'S BUILDING CO PTY LTD [No 3] [1993] NSWCA 290

WINROBE PTY LTD v SUNDIN'S BUILDING CO PTY LTD [No 3] [1993] NSWCA 290

The contractor breached its design obligations by failing to remedy the defect arising from encroachment on the rights of carriageway. The principal validly terminated the contract under CL31 after the contractor failed to comply with the notice. Damages were properly assessed for breach of warranty and for the contractor's failure to redesign and reconstruct so as not to interfere with the rights of carriageway.

Parties
Principal: Winrobe Pty Ltd and Simpost Pty Ltd; Contractor: Sundin's Building Co Pty Ltd
Jurisdiction
Australia
Judgment Date
04 May 1993
Procedural Posture
Appeal and Cross Appeal / Judgment on Appeal
Outcome
Appeal allowed; cross appeal dismissed; judgment and orders of Giles J set aside in part; proceedings remitted to Construction List for further assessment of damages if any; respondent to pay costs of trial and appeal except reserved costs.
Legal Topics
Termination and Repudiation, Contractor's Design Obligations, Breach of Warranty, Damages Assessment, Estoppel
Contract Law Construction Law Termination and Repudiation Contractor's Design Obligations Breach of Warranty Damages Assessment Estoppel

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Parties

Winrobe Pty Ltd and Simpost Pty Ltd

Principal

Sundin's Building Co Pty Ltd

Contractor

Procedural Posture

Appeal and Cross Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the contractor failed its obligation to redesign and construct works to avoid encroachment on rights of carriageway
  2. 2 Whether the principal validly terminated the contract under CL31(b)
  3. 3 Whether the contractor was in breach of its warranty under CL20 regarding due care and skill in design

Ratio Decidendi

The contractor breached its design obligations by failing to remedy the defect arising from encroachment on the rights of carriageway. The principal validly terminated the contract under CL31 after the contractor failed to comply with the notice. Damages were properly assessed for breach of warranty and for the contractor's failure to redesign and reconstruct so as not to interfere with the rights of carriageway.

Court Disposition

Appeal allowed; cross appeal dismissed; judgment and orders of Giles J set aside in part; proceedings remitted to Construction List for further assessment of damages if any; respondent to pay costs of trial and appeal except reserved costs.

Orders

  • Judgment and orders of Giles J of 18 December 1990 and 18 October 1991 (as to contractor's damages and costs) set aside.
  • Proceedings remitted to the Common Law Division Construction List for assessment of any further damages under CL31(b) or for breach of contract.