Drake v Wahoo Pools Pty Ltd (No 2) [2015] NSWSC 536

Drake v Wahoo Pools Pty Ltd (No 2) [2015] NSWSC 536

The Magistrate's findings regarding the formation and terms of the contract were findings of fact, not amenable to appeal on a question of law; the construction of the written contract revealed no legal error; the question of damages was predominantly factual, and any error regarding the applicable regulation was not sufficiently material to warrant allowing the appeal or granting leave.

Parties
Plaintiff: Marianne Drake; First Defendant: Wahoo Pools Pty Ltd; Second Defendant: Adam John Rubagotti
Jurisdiction
Australia
Judgment Date
12 May 2015
Procedural Posture
Appeal / Judgment on Appeal From Local Court to Supreme Court Under Ss 39 and 40 of the Local Court Act 2007 (nsw)
Outcome
Appeal dismissed
Legal Topics
Construction of Contract, Damages, Negligence, False and Misleading Conduct, Appeal—error of Law or Mixed Fact and Law, Statutory Warranties, Expert Evidence
Contract Law Tort Law Consumer Law Construction of Contract Damages Negligence False and Misleading Conduct Appeal—error of Law or Mixed Fact and Law +2 more

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Parties

Marianne Drake

Plaintiff

Wahoo Pools Pty Ltd

First Defendant

Adam John Rubagotti

Second Defendant

Procedural Posture

Appeal / Judgment on Appeal From Local Court to Supreme Court Under Ss 39 and 40 of the Local Court Act 2007 (nsw)

Legal Issues

  1. 1 Whether the Local Court erred in failing to find that the plans prepared by Mr McKee formed part of the contract terms
  2. 2 Whether the Local Court erred in its assessment of damages applicable to the defective pool
  3. 3 Whether the wrong version of the Home Building Regulation 2004 (NSW) was applied at first instance and whether this constituted error of law or of mixed fact and law

Ratio Decidendi

The Magistrate's findings regarding the formation and terms of the contract were findings of fact, not amenable to appeal on a question of law; the construction of the written contract revealed no legal error; the question of damages was predominantly factual, and any error regarding the applicable regulation was not sufficiently material to warrant allowing the appeal or granting leave.

Court Disposition

Appeal dismissed

Orders

  • The appeal of the plaintiff is dismissed.