Goulding & Anor v Kirby [2002] NSWCA 393

Goulding & Anor v Kirby [2002] NSWCA 393

Leave to appeal was refused because the alleged defective painting was cosmetic, small and correctable by repainting, not a latent structural defect or a defect with structural potential, and the appellants were not shown to be unable to take reasonable steps to protect themselves. The Court declined, as an intermediate appellate court, to extend Bryan v Maloney to such facts.

Jurisdiction
Australia
Judgment Date
09 December 2002
Procedural Posture
Negligence Claim for Economic Loss Arising From Allegedly Defective Painting Work / Application for Leave to Appeal, With the Appeal to Be Heard Concurrently If Leave Were Granted, From the District Court Dismissal of the Claim
Outcome
Leave to appeal refused.
Legal Topics
['duty of Care for Subsequent Purchasers' 'latent Defects' 'defective Building Work' 'defective Painting Work' 'leave to Appeal']
['negligence' 'tort Law' 'pure Economic Loss'] ['duty of Care for Subsequent Purchasers' 'latent Defects' 'defective Building Work' 'defective Painting Work' 'leave to Appeal']

Case Brief

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Procedural Posture

Negligence Claim for Economic Loss Arising From Allegedly Defective Painting Work / Application for Leave to Appeal, With the Appeal to Be Heard Concurrently If Leave Were Granted, From the District Court Dismissal of the Claim

Legal Issues

  1. 1 ['Whether the respondent painter owed the appellants, as subsequent purchasers of the house, a duty of care in negligence for pure economic loss caused by defective internal painting work.' 'Whether Bryan v Maloney should be extended beyond latent structural defects to defective painting work with a cosmetic function.' 'Whether the appellants were unable to take reasonable steps to protect themselves against the alleged loss.' 'Whether leave to appeal should be granted where the rectification cost was below the monetary threshold and the appeal was otherwise incompetent.']

Ratio Decidendi

Leave to appeal was refused because the alleged defective painting was cosmetic, small and correctable by repainting, not a latent structural defect or a defect with structural potential, and the appellants were not shown to be unable to take reasonable steps to protect themselves. The Court declined, as an intermediate appellate court, to extend Bryan v Maloney to such facts.

Court Disposition

Leave to appeal refused.

Orders

  • ['Leave to appeal refused.' "Appellants to pay Respondent's costs."]