The White Ant Co Pty Ltd v Robson [2015] NSWCA 345

The White Ant Co Pty Ltd v Robson [2015] NSWCA 345

The liability provision in the deed (clause 6) is only enlivened where a conclusive determination has been made, consistent with clause 1, that the termite infestation was due to negligent work or breach of contract by the contractor; since no such conclusive determination was made, and the respondents' pleadings and case did not support liability on any broader basis, the appeal was allowed, and the respondents' claim dismissed.

Parties
Appellant: The White Ant Co Pty Ltd; First Respondent: Michael Robson; Second Respondent: Judith Robson
Jurisdiction
Australia
Judgment Date
10 November 2015
Procedural Posture
Civil Appeal / Appeal From District Court to Court of Appeal
Outcome
Appeal allowed, claim dismissed, cross-claim dismissed with no order as to costs of the cross-claim
Legal Topics
Construction of Deeds, Contractual Liability, Breach of Contract, Estoppel
Contract Construction of Deeds Contractual Liability Breach of Contract Estoppel

Case Brief

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Parties

The White Ant Co Pty Ltd

Appellant

Michael Robson

First Respondent

Judith Robson

Second Respondent

Procedural Posture

Civil Appeal / Appeal From District Court to Court of Appeal

Legal Issues

  1. 1 Whether the liability provision of a deed could be enlivened otherwise than by operation of other provisions of the deed
  2. 2 Whether the respondents had pleaded that the appellant was liable on some basis other than the terms of the deed
  3. 3 Proper construction of the deed's operative liability clause

Ratio Decidendi

The liability provision in the deed (clause 6) is only enlivened where a conclusive determination has been made, consistent with clause 1, that the termite infestation was due to negligent work or breach of contract by the contractor; since no such conclusive determination was made, and the respondents' pleadings and case did not support liability on any broader basis, the appeal was allowed, and the respondents' claim dismissed.

Court Disposition

Appeal allowed, claim dismissed, cross-claim dismissed with no order as to costs of the cross-claim

Orders

  • Revoke leave to appeal insofar as the appeal relates to the quantification of damages.
  • The appeal be allowed.