WINTOUR v ALLEN [1990] NSWCA 188

WINTOUR v ALLEN [1990] NSWCA 188

The respondent, as a civil engineer, performed the contract in accordance with the appellant's instructions, including preparation and lodgment of plans with Council in line with a compromise over required levels. The trial judge was entitled to prefer the respondent's evidence over the appellant's where there was conflict, particularly in light of correspondence and conduct. The judge's exercise of discretion to refuse adjournment was not shown to be in error. Delays and ambiguities were found to be attributable in part to instructions and external procedural complications, not the respondent's lack of diligence or professionalism. The appeal therefore fails on all grounds.

Parties
Appellant: Wintour; Respondent: Allen
Jurisdiction
Australia
Judgment Date
22 May 1990
Procedural Posture
Civil Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
Engineer's Fees, Performance of Contract, Adjournment, Reasonable Time in Contract, Professional Standards
Contract Law Professional Negligence Engineer's Fees Performance of Contract Adjournment Reasonable Time in Contract Professional Standards

Case Brief

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Parties

Wintour

Appellant

Allen

Respondent

Procedural Posture

Civil Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the trial judge erred in refusing an adjournment to the appellant.
  2. 2 Whether the respondent performed the engineering work entitling him to payment under contract.
  3. 3 Whether the respondent performed his contractual obligations within a reasonable time.

Ratio Decidendi

The respondent, as a civil engineer, performed the contract in accordance with the appellant's instructions, including preparation and lodgment of plans with Council in line with a compromise over required levels. The trial judge was entitled to prefer the respondent's evidence over the appellant's where there was conflict, particularly in light of correspondence and conduct. The judge's exercise of discretion to refuse adjournment was not shown to be in error. Delays and ambiguities were found to be attributable in part to instructions and external procedural complications, not the respondent's lack of diligence or professionalism. The appeal therefore fails on all grounds.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal is dismissed with costs.