Zhao v Goodman & Anor [2010] NSWCA 2

Zhao v Goodman & Anor [2010] NSWCA 2

The appeal failed because the primary judge's key findings were open on the evidence and were substantially founded on credit findings adverse to the appellant. The appellant did not identify incontrovertible facts, uncontested testimony, glaring improbability or compelling inferences sufficient to overturn the findings that the Home Building Contract governed the parties' relationship, that the appellant's work was defective and caused the relevant loss, and that the respondents had paid more than the amount to which the appellant was entitled under the contract and any asserted variations.

Jurisdiction
Australia
Judgment Date
05 February 2010
Procedural Posture
Building Contract Appeal / Appeal to the New South Wales Court of Appeal From District Court Orders Made by Johnstone DCJ on 1 October 2008
Outcome
Appeal dismissed with costs.
Legal Topics
['identification of Building Contract' 'residential Building Warranties' 'defective Building Work' 'rectification Damages' 'unpaid Works and Variations' 'appellate Review of Credit Findings']
['contracts' 'building and Construction' 'evidence' 'civil Procedure'] ['identification of Building Contract' 'residential Building Warranties' 'defective Building Work' 'rectification Damages' 'unpaid Works and Variations' 'appellate Review of Credit Findings']

Case Brief

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Procedural Posture

Building Contract Appeal / Appeal to the New South Wales Court of Appeal From District Court Orders Made by Johnstone DCJ on 1 October 2008

Legal Issues

  1. 1 ["Whether the primary judge erred in finding that the Home Building Contract dated 1 February 2000 governed the parties' building contract rather than an itemised quotation and oral terms." 'Whether the primary judge erred in finding that the appellant was negligent and in breach of warranty in relation to drip grooves, waterproofing, cement render, termite protection, sub-floor ventilation and completion of the garage ceiling.' 'Whether the appellant could rely on instructions from the respondents as a defence to alleged defects.' "Whether the primary judge erred in rejecting the appellant's cross-claim for unpaid works, variations and quantum meruit." 'Whether the appellant established a basis for appellate intervention in findings depending on credit.']

Ratio Decidendi

The appeal failed because the primary judge's key findings were open on the evidence and were substantially founded on credit findings adverse to the appellant. The appellant did not identify incontrovertible facts, uncontested testimony, glaring improbability or compelling inferences sufficient to overturn the findings that the Home Building Contract governed the parties' relationship, that the appellant's work was defective and caused the relevant loss, and that the respondents had paid more than the amount to which the appellant was entitled under the contract and any asserted variations.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']