Building contract – negligence – plaintiff sued defendants for defective concrete paving at container terminal – first defendant cross claimed against second defendant for same damage – contractual warranties – assignment – apportionment – estoppel – estoppel by convention – ascertainment of parties to contact – damages – Competition and Consumer Act 2010 (Cth) – Civil Liability Act 2002 (NSW) – Home Building Act 1989 (NSW) – Trade Practices Act 1974(Cth) – held: plaintiff entitled to damages from first defendant for costs in relation to replacement of pavement – second defendant liable to pay to first defendant amount which first defendant was liable to pay to plaintiff.
Tzaneros

Court of Appeal of New South Wales
Bathurst CJ, Macfarlan JA & Tobias AJA

Professional negligence – solicitors’ duties – respondent property developer sued appellant lawyers for allegedly negligent advice (“restructure advice”) in relation to purchase of property – primary judge found in favour of respondent – causation – post-caveat advice – “independent unreasonable conduct” – held: no error in primary judge’s finding that restructure advice was negligent and that negligence caused respondent’s loss – appellants precluded from raising argument as to unreasonable conduct and causation for first time on appeal – no error established by primary judge in relation to costs – appeal dismissed.
Consolidated Lawyers Ltd

Contract – construction contract – linked agreements – applicant and respondent entered two linked agreements by which applicant would build shed for respondent and respondent would build boat for applicant – applicant contended he built shed but respondent’s company did not pay full amount as required – applicant also contended respondent did not build boat as required – applicant sued respondent and company for damages for breach of contract – proceedings dismissed for want of prosecution – applicant sought leave to appeal – whether appeal necessary to correct substantial injustice – whether reasonable argument there was error – delay – prejudice – s118(3) District Court of Queensland Act 1967 (Qld) – rr5, 214(2)(e), 280, 389 & 444 Uniform Civil Procedure Rules 1999 (Qld) – held: primary judge erred in finding circumstances warranted dismissal – dismissal of claim amounted to substantial injustice – leave to appeal granted – appeal allowed.
Pittaway

Real property – easements – respondent owned property which he subdivided into two properties- appellant purchased one of the properties – respondent continued to use road (Road A) leading from his property through appellant’s property by informal agreement – by informal agreement respondent constructed another road (Road D) which crossed appellant’s property – appellant denied respondent permission to cross her property – respondent granted statutory right of user for Road A and Road D pursuant to s180Property Law Act 1974 (Qld) – appellant sought to appeal – held: in the circumstances Road D was not “reasonably necessary in the interests of the effective use” of respondent’s property – preference for Road D did not meet test under s180 – appeal in allowed in relation to easement over Road D allowed.
Bradshaw

Building contract – action arising out of written contract for construction of residence – plaintiff was builder and defendants were owners – builder terminated for alleged failure to comply with contractual requirement to supply evidence of owners’ capacity to pay required amount – whether builder’s termination valid – held: builder not entitled to insist that Owners provide evidence of capacity to pay amount or to rely on alternative provision to support validity of termination of the contract – owners entitled only to nominal damages in relation to claim for damages for repudiation.
R Developments