Seymour & Anor v Drill Engineering & Pastoral Company Pty Ltd [2023] QCA 159

David Pearce  |  Elissa Morcombe  |  Spencer Hayward

Key takeout

When preparing a construction case for trial it is important to ensure that all reasonably available evidence relevant to the facts in issue, including any expert evidence, is put before the court at first instance. 

Further evidence can only be adduced on appeal where the evidence could not have been obtained ‘with reasonable diligence for use at trial’, the evidence is of such significance that it would have an ‘important influence on the result of the case’ and the evidence is credible although not necessarily ‘incontrovertible’.

Facts

This is an appeal by Seymour against the decision in Drill Engineering & Pastoral Co Pty Ltd v Seymour [2022] QDC 136. We reported on the court’s original decision in 2022 Drilling down on expert evidence.

Drill Engineering & Pastoral Company Pty Ltd (Depco) sued Seymour for the price of drilling a bore on Seymour’s property near Winton in 2017.  A contract between the parties was formed when Seymour orally accepted Depco’s written quotation for the work. The parties agreed that Depco would drill to approximately 1200m at a rate of $265 per metre plus GST, in the hope of tapping artesian water. Drilling began in July 2017 and after a short break resumed and continued until 9 September 2017. When drilling stopped the bore hole was 1,388m deep and no water had been tapped. Depco issued an invoice for $335,896 which Seymour refused to pay. 

The court found that Depco was entitled to payment under the contract.  At first instance the court found that much of the opinion evidence given by Seymour’s expert was inadmissible. Seymour appealed on multiple grounds, including the incompetence of counsel and alleged errors by the primary judge relating to the terms of the contract, the legality of the work, the quality of its performance and the circumstances which led to work stopping.

Decision

The appeal was dismissed with costs.

From a construction law perspective, the two most relevant grounds of appeal arose from the allegations relating to the terms of the contract and the performance of the contractual obligations.

Terms of the contract

Seymour alleged that the trial judge erred in finding that Depco made no promise as to whether artesian water would be tapped. Seymour argued the entire contract required the construction of a bore of about 1,200 metres in depth, reaching artesian water and establishing a flowing bore. Seymour contended that the ‘agreement’ to reach bore water was an implied term of the contract or alternatively was incorporated into the contract by variation.  

The Court of Appeal dismissed this argument and said it was a ‘wishful interpretation’ for which there was no factual basis. It could not be said that the ‘object’ of the work was a ‘requirement’ which must have been fulfilled. The Court of Appeal also criticised Seymour for failing to advance this interpretation earlier. It was a matter which, when raised took Depco by surprise, should have been specifically pleaded in accordance with Rule 149(1)(c) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

The performance of contractual obligations

Seymour alleged that the trial judge erred in failing to find that Depco had not constructed and completed a water bore in accordance with the terms of the contract.  The Court of Appeal noted that while this ground of appeal echoed the former, it raised a different complaint.  Specifically, that if Depco had carried out its work competently and in accordance with the contract, free-flowing bore water would have been struck. This factual conclusion was not raised at trial nor was it established by evidence. As a consequence, Seymour applied for leave under Rule 766(1)(c) of the UCPR to rely upon evidence of a seasoned bore driller which Seymour engaged after the trial, and who succeeded in drilling a bore and tapping water at a nearby location on the property.  

For the Court of Appeal to receive further evidence on appeal there must be special grounds and three conditions must be met. First, it must be shown that the evidence could not have been obtained ‘with reasonable diligence for use at trial’. Second, the evidence must be of such significance that it would have an ‘important influence on the result of the case’. Third, the evidence must be apparently credible although not necessarily ‘incontrovertible’.  

The Court of Appeal found the evidence Seymour wished to lead as part of the appeal could have been acquired prior to trial.  Evidence that a bore may strike artesian water in one location does not mean a bore drilled nearby will also strike water.  Had this evidence been lead at trial it would not have had an important influence on the result of the case.