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The Owners Strata Plan 98726 v Elite Realty
Development Pty Ltd (No 3)
This case demonstrates the basics of how the courts
approach compensation for defects and is useful as a
reminder to contractors and builders to remain aware of
trial awards, as well as the potential expenses.
[View Casewatch PDF]
The Owners Strata Plan No 64757 v Sydney
Remedial Builders Pty Ltd
This NSW Court of Appeal judgement
demonstrates the importance of statutory time limitations
on bringing a case to court, and how regardless of the
contractual expression of completion or practical
completion, delay can erode your rights.
[View Casewatch PDF]
Martinus Rail Pty Ltd v Qube Re Services (No 2) Pty
Ltd
This case provides a basic breakdown of how courts
approach a Principal's entitlements to draw on
unconditional Bank Guarantees and Undertakings, and
highlights the way contractual wording can affect those
rights by distinguishing whether the contractual regime is
intended to provide security or a risk
allocation device, or both.
[View
Casewatch PDF]
Parkview Constructions Pty Ltd v Futuroscop
Enterprises Pty Ltd
This case demonstrates the Court's Powers to step in
and decide dates for practical completion where
contractual processes are not followed with precision. It
also highlights the importance of proper documentation in
contract administration.
[View Casewatch PDF]
V601 Developments v Probuild Constructions (Aust)
This decision of the Victorian Supreme Court highlights
the conflict of interest issues for Superintendents or
other entities carrying both assessment and certification
and contract administration roles.
[View Casewatch PDF]
Electricity Networks Corporation v Herridge Parties
This decision suggests that a statutory authority may have
a duty of care for all relevant systems within their
control even when the work is contracted to a third party;
particularly where they have ‘stepped into the arena’ in
exercise of their duties.
[View Casewatch PDF]
Westgem Investments -v- Commonwealth Bank
This case highlights two important issues. The definition
of practical completion can vary between different
agreements for the same project (in this chase the
building head contract and the overall finance agreement).
Cost overruns do not need to realized to allow action to
be taken, the finance contract was terminated based on a
forecast cost overrun calculated from the actual costs to
date plus forecast costs to complete.
[View Casewatch PDF]
Thiess v Mirvac
This case confirms that the contractor bears the risks of
achieving contract performance even if performance becomes
significantly more costly or difficult than expected. From
the contractor's perspective, it is important to avoid
unconditionally agreeing to discharge uncertain
obligations.
[View
Casewatch PDF]
Lanskey Constructions v Westrac
This case shows the courts reluctance to prevent a party
holding bank guarantees from calling on them to offset a
claimed debt (provided the alleged debt is reasonable),
and the recognition of Bank guarantees as an important
commercial mechanism to mange risk in construction.
[View Casewatch PDF]
CFMEU v Personnel Contracting Pty Ltd
This High Court judgement highlights the difference
between an employee and an independent contractor, see
also ZG Operations Australia Pty Ltd & Anor v
Jamsek & Ors [2022] HCA 2.
[View Casewatch PDF]
Turner v Perth Block & Bricklaying Pty Ltd
This case highlights the importance of
professional standards. Simply following a defective
specification will not absolve a builder from its
professional responsibilities.
[View Casewatch PDF]
Key Infrastructure Australia v Bensons Property
This case serves to underscore the requirement for
parties seeking to rely on the prevention principle, to
establish that the party was actually prevented from
completing their responsibilities under the contract.
[View
Casewatch PDF]
Bedrock Constructions v Crea
This case reinforces the primacy of the contract in
determining disputes in construction matters; and that the
right to claim damages for the rectification of defects is
governed by the contract terms which permit access for
rectification. It is also important for a party to plead
its case in the most favourable manner to obtain the full
benefit of the contractual protection..
[View
Casewatch PDF]
Brighton Australia Pty Ltd v Multiplex Constructions
The case highlights the approach recently taken by the
Victorian Supreme Court of Appeal when assessing claims
under the s.18 of the Australian Consumer Law (ACL)
regarding express representations made within a Building
and Construction Contract. This case highlights the Courts
restrictive approach in interpreting contracts that
attempt to limit a party’s rights under the ACL.
[View
Casewatch PDF]
Stepanoski v Aslan
The New South Wales Supreme Court deciding which
Construction Contract is in existence and binds the party
in the situation where a Cost-Plus contract was in
existence, and the parties’ executed a lump sum contract
some months later and backdated it to the date of the
Cost-Plus Contract.
[View
Casewatch PDF]
Mann v Paterson Constructions Pty Ltd
The Victorian Supreme Court of Appeal decision on a claim
made in quantum meruit as a result of one party accepting
the repudiation of contract made by the other party. The
Court will have regard to actual costs when assessing the
amount payable, however is not bound by the actual cost
under contract, as the contract has ceased. In addition,
the case further highlights that claims in quantum meruit
for variations are not precluded under s.38 of the
Domestic Building Contracts Act 1995, where the variation
is one that has been agreed to orally.
[View Casewatch PDF]
Champion Homes v Commissioner for Fair Trading
The case highlights the strict disciplinary liability upon
the Builder in relation to the work of its subcontractors.
[View Casewatch PDF]
Liquidated damages - overview
A brief summary of the differences between 'liquidated
damages' and unenforceable penalty clauses in contracts.
[View Casewatch PDF]
Metricon Homes v Hooper
Metricon failed in its bid to overturn a VCAT damages
award over damage to a Tarneit house from slab-heave
caused by a poorly constructed concrete slab.
[View Casewatch PDF]
Mushroom Composters v Robertson
This case from the NSW Court of Appeal highlights the
importance of identifying in a contract all essential
terms as finally agreed in order to avoid the contract
being unenforceable.
[View
Casewatch PDF]
Haridemos v Labathas
The ACT Supreme Court has determined that when deciding
whether an appointed person is an expert to make his
expert determination or an arbitrator to make his award,
the Court will look at the function, decision, and facts
such as: the words used, the requirement stated in the
Deed, and the qualification of the appointed person. The
Court concluded that the parties agreed to appoint an
expert. As a result, it was held that the Court does not
have jurisdiction to hear an appeal from an expert
determination.
[View
Casewatch PDF]
Koompathtoo Local Aboriginal Land Council v Sanpine
Pty Limited
Koompathtoo were able to establish that the number of
breaches of non essential contract terms by Sanpine were
many and their consequences serious. The termination of
the contract was justified as the breaches deprived
Koompathtoo of a substantial part of benefit for which it
contracted.
[View
Casewatch PDF]
The Owners - Strata Plan No 76674 v Di Blasio
The News South Wales Supreme Court recently expounded on
the duty of a building owner to “act reasonably” in
mitigating the losses suffered by it as a result of a
builder’s breach of the building contract. In so doing,
the Court looked into the parties’ conduct in assessing
whether the building owner provided the builder with a
“reasonable opportunity” to rectify building defects and
whether the builder may be considered to have failed in
taking “reasonable steps” to undertake rectification of
the defects.
[View
Casewatch PDF]
Electricity Generation Corporation -v- Woodside Energy
Ltd
Verve Energy (the buyer) and Woodside (the seller) were
parties to a long term gas supply contract which required
Woodside to “use reasonable endeavours” in order to make
additional gas available subject to all of their relevant
commercial imperatives. But was is interpretation of the
“reasonable endeavours” clause?
[View Casewatch PDF]
Crown Melbourne Limited v Cosmopolitan Hotel
Cosmopolitan were tenants of Crown Melbourne and their
leases did not contain an option to renew. Cosmopolitan
contended that landlord gave them oral assurances that if
they undertook major refurbishment works they would be
‘looked after with a further term’ and soon after the
refurbishment they received a notice to vacate. Was the
oral assurance enforceable?
[View Casewatch PDF]
McCloy v Manukau Institute of Technology
The New Zealand High Court has recently clarified the
effect of “step in” clauses which are sometimes found in
construction contract default clauses or in tripartite
deeds. Parties should be vigilant to register their
interests on the Personal Properties Securities Register.
[View
Casewatch PDF]
Verve Energy -v- Woodside Energy Ltd
The Western Australian Court of Appeal provides clear
guidance regarding “reasonable endeavours” clauses in the
context of the contract and the importance of those
obligations.
[View Casewatch PDF]
Perpetual_Trustee-v-CTC Group (No 2)
The New South Wales Court of Appeal decision has recently
demonstrated a firmer approach to the exclusion of the
apportionment provisions of the Civil Liability Act 2002
which has significant implications for contract managers
when settling the terms of a construction or other
contract.
[View Casewatch PDF]
Leighton v Arogen
The New South Wales Court of Appeal decision has recently
demonstrated that the Court is reluctant to grant
mandatory interlocutory relief but will do so if necessary
on the balance of convenience factors.
[View
Casewatch PDF]
North Sydney Leagues Club v Syndegy Protection Agency
The New South Wales Court of Appeal has recently reaffirms
the principle that in the event of a contract being
wrongfully terminated, the plaintiff is entitled to such
damages that would place them in the same position as it
would have been had the contract been preformed. Claims
should be carefully calculated to give full legal
recovery.
[View Casewatch PDF]
Spiers Earthworks v Landtec Projects
The Supreme Court of Western Australia has recently
reaffirmed that liquidated damages may be void as
penalties. If challenging a liquidated damage clause a
full review of the circumstances at the time the contract
should be conducted.
[View Casewatch PDF]
Precision Coating Services v Building Equipment
Services
The New South Wales Supreme Court has recently confirmed
that a finding based on no evidence constitutes an error
of law. Contract Managers should ensure that even the
obvious is fully proved.
[View Casewatch PDF]
Machkevitch v Andrew Building Constructions
The New South Wales Supreme Court has recently confirmed
that construction contracts include any arrangement which
gives rise to an obligation to pay for construction work.
[View Casewatch PDF]
McGrath Corporation Pty Ltd V. Global Construction
Management Pty Ltd & Ian Vincent Taylor
The Supreme Court of Queensland recently held that a
project manager who was late in reporting non performance
of a subcontractor to a principal was 50% responsible for
the resulting loss and expense. Project Managers should be
careful to fully document the warnings given to their
principals to avoid the meltdown if things go amiss later.
[View
Casewatch PDF]
Laing O'Rourke (BMC) Pty Ltd -v- Kirwin
The Western Australian Supreme Court has recently
confirmed the duty of employers to take all practicable
steps to protect employees but declined to expect design
checks on principal supplied accommodation. This realistic
approach continues the trend and comments adopted in
Kirk’s case (below) and comes as a relief to employers
trying to develop realistic safety programs.
[View
Casewatch PDF]
2144 Broke Road v ACN 062 859 358 (previously Austec
Panel Systems Australia Pty Limted)
The Supreme Court of New South Wales has recently examined
the range of damages which a plaintiff may claim as part
of its loss and the effect of not notifying a party to a
contract of the potential loss. This case illustrates it
is important to ensure the other party is aware of the
potential losses if the other party breaches the contract
and will have immediate impact on the way in which parties
to agreements put one another on notice of the potential
loss in order to preserve their rights in the event of a
claim.
[View Casewatch PDF]
Kell & Rigby Holdings Pty Limited v Lindsay
Bennelong Developments Pty Ltd
The Supreme Court of New South Wales has recently examined
the impact of a Superintendent’s conduct when it may be
considered as unfair to the contractor, and consequently
impact on contractual rights of the Principal. This case
will have immediate impact on the way in which contract
administrator’s and superintendents interact and
administer their contracts. Careful advice is necessary
before acting in the interests of the Principal only.
[View Casewatch PDF]
Kirk v Industrial Relations Commission
The High Court of Australia has recently made a major
statement on the appropriate approach to be taken to the
onus of proof for industrial and other offences and eased
what has been a substantial burden on employers in the
past. This case will have immediate impact on the way in
which prosecutions under the OH&S legislations are
conducted, as well as the range of cases which are likely
to be prosecuted by the relevant authorities.
[View Casewatch PDF]
Costain Limited v Charles Haswell & Partners Pty
Limited
The England and Wales High Court has recently examined a
contractor’s entitlement to seek reimbursement for
prolongation costs incurred by it as a result of failed
engineering advice. Whilst the Court was satisfied that
there was a likely delay as a result of Haswell’s advice,
it was not satisfied that Costain satisfied the tests
required to establish an entitlement to general site
overheads as prolongation costs.
[View Casewatch PDF]
For more detailed consideration, see: Assessing Delay and Disruption -
Tribunals Beware.
Strata Plan v Reed
The New South Wales Supreme Court has recently confirmed
the application of the Home Building Act (1989), and the
statutory warranties provided for by that statutory
regime, as being applicable to subsequent owners of
properties falling within the scope of that Act. This case
will have immediate impact on builders who need to be
aware of the scope of their liability and warranties
provided in respect of their work.
[View
Casewatch PDF]
Southern Cross Constructions v Salfa
The New South Wales Supreme Court has recently examined
examined a contractor’s rights to secure payment under a
building contract, which might otherwise have not been
possible due to the restrictions provided under the Home
Building Act 1989. This case will have immediate impact on
those procuring and securing payment for building work on
residential dwellings, in these tough times.
[View
Casewatch PDF]
Roluke v Lamaro
The New South Wales Supreme Court has recently examined
the heads of damages which a party may claim in respect of
a diminution in market value by reason of faulty
workmanship and found that the Courts may allow for an
additional head of damage, namely, diminution in market
value to the structure where a nexus can be shown between
the defective workmanship and the reduced market value.
[View
Casewatch PDF]
Dualcorp v Remo
This case illustrates that where a contract provides for a
vague procedure for dispute resolution (through a poorly
drafted dispute resolution mechanism), the Courts are not
willing to allow an obscure and uncertain clause to
operate to exclude the jurisdiction of the Court,
particularly in circumstances where the clause on its
interpretation is not reflective of the parties’ apparent
intentions.
[View
Casewatch PDF]
Lumbers v Cook
This case demonstrates the traditional position that in
normal circumstances a subcontractor will have no claim
against a property owner for work done on the property. If
the subcontractor wished to have payment secured by the
property owner a separate agreement or special
relationship would be required.
[View
Casewatch PDF]
Multiplex Constructions UK v Honeywell Control Systems
The English High Court has recently examined the
entitlement of contractors to extensions of time with
respect to the preventative conduct of principals and the
impact of that conduct on whether time is at large. This
case illustrates that careful contract administration is
necessary to avoid loss of entitlement to extension of
time by a contractor.
[View Casewatch PDF]
Perum Building Construction v Tallenford
This case illustrates the importance of understanding the
terms of the contract, clearly defining the nature of the
contract, the scope of work, and also underlines the
importance of negotiation of the contract terms ensuring
that there are adequate provisions to accommodate latent
conditions, variations or misdescriptions.
[View Casewatch PDF]
Sweeney v Boylan Nominees
This case illustrates the importance of proper engagement
of contractors in order that the principal is not
vicariously liable for the contractors default. The terms
of engagement should clarify the varying indicia of the
independent contractor, no control over way in which the
work was done, the contractor’s provision of tools,
equipment, uniform, transport and payment for services
rendered and whether the contractor is to be presented as
part of the defendant’s organization.
[View
Casewatch PDF]
Houghton v Arms
This case illustrates the reach of the Fair-Trading
legislation and the remedies available against individual
employees for misleading or deceptive conduct they are
alleged to have performed as part of their employment. It
may have interesting application to officers of a company
who mislead others into trading with the company just
prior to administration or winding up.
[View
Casewatch PDF]
Thiess v Placer
This case stands for the proposition that good faith
involves goodwill, co-operation and honesty between the
parties and this extends to the reasonableness and
fairness in pricing.
[View
Casewatch PDF]
Royal Botanic v South Sydney
The boundaries of the duty of good faith have yet to be
fully determined but the Courts expect fairness and
reasonableness from the parties.
[View Casewatch PDF]
John Holland v Majorca
This case stands for the proposition that Architects do
not owe a duty of care, and are not directly liable, to
Builders under a JCC Contract.
[View
Casewatch PDF]
Hughes v Air Services
This case stands for the proposition that the Courts
expect a standard of fairness in contracts. A duty upon
the parties of good faith and fair dealing in the
performance of contracts may be implied and compliance
with agreed tender process is covered by the duty.
[View
Casewatch PDF]
Far Horizons v McDonalds
This case stands for the proposition that an implied duty
of good faith obliges each party to a contract to exercise
the powers conferred upon it in good faith or reasonably,
and not capriciously or for some extraneous purpose.
[View Casewatch PDF]
Baulderstone v Qantas
This case stands for the proposition that a Superintendent
must carefully consider and resolve a Contractor’s claim
on its merits and must not be unfairly influenced by the
Principal. Further, a construction programme is likely to
be considered by the Courts as a statement of intention or
expectation rather than a contractually binding timeframe.
[View
Casewatch PDF]
Alcatel v Scarcella
This case stands for the proposition that a duty of good
faith, both in performing obligations and exercising
rights may, by implication, be imposed upon parties as
part of a contract. It extends to prohibit unreasonably
encouraging third parties to improve obligations on the
other contracting party for factual advantage.
[View
Casewatch PDF]
Kane v Sopov
This case stands for the proposition that where the
Superintendent does not act fairly and independently of
the Principal the Courts may determine that the
Superintendent is not acting fairly.
[View Casewatch PDF]
Overlook v Foxtel
This case stands for the proposition that the duty of good
faith is best regarded as an obligation not to act in bad
faith.
[View
Casewatch PDF]
State of NSW v Coya
This case stands for the proposition that a Principal may
be liable for the Superintendent’s failure to properly
consider and properly value variation claims but not to
ensure he/she is always correct.
[View
Casewatch PDF]
Renard v Minister for Public Works
This case stands for the proposition that reasonableness
may overlap and be indistinguishable from good faith.
Accordingly, in the event of a Contractor’s challenge to
the reasonableness of a direction by a Principal, it is
important to consider both the reasonableness of the
Principal’s actions and whether the Principal was acting
in good faith.
[View Casewatch PDF]
Perini v Commonwealth
This case stands for the proposition that the Courts
usually imply a term into the contract that the
Superintendent will act, and the Principal shall ensure
that the Superintendent will act, in a fair, unbiased and
competent manner.
[View
Casewatch PDF]
Esso v Southern (Appeal)
This case confirms the proposition that a party may breach
its duty of good faith if it acts unreasonably,
capriciously, or in the pursuit of an ulterior purpose.
Further, a duty of good faith is likely only to arise
where a party is vulnerable or at a disadvantage.
[View
Casewatch PDF]
Esso v Southern
This case stands for the proposition that the content of
the duty of good faith encompasses two concepts; the
prohibition of a party from exercising a contractual power
capriciously or for an extraneous purpose, and the
obligation to refrain from acting in 'bad faith'. See
appeal aove.
[View
Casewatch PDF]
ABB Power v Chapple
This case confirms the proposition that for 'the
appropriate enquiry' for the purposes of determining an
entitlement to quantum meruit is whether the recipient of
the relevant services should have objectively realised he
would be expected to pay for them.
[View
Casewatch PDF]
Turner v Co-ordinated
This case confirms that for a building contract which
contains a clause in the terms of clause 35.4, there is no
room for the prevention principle to operate because it
is, in effect, excluded by the express contractual
provision.
[View
Casewatch PDF]
Pavey & Matthews v Paul
This case stands for the proposition that quantum meruit
is based not on an implied contract, but on a claim to
restitution or unjust enrichment and arises from the
acceptance of benefits accruing to one party as a result
of the work done by the other. Further, the obligation to
pay fair and just compensation for a benefit which has
been accepted will only arise where such an agreement is
frustrated, avoided or unenforceable.
[View Casewatch PDF]
Liebe v Molloy
This case stands for the proposition that if the work
claimed for had been work required by the contract to be
done, then the builder could not recover for it, because
he had not complied with the contractual requirements.
However, if the work was work which the builder was not
required to do by the contract (i.e. outside the contract)
then a builder may recover on the basis of quantum meruit
if the employer:
(i) had actual knowledge of the extra works as they were
being done,
(ii) knew that they were outside the contract, and
(iii) knew that the builder expected to be paid for them
as extras.
[View
Casewatch PDF]
Electronic v David Jones
This case stands for the proposition that if action is
required to bring about the intended result, each party
has the duty of complying with the reasonable requests
made by the other to ensure the intended result is
achieved.
[View Casewatch PDF]
Dunlop v New Garage
The use of the words ‘penalty’ or ‘liquidated damages’
does necessary mean that a clause is either a ‘penalty’ or
a ‘liquidated damages’ clause. The Court will review the
clause in light of the circumstances at the time of
entering into the Contract.
[View
Casewatch PDF]
Beckhaus v Brewarrina (Appeal)
Where the Contract works are defective, a Principal is
only entitled to the difference between the costs incurred
in rectifying the defects and the amount it would have
taken to complete the works under the Contract.
[View
Casewatch PDF]
Wells v Army and Navy
If the Contract does not clearly provide for an extension
of time as a result of the defaulting act of the
Principal, the prevention principle may be enlivened.
[View
Casewatch PDF]
Turner v Austotel
The prevention principle has no application to the JCCA
form of contract due to the existence of an extension of
time clause entitling the Builder to an extension of time
in respect of the preventative acts by the Proprietor.
Further, Builders who fail to comply with the notice
requirements for extensions of time may remain liable for
liquidated damages while losing their right to extension
of time for the acts in question.
[View
Casewatch PDF]
Trimis v Mina
This case confirms the proposition that where a principal
has actual knowledge of the additional or extra works,
knows that they are outside the contract and knows that
the builder is expecting to be paid for the works as
extras to the contract, then a builder may be entitled to
claim on a quantum meruit or restitutionary basis.
[View
Casewatch PDF]
Peak v McKinney
This case stands for the proposition that a principal may
lose the right to claim liquidated damages if some delay
is due to the principal’s defaults or the defaults of its
employees or agents and the contract does not provide for
an extension of time in that event.
[View
Casewatch PDF]
Walter v FTAC
The Trades Practices Act applies to everyone!
[View
Casewtch PDF]
Stockland v Coombs
When a professional is required to undertake additional
work, a percentage based remuneration may significantly
under-recover the time and costs incurred
[View
Casewtch PDF]
Roche v Metro
A party may affirm a contract by continuing to exercise
its rights (work) under the contract after it is aware of
a breach entitling it to terminate the contract
[View
Casewatch PDF]
Murphy v Acumen
Practical Completion means completion for practical
purposes!
[View
Casewatch PDF]
Jennings Constructions v Q H & M Birt
'Time bar' clauses create a condition precedent that must
be met before an entitlement to a claim can be made
[View
Casewatch PDF]
Rickard Constructions & Anor v Rickard Hails &
Moretti & Ors
The cause of action in tort or contract can be assigned
where there is genuine commercial interest in the
enforcement of the cause of action
[View
Casewatch PDF]
Tan v Luxury
A construction contract will only constitute an 'entire
contract' if payment is conditional on the complete
performance of the contract
[View
Casewatch PDF]
