JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: A GONINAN & CO LTD -v- DIRECT ENGINEERING SERVICES PTY LTD [No 2] [2008] WASCA 112
CORAM: MARTIN CJ
McLURE JA
BUSS JA
HEARD: 10 DECEMBER 2007
DELIVERED : 15 MAY 2008
FILE NO/S: CACV 78 of 2006
BETWEEN: A GONINAN & CO LTD (ACN 000 333 136)
Appellant
AND
DIRECT ENGINEERING SERVICES PTY LTD (ACN 008 700 178)
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MURRAY J
Citation :DIRECT ENGINEERING SERVICES PTY LTD -v- A GONINAN & CO LTD [2006] WASC 105
File No :CIV 1098 of 2001
Catchwords:
Contract - Building contract between proprietor and head contractor - Head contractor obliged to effect and maintain various insurances throughout the term of the building contract - Whether head contractor's obligation extended to the provision of insurance cover for its subcontractors - Clause imposing obligation on head contractor ambiguous - Whether the deletion of an insurance clause from a standard or common form building contract may be referred to as an aid to construing the ambiguous clause
Insurance - Insurance policy - Subcontractors will be insureds under the policy only if they are persons, organisations or entities to whom the head contractor is in writing obliged to provide insurance - Whether the building contract between the proprietor and the head contractor imposed such an obligation on the head contractor
Legislation:
Insurance Contracts Act 1984 (Cth) s 48
Motor Vehicle (Third Party) Insurance Act 1943 (WA) s 4(1)
Occupiers' Liability Act 1985 (WA)
Workers' Compensation and Injury Management Act 1981 (WA) s 160, s 175
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr G R Hancy & Mr P K Walton
Respondent: Mr M J McCusker QC & Mr L F A Nixon
Solicitors:
Appellant: Jackson McDonald
Respondent: Clayton Utz
Case(s) referred to in judgment(s):
260 Oxford Pty Ltd v Premetis [2006] NSWCA 96
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Burger King Corp v Hungry Jack's Pty Ltd (2002) 23(7) Leg Rep SL2
Burger King Corp v Hungry Jack's Pty Ltd [2001] NSWCA 187
Centrepoint Custodians Pty Ltd v Lidgerwood Investments Pty Ltd [1990] VR 411
Co‑operative Retail Services Ltd v Taylor Young Partnership Ltd [2002] 1 WLR 1419
Jumbo King Ltd v Faithful Properties Ltd [1999] 3 HKLRD 757
Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181
McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Petrofina (UK) Ltd v Magnaload Ltd [1984] QB 127
Postle v Sengstock [1994] 2 Qd R 290
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Woodside Petroleum Development Pty Ltd v H & R‑E & W Pty Ltd (1999) 20 WAR 380
MARTIN CJ: I…
Keep reading for free
Create a free CaseChat account to read A Goninan & Co Ltd v Direct Engineering Services Pty Ltd [No... and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2008] WASCA 112
- Decision Date
CaseChat Overview and Summary
The court held that the head contractor's obligation to effect and maintain insurances throughout the term of the building contract was ambiguous. The court found that the deletion of an insurance clause from a standard building contract could be referred to as an aid to construing the ambiguous clause. The court held that the building contract between the proprietor and the head contractor did not impose such an obligation on the head contractor to provide insurance to its subcontractors. As a result, the subcontractors were not insureds under the policy. The court set aside the orders made by the trial judge and dismissed the respondent's claim and the appellant's counterclaim. The respondent was ordered to pay the appellant's costs of the appeal.
This decision highlights the importance of clear contractual language and the potential consequences of ambiguous clauses. It also underscores the role of standard form contracts and their amendments in interpreting contractual obligations. The court's decision provides guidance to contractors and proprietors on the interpretation of insurance obligations in building contracts.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.