Abigroup Contractors Pty Ltd v ABB Service Pty Ltd

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Abigroup Contractors Pty Ltd v ABB Service Pty Ltd (formerly ABB Engineering Construction Pty Ltd) [2004]  NSWCA 181

FILE NUMBER(S):
CA  40970/03

HEARING DATE(S):               10,11,12,13 May 2004

JUDGMENT DATE: 15/06/2004

PARTIES:
Abigroup Contractors Pty Ltd - Appellant
ABB Service Pty Ltd (formerly ABB Engineering Construction Pty Ltd) - Respondent

JUDGMENT OF:       Giles JA Tobias JA Cripps AJA   

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):          ED 55033/98

LOWER COURT JUDICIAL OFFICER:     Einstein J

COUNSEL:
R Macfarlan QC & P Durack - Appellant
B Collins QC & M Orlov - Respondent

SOLICITORS:
Clayton Utz - Appellant
Abbott Tout - Respondent

CATCHWORDS:
CONTRACT - tender for construction works - letter of intent issued - formal contract to be entered into - letter of intent envisaged commencement of work prior to formal contract - work commenced and carried on while negotiations continued - whether on construction of letter of intent and with regard to the parties' prior and subsequent conduct a fourth class Masters v Cameron contract had come into existence upon commencement of work - whether party's case in a reference had included that the contract had come into existence - PROCEDURE - contractual claims abandoned in submissions in favour of quantum meruit claim - abandonment conditional on leave to amend - leave opposed - in the event, not necessary to decide question of leave or quantum meruit claim - whether judgment should have been given on contractual claims against abandoning party - COSTS - whether evidence relevant to abandoned claims remained relevant for other purposes - whether error in failing to give other party a costs benefit referable to the abandonment of claims.  D.

LEGISLATION CITED:

DECISION:
In the proceedings below, dismiss the cross-claim.  In the appeal, appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA  40970/03
ED  55033/98

GILES JA
TOBIAS JA
CRIPPS AJA

Tuesday 15 June 2004

ABIGROUP CONTRACTORS PTY LTD v ABB SERVICES PTY LTD

Judgment

1. GILES JA:  Judgment was given for the respondent for $4,773,962.47 on a quantum meruit claim and the appellant was ordered to pay the respondent’s costs.  The first issue in the appeal was whether a contract between the appellant and the respondent had come into existence;  a sub-issue was whether it was open to the appellant to contend for the particular contract on which it relied.  The second issue was whether the appellant was entitled to judgment on other claims which it said the respondent had abandoned.  The third issue was whether the order for costs should have been moderated to reflect that abandonment. 

   Background

2. The appellant, a substantial construction company, was engaged to design and construct the Multi Use Arena (“the MUA”) within the Sydney Olympic Park precinct at Homebush Bay in Sydney.  The MUA was to be the major indoor venue used for the Sydney 2000 Olympic Games, and is now known as the Superdome.  It is a bowl shaped concrete…