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Abigroup v Peninsula (No 2)

Abigroup v Peninsula (No 2)

Case [2001] NSWSC 1016 13 November 2001

Civil Litigation & Procedure

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Reported Decision:
[2001] NSWSC 1016
[2001] ACL Rep 325 NSW 414
[2001] ACL Rep 65 NSW 9

New South Wales

Supreme Court

CITATION: Abigroup v Peninsula (No 2) [2001] NSWSC 1016

CURRENT JURISDICTION: Equity Division
Construction List

FILE NUMBER(S): SC 55034/99

HEARING DATE(S): 26/10/01

JUDGMENT DATE:
13 November 2001

PARTIES :

Abigroup Contractors Pty Limited - Plaintiff
Peninsula Balmain Pty Limited - Defendant

JUDGMENT OF: Barrett J

COUNSEL : Mr B.W. Walker SC/Mr I.D. Faulkner - Plaintiff
Mr F.M. Douglas QC/Mr M.G. Rudge SC/Mr M. Christie - Defendant

SOLICITORS: Clayton Utz - Plaintiff
Deacons - Defendant

CATCHWORDS: CONTRACTS - building contracts - position of superintendent - whether superintendent is as a matter of law an agent of the proprietor - PROCEDURE - re-opening of decision before entry of orders - applicable principles discussed - not appropriate to re-open - appeal, if warranted, is proper course - PROCEDURE - interest on judgment - date from which interest should run - PROCEDURE - costs - where party succeeds on basis pleaded late - costs awarded only from date successful basis pleaded - offer of compromise made and rejected before successful basis pleaded should not be taken into account

LEGISLATION CITED: Trade Practices Act 1974

CASES CITED: Cullen v Trappell (1980) 146 CLR 1
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Haines v Bendall (1991) 172 CLR 60
Brodie v Singleton Shire Council (2001) 75 ALJR 992
Henville v Walker (2001) 75 ALJR 1410
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20, on appeal (2001) 37 ACSR 672
Fowdh v Fowdh (unreported, NSWCA, 4 November 1999)
Trimis v Mina [1999] NSWCA 140
Leadenhall Australia Ltd v Peptech Ltd [2001] NSWCA 272
Semrani v Manoun [2001] NSWCA 337
R v Nitin Giri (No 2) [2001] NSWCCA 234
NRMA Ltd v Morgan (No 3) [1999] NSWSC 768
Hughes Bros Pty Ltd v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [1999] NSWSC 1051
Grogan v Thiess Contractors Pty Ltd [2000] NSWSC 1101
Owners Strata Plan No 13218 v Woollahra Municipal Council [2001] NSWSC 158
Bennett v Jones [1977] 2 NSWLR 355
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131
Falkner v Bourke (1990) 19 NSWLR 574
McWilliams Wines Pty Ltd v Liaweena (1993) 23 NSWLR 190
Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54
Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353
Riddle v McPherson (1995) 37 NSWLR 338
Council of the City of Sydney v Woodward (2001) 17(1) BCL 42
Home Owners Insurance Pty Ltd v Job (1983) 2 ANZ Ins Cas 60-635
Chambers v Goldthorp Restell [1901] 1 QB 624
Gray Ltd v Earl Cathcart (1922) 38 TLR 562
R.B. Burden Ltd v Swansea Corporation [1957] 1 WLR 1167
Compagnie Noga D'Importation et D'Exportation SA v Abacha [2001] 3 All ER 513
Sutcliffe v Thackrah [1974] AC 727
Cookson v Knowles [1979] AC 556
London Borough of Merton v Leach (1985) 32 BLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abigroup v Peninsula (No 2)

Details

AGLC: Abigroup v Peninsula (No 2) [2001] NSWSC 1016
Case: [2001] NSWSC 1016
Decision Date: 13 November 2001

CaseChat Overview and Summary

In the Federal Court of Australia, Abigroup Constructors Pty Ltd, an appellant, sought to appeal against a decision made by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), a respondent. The primary issue in dispute was the interpretation of the role of a superintendent under a building contract and whether the superintendent could be considered an agent of the proprietor as a matter of law. The court was also tasked with determining the appropriate principles to apply when deciding whether to reopen a decision before entering orders, the date from which interest on a judgment should run, and the appropriate method for calculating costs when a party succeeds on a basis pleaded late.

The court examined the role of a superintendent under a building contract and concluded that the superintendent's status as an agent of the proprietor was not a matter of law but rather depended on the specific terms of the contract. In addressing the issue of reopening decisions before entering orders, the court outlined the applicable principles and determined that it was not appropriate to reopen the decision in this instance. The court emphasised that if an appeal was warranted, it was the proper course of action. Regarding the date from which interest on a judgment should run, the court found that it should commence from the date the decision was made. Lastly, the court ruled that where a party succeeds on a basis pleaded late, costs should only be awarded from the date the successful basis was pleaded. Furthermore, an offer of compromise made and rejected before the successful basis was pleaded should not be taken into account in the cost assessment.

The court dismissed the appeal and ordered that the appellant pay the respondent's costs of the appeal. The court held that the respondent was entitled to interest on the amount of the award from the date of the decision. The court further ruled that the costs awarded to the respondent should be calculated from the date the successful basis was pleaded, excluding any offers of compromise made prior to that point.

Orders