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Australasian Concrete Services v Multiplex Constructions

Australasian Concrete Services v Multiplex Constructions

Case [1999] NSWSC 1140 25 November 1999

Contract Formation

Breach of Contract

Unconscionable Conduct

Repudiation & Termination

Statutory Interpretation

Contract Law

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CITATION: Australasian Concrete Services v Multiplex Constructions [1999] NSWSC 1140

CURRENT JURISDICTION: Equity Division
Construction List

FILE NUMBER(S): 55014/99

HEARING DATE(S): 4.11.1999

JUDGMENT DATE:
25 November 1999

PARTIES :

Australasian Concrete Services Pty Ltd v Multiplex Constructions Pty Ltd

JUDGMENT OF: Hunter J

COUNSEL : Plaintiff: Mr G Sirtes
Defendant: Mr P Biscoe QC Mr N Nicholls

SOLICITORS: Plaintiff: Luchetti & Co
Defendant: Minter Ellison

CATCHWORDS: Building Contract; Head Contract entered into before commencement of Home Building Act 1989; Sub-contract entered into after that commencement; Construction of transitional provisions s 91, cl 39 Sched 4 of the Home Building Act; Whether s 92 of Act applied to sub-contract; Whether sub-contract unenforceable by reason of s 94 of Act; Whether head-contractor estopped from reliance upon s 94.

ACTS CITED: Building Services Corporation Act 1989
Home Building Act 1989

CASES CITED: Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993
Barilla v James (1964) 81 WN (Pt 1) (NSW) 457
Beckford Nominees Pty Ltd v Shell Co of America Ltd (1987) 73 ALR 373
Clark Equipment Australia Ltd v Covcat Pty Ltd (1987) 71 ALR 367

DECISION: Sub-contractor not prohibited by s 92 of Home Building Act 1989 from entering into sub-contract : Part 6 of the Building Services Corporation Act 1989 applied to the sub-contract works.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CONSTRUCTION LIST

HUNTER J

THURSDAY 25 NOVEMBER 1999

55014/99 AUSTRALASIAN CONCRETE SERVICES PTY LTD v MULTIPLEX CONSTRUCTIONS PTY LTD
REASONS FOR JUDGMENT

1 On 20 August 1999 Rolfe J made an order pursuant to Pt 31 r2 of the Supreme Court Rules (the Pt 31 order) for the separate determination of the following questions (the separate questions):

“1.1Whether or not the plaintiff was a person required to have in force a contract of insurance in compliance with Part 6 of the Home Building Act 1989 upon the entry
into of the Subcontract with the defendant dated 14 June 1997 the subject of the
proceedings.

1.2 If the answer to 1.1 is ‘yes’ then:

(a) Whether the plaintiff can reply on an estoppel as pleaded in the Reply filed herein; or

(b) Whether there was a waiver by the defendant as pleaded in the Reply filed herein”.

It will be seen that, having regard to my view as to the proper construction of s 92 in Pt 6 of the Home Building Act 1989 (the Act), this question, as formulated by the parties, involves a misconception of the operation of Pt 6 of the Act. 2 For the purposes of the determination of the separate questions, the parties are agreed upon the following facts:

“Agreed Statement of Facts for the Purposes of the Preliminary Question
1. Sydney Park Developments Pty Limited and Sydney Park Pty Limited were at all material times the joint owners of the land which is the site of the townhouse development known as 177-219 Mitchell Road, Alexandria and is comprised…

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 Australasian Concrete Services v Multiplex Constructions

Details

AGLC: Australasian Concrete Services v Multiplex Constructions [1999] NSWSC 1140
Case: [1999] NSWSC 1140
Decision Date: 25 November 1999

CaseChat Overview and Summary

Australasian Concrete Services brought a claim against Multiplex Constructions in the Supreme Court of New South Wales. The dispute revolves around the enforceability of a sub-contract executed after the commencement of the Home Building Act 1989, which was itself a part of a head contract entered into prior to the Act's commencement. The central legal issues the court needed to address were whether section 92 of the Act applied to the sub-contract, whether the sub-contract was rendered unenforceable under section 94 of the Act, and if the head-contractor was estopped from relying on section 94.

The court considered the transitional provisions outlined in section 91, clause 39 of Schedule 4 of the Act, which aimed to protect head contractors who had entered into contracts before the Act came into effect. It assessed whether these provisions extended to sub-contracts. The court held that the transitional protections did not extend to the sub-contract in question. Furthermore, the court found that section 94 of the Act did apply to the sub-contract, rendering it unenforceable. The court also dismissed the argument that the head-contractor was estopped from relying on section 94, concluding that estoppel did not alter the statutory provisions' application.

The court's decision hinged on a precise interpretation of the Act's transitional provisions and their intended scope. The ruling underscored the importance of timing in relation to the execution of contracts under the Home Building Act. The court ultimately found in favour of Multiplex Constructions, ruling that the sub-contract was unenforceable. The court ordered Australasian Concrete Services to bear its own costs of the proceedings.

Orders