Bayside Council v Corp Constructions Pty Ltd

Case [2017] NSWCA 120

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Bayside Council v V Corp Constructions Pty Ltd [2017] NSWCA 120
Hearing dates:27 March 2017
Decision date: 31 May 2017
Before: Basten JA at [1];
Macfarlan JA at [65];
Ward JA at [66]
Decision:

(1)   Dismiss the appeal brought by Bayside Council against the judgment of the District Court given on 31 May 2016 dismissing the Council’s claim against V Corp Constructions Pty Ltd.

 

(2)   Dismiss the appeal brought by Bayside Council against the judgment of the District Court given on 31 May 2016 dismissing the Council’s claim against Paul Aramini.

 (3)   Order that the Council pay the costs of both respondents of the proceedings in this Court.
Catchwords:

CONTRACTS – breach of contract – deed required respondent developer to “procure replacement” of above ground electricity cables with underground cables in accordance with Energy Australia’s requirements – Energy Australia refused permission to undertake works – whether developer’s resultant failure to procure work constituted breach of agreement – whether Energy Australia’s approval necessary condition of fulfilment

  DAMAGES – alleged loss suffered by Council as result of breach of contract by developer – Council claimed damages equivalent to costs of undertaking works not completed by developer – whether loss demonstrated in circumstances where works unable to proceed without Energy Australia’s approval
Legislation Cited: Electricity Supply Act 1995 (NSW), s 65
Environmental Planning and Assessment Act 1979 (NSW), ss 96, 149A-149E
Cases Cited: Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251
Berry v Berry [1929] 2 KB 315
BP Refinery (Westernport) Pty Ltd v Shire of Hasting (1977) 180 CLR 266
Butts v O’Dwyer (1952) 87 CLR 267
Cushman & Wakefield (NSW) Pty Ltd v Farrell [2017] NSWCA 24
Global Network Services Pty Ltd v Legion Telecall Pty Ltd [2001] NSWCA 279
Gordon & Gotch Australia Pty Ltd v Horwitz Publications Pty Ltd [2008] NSWCA 257
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896
Jireh International Pty Ltd t/as Gloria Jeans Coffee v Western Exports Services Inc [2011] NSWCA 13
OXS Pty Ltd v Sydney Harbour Foreshore Authority [2016] NSWCA 120
Texts Cited: K Lewison and D Hughes, The Interpretation of Contracts in Australia (2012, Lawbook Co) at 320
Category:Principal judgment
Parties: Bayside Council (formerly Council of the City of Botany Bay) (Appellant)
V Corp Constructions Pty Ltd (First Respondent)
Paul Aramini (Second Respondent)
Representation:

Counsel:
Mr T S Hale SC/Ms G R Rubagotti (Appellant)
Mr I R Pike SC/Mr D C Price (First Respondent)
Mr G E S Ng (Second Respondent)

  Solicitors:
Houston Dearn O’Connor (Appellant)
Sarvaas Ciappara Lawyers (First Respondent)
Yeldham Price O’Brien Lusk (Second Respondent)
File Number(s):2016/183098
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Civil
Date of Decision:
31 May 2016
Before:
Olsson SC DCJ
File Number(s):
2013/204350

headnote

[This headnote is not to be read as part of the judgment]

In October 2004 Bayside Council (formerly the Council of the City…

Continue reading Bayside Council v Corp Constructions Pty Ltd

Sign in free to access the full text

Details
AGLC
Bayside Council v Corp Constructions Pty Ltd [2017] NSWCA 120
Case
[2017] NSWCA 120
Decision Date

CaseChat Overview and Summary

Bayside Council appealed to the Court of Appeal of New South Wales against decisions of the District Court that dismissed its claims against Corp Constructions Pty Ltd and Paul Aramini. The dispute concerned a deed where Corp Constructions was obliged to "procure replacement" of above-ground electricity cables with underground cables, in accordance with Energy Australia's requirements. Corp Constructions failed to complete these works because Energy Australia refused permission to undertake them. The Council sought damages equivalent to the costs of the uncompleted works.

The Court of Appeal was required to determine whether Corp Constructions' failure to procure the replacement of the electricity cables constituted a breach of the deed, given that Energy Australia's approval was a prerequisite for undertaking the works. A further issue was whether the Council had demonstrated a loss in circumstances where the works could not proceed without Energy Australia's consent, and therefore whether the Council was entitled to damages for the costs it incurred or would incur to complete the works.

The Court reasoned that the obligation to "procure replacement" was conditional upon obtaining Energy Australia's approval. As Energy Australia refused permission, the condition precedent for the performance of the obligation was not met, meaning Corp Constructions was not in breach of the deed. The Court further held that the Council had not demonstrated any loss flowing from a breach, as the works were incapable of being performed without the necessary approval. Consequently, the Council's claim for damages was unfounded.

The appeal brought by Bayside Council was dismissed, and the Council was ordered to pay the costs of the respondents.

Orders

Orders of the court

(1) Dismiss the appeal brought by Bayside Council against the judgment of the District Court given on 31 May 2016 dismissing the Council’s claim against V Corp Constructions Pty Ltd.

(2) Dismiss the appeal brought by Bayside Council against the judgment of the District Court given on 31 May 2016 dismissing the Council’s claim against Paul Aramini.

(3) Order that the Council pay the costs of both respondents of the proceedings in this Court.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.