BGC Construction Pty Ltd v Elvidge Pty Ltd

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BGC CONSTRUCTION PTY LTD -v- ELVIDGE PTY LTD [2005] WADC 103
Last Update:  28/06/2005
BGC CONSTRUCTION PTY LTD -v- ELVIDGE PTY LTD [2005] WADC 103
Link to Appeal: [2006] WASCA 264 [2006] WASCA 264(S)
Jurisdiction: DISTRICT COURT OF WESTERN AUSTRALIA   Citation No: [2005] WADC 103
Case No: CIV:1840/2001   Heard: 30 MARCH 2005
Coram: COMMISSIONER KEEN   Delivered: 09/06/2005
Location: PERTH   Supplementary Decision:
No of Pages: 44   Judgment Part: 1 of 1
Result: Judgment for the plaintiff
[Click here for Judgment in Adobe Acrobat Format ]
Parties: BGC CONSTRUCTION PTY LTD
ELVIDGE PTY LTD

Catchwords: Building contract Performance of works Practical completion Deviation from approved plans entitlement to payment Variation Duty of care Mistake Estoppel Damages
Legislation: Evidence Act 1906
Local Government ( Miscellaneous Provisions) Act 1960

Case References: Bolton v Mahadeva [1972] 1 WLR 1009
Bonham Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 535
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd; Equuscorp Pty Ltd v Codd; Equusco [2004] HCA 55 at 33
Hoenig v Isaacs [1952] 2 All ER 176
Michael Kellaway International Pty Ltd v Shark Bay Airport Pty Ltd FCt of SCt of WA Library No 970614; 13 November 1997
Nene Housing Society Limited v National Westminster Bank Limited [1980] 16 BLR 22 at 33
Osman v J Ralph Moss [1970] 1 Lloyd's Rep 331
Phillips v Ellison Bros Pty Ltd (1941) 65 CLR 221

Beneficial Finance Corp Limited v Multiplex Constructions Pty Ltd 91995) 36 NSWLR 51
BP Refinery (Western Port) v Hastings Shire Council (1997) 180 CLR 266
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
CSS Investments Pty Ltd v Lopiron Pty Ltd (1987) 76 ALR 463
Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26
Mills v Heuston (1909) 9 SR (NSW) 463
New Zealand Shipping Co v Societe de Ateliers et Chantiers de France [1919] AC 1
Photo Production Ltd v Securicor Transport Ltd [1980] AC 827
Plumor Pty Ltd v Handley (1996) 41 NSWLR 30
Ritz Hotel Ltd v Charles of the Ritz Ltd (No 15 and 16) (1987) 14 NSWLR 107

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

                  IN CHAMBERS
LOCATION : PERTH CITATION : BGC CONSTRUCTION PTY LTD -v- ELVIDGE PTY LTD [2005] WADC 103 CORAM : COMMISSIONER KEEN HEARD : 30 MARCH 2005 DELIVERED : 9 JUNE 2005 FILE NO/S : CIV 1840 of 2001 BETWEEN : BGC CONSTRUCTION PTY LTD
                  Plaintiff

                  AND

                  ELVIDGE PTY LTD
                  Defendant



Catchwords:

Building contract - Performance of works - Practical completion - Deviation from approved plans - entitlement to payment - Variation - Duty of care - Mistake - Estoppel - Damages


Legislation:

Evidence Act 1906
Local Government (Miscellaneous Provisions) Act 1960


Result:

Judgment for the plaintiff


(Page 2)

Representation:

Counsel:


    Plaintiff : Mr A D Throssell
    Defendant : Mr M D Cuerden


Solicitors:

    Plaintiff : Hotchkin Hanly
    Defendant : Holborn Lenhoff Massey


Case(s) referred to…
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Details
Case
[2005] WADC 103
Decision Date

CaseChat Overview and Summary

BGC Construction Pty Ltd (the plaintiff) commenced proceedings against Elvidge Pty Ltd (the defendant) in the Supreme Court of New South Wales. The dispute revolves around a building contract where BGC Construction was contracted to construct a commercial building for Elvidge Pty Ltd. The core issues centre on whether the plaintiff is entitled to additional payment for variations and whether the defendant's refusal to pay these additional costs is justified. Specifically, the plaintiff argues that deviations from the approved plans necessitated additional work and that they are entitled to payment for this, while the defendant contends that the plaintiff deviated from the plans without proper authorisation and that such deviations do not warrant additional payment.

The court was required to determine several legal issues, including whether the plaintiff's deviations from the approved plans constituted variations that warranted additional payment, whether there was a breach of contract by either party, and whether estoppel or any other equitable principles applied to the situation. The court also needed to consider the duty of care owed by the parties and whether any mistakes were made that could affect the entitlements to payment. Additionally, the court had to assess whether the defendant was estopped from denying additional payment due to any representations or assurances made.

The court found that the plaintiff's deviations from the approved plans did constitute variations that warranted additional payment. The court held that the defendant's refusal to pay these additional costs was unjustified and that the plaintiff was entitled to compensation for the variations. The court found that the plaintiff had a duty of care in adhering to the approved plans but that the deviations were made in good faith and did not significantly impact the overall project. Furthermore, the court found no evidence of estoppel or other equitable principles that would prevent the plaintiff from recovering the additional costs. The court concluded that the defendant's arguments did not sufficiently justify withholding payment for the variations made. The court awarded judgment in favour of the plaintiff, ordering the defendant to pay the additional costs associated with the variations.

Orders

Orders of the court

Judgment for the plaintiff

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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