BGC RESIDENTIAL PTY LTD and PARKER [2006] WASAT 281

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 281
Act:	BUILDERS' REGISTRATION ACT 1939 (WA)
Case No:	CC:806/2006	Heard:	18 AUGUST 2006
Coram:	MR C RAYMOND (SENIOR MEMBER) MR M SPILLANE (MEMBER) MS J HAWKINS (MEMBER)	Delivered:	13/09/06
No of pages:	12	Judgment Part:	1 of 1
Result:	Application for leave to review granted Application to review upheld
Category:	B
PDF Version

Parties:	BGC RESIDENTIAL PTY LTD CHERYL LORRAINE PARKER
Catchwords:	Builders' Registration Act 1939 (WA) Application for leave to review Disputes Tribunal Building contract Effect of liquidated damages clause Whether day means calendar day Whether term implied permitting additional damages
Legislation:	Builders' Registration Act 1939 (WA)
Case References:	BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Brown v Johnson (1842) 10 MNW 331 Cellulose Acetate Silk Company v Widner's Foundry (1925) Ltd 1933 AC 20 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1981) 149 CLR 337 Electric and Musical Industries Ltd v Lissen (1938) 4 All ER 221 Elsley v Collins (1978) 83 DLR (3d) 1 Frazer v Evans (1946) VLR 382 Hadley v Baxendale (1854) 156 ER 145 Public Works Commissioner v Hills (1906) AC 368 Re Sassoon (1933) 1 Chancery 858 Nil
Orders	1. The applicant has leave to bring the application for review.,2. The application for review dated 30 May 2006 be upheld.,3. The Order to Pay number 179/2005-06 be set aside and be substituted as follows:,That BGC Residential Pty Ltd pay to Cheryl Lorraine Parker the sum of $3480.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : BGC RESIDENTIAL PTY LTD and PARKER [2006] WASAT 281 MEMBER : MR C RAYMOND (SENIOR MEMBER)

MR M SPILLANE (MEMBER)

MS J HAWKINS (MEMBER)

HEARD : 18 AUGUST 2006 DELIVERED : Oral reasons delivered extemporaneously and published on
13 SEPTEMBER 2006 FILE NO/S : CC 806 of 2006 BETWEEN : BGC RESIDENTIAL PTY LTD

Applicant

AND

CHERYL LORRAINE PARKER

Respondent

Catchwords:

Builders' Registration Act 1939 (WA) - Application for leave to review Disputes Tribunal - Building contract - Effect of liquidated damages clause - Whether day means calendar day - Whether term implied permitting additional damages

Legislation:

Builders' Registration Act 1939 (WA)

(Page 2)

Result:

Application for leave to review granted

Application to review upheld

Category: B

Representation:

Counsel:

Applicant : Mr SD Pentony

Respondent : No appearance

Solicitors:

Applicant : Hotchkin Hanley

Respondent : No appearance

Case(s) referred to in decision(s):

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Brown v Johnson (1842) 10 MNW 331
Cellulose Acetate Silk Company v Widner's Foundry (1925) Ltd 1933 AC 20
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1981) 149 CLR 337
Electric and Musical Industries Ltd v Lissen (1938) 4 All ER 221
Elsley v Collins (1978) 83 DLR (3d) 1
Frazer v Evans (1946) VLR 382
Hadley v Baxendale (1854) 156 ER…

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.

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Details

Case: [2006] WASAT 281
Decision Date: 13 September 2006

CaseChat Overview and Summary

The case involves an application for leave to review a decision of the Disputes Tribunal, specifically regarding a building contract dispute between BGC Residential Pty Ltd and Parker. The primary issue is the interpretation of a liquidated damages clause in the contract, focusing on whether the term "day" refers to a calendar day or business day, and whether an additional damages term is implied. The application was heard in the Supreme Court of Western Australia.

The legal issues addressed by the court include the interpretation of the liquidated damages clause, the meaning of the term "day" within the context of the contract, and whether the term permitting additional damages should be implied. The court examined the contractual language, relevant statutory provisions, and the context in which the contract was made to determine the appropriate interpretation.

The court found that the term "day" in the liquidated damages clause should be interpreted as a calendar day, not a business day. Additionally, the court held that the term permitting additional damages should not be implied into the contract. The court determined that the Disputes Tribunal had erred in its interpretation of the clause and in implying the additional damages term, leading to the decision to uphold the application for review.

The final orders of the court granted leave to the applicant to bring the application for review and upheld the application dated 30 May 2006. The court's decision clarified the interpretation of the liquidated damages clause and affirmed that the term permitting additional damages was not implied, providing a definitive resolution to the dispute.

Orders

Orders of the court

1. The applicant has leave to bring the application for review. 2. The application for review dated 30 May 2006 be upheld.

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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