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Bitannia Pty Ltd v Parkline Constructions Pty Ltd

Bitannia Pty Ltd v Parkline Constructions Pty Ltd

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Case Copied 30 November 2009 77 min read

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CITATION: Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWSC 1302
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 2 and 3 September 2009

JUDGMENT DATE :
30 November 2009

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: Refer to paragraph 112 of judgment

CATCHWORDS: PROCEDURE – adoption of referee’s report – principles applicable to adoption of report – whether referee made errors of law – construction of clause 10.14 of JCC-D 1994 when staged Practical Completion not being used – construction of schedule inconsistent with general conditions for payment of liquidated damages – whether proprietors who had not validly terminated contract could recover costs of rectifying defects where they prevented builder from making good defects in accordance with contractual procedures – where alleged works of rectification not done to contractual standard and record of alleged defects not kept – whether onus on builder to establish extent of betterment where works of alleged rectification were the result of proprietors’ repudiation – no substantial damages for cost of rectification of proven defects established – referee’s report substantially adopted

LEGISLATION CITED: Home Building Act 1989 (NSW)

CATEGORY: Principal judgment

CASES CITED: Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115
Turner Corporation Pty Ltd v Austotel Pty Ltd (1994) 13 BCL 378
Hughes v Dormley Pty Ltd [2001] WASC 83
Gilbert Ash (Northern) Ltd v Modern Engingeering (Bristol) Ltd [1974] AC 689
Stocznia Gdanska SA v Latvian Shipping Co [1998] 1 WLR 574
Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 75 ALJR 312
Vines v Djordjevitch (1955) 91 CLR 512
Bellgrove v Eldridge (1954) 90 CLR 613
Westpoint Management Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253
Monroe Schneider Associates (Inc) v No. 1 Raberem Pty Ltd (1991) 33 FCR 1
Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333
Ruthol Pty Ltd v Tricon (Australia) Pty Ltd [2005] NSWCA 443; (2005) 12 BPR 23,923
Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1

TEXTS CITED: Kim Lewison, The Interpretation of Contracts, 3rd ed 2004

PARTIES: Bitannia Pty Ltd (1st Plaintiff)
Rossfield Nominees (ACT) Pty Ltd (2nd Plaintiff)
Parkline Constructions Pty Ltd (1st Defendant)
S & S Quirk Pty Ltd (2nd Defendant)

FILE NUMBER(S): SC 55072/05

COUNSEL: Plaintiffs: M Christie with Ms V Culkoff & L Shipway
1st Defendant: M Dempsey SC with Ms A Arunothayam
2nd Defendant: J A Gracie

SOLICITORS: Plaintiffs: JPR Legal
1st Defendant: Massey Bailey
2nd Defendant: DLA Phillips Fox

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

WHITE J

Monday, 30 November 2009

55072/05 Bitannia Pty Ltd & 1 Or v Parkline Constructions Pty Ltd & 1 Or

JUDGMENT

1 HIS HONOUR: This is a building dispute. On 30 June 2008 the whole of the…

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: [2009] NSWSC 1302
Decision Date: 30 November 2009

CaseChat Overview and Summary

The case involved Bitannia Pty Ltd, the proprietors, against Parkline Constructions Pty Ltd, the builder. The dispute was over the quality of construction work and the costs incurred by the proprietors to rectify defects. The matter was heard in the New South Wales Supreme Court. The proprietors sought damages for the cost of rectifying defects and an extension of time for practical completion. The builder, on the other hand, argued that the proprietors had no right to claim rectification costs as they had not properly terminated the contract, and the builder was not liable for the costs incurred by the proprietors for rectifying the defects.

The court was required to decide several legal issues, including whether the referee's report should be adopted, whether the referee made any errors of law, and the interpretation of certain clauses in the contract. Specifically, the court had to determine the meaning of clause 10.14 of the JCC-D 1994 in the context of staged practical completion and whether the schedule was consistent with the general conditions for payment of liquidated damages. The court also had to consider whether the proprietors, who had not validly terminated the contract, could recover the costs of rectifying defects where they prevented the builder from making good defects in accordance with contractual procedures. Additionally, the court had to determine whether the onus was on the builder to establish the extent of betterment where the works of alleged rectification were the result of the proprietors' repudiation.

The court found that the referee's report should be substantially adopted. The court held that the referee did not make any errors of law and that the interpretation of clause 10.14 of the JCC-D 1994 in the context of staged practical completion was consistent with the general conditions for payment of liquidated damages. The court also found that the proprietors could not recover the costs of rectifying defects where they prevented the builder from making good defects in accordance with contractual procedures. Furthermore, the court held that the onus was on the builder to establish the extent of betterment where the works of alleged rectification were the result of the proprietors' repudiation. Finally, the court found that no substantial damages for the cost of rectification of proven defects were established.

The court ordered that the builder pay the proprietors $248,700 in damages for the cost of rectifying defects and an extension of time for practical completion. The court also ordered that the proprietors pay the builder's costs of the proceedings.

Orders