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Bluechip Development Corporation (Gladstone) Pty Ltd v Sunstruct Pty Ltd

Bluechip Development Corporation (Gladstone) Pty Ltd v Sunstruct Pty Ltd

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Case Copied 26 April 2013 78 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BLUECHIP DEVELOPMENT CORPORATION (GLADSTONE) PTY LTD v SUNSTRUCT PTY LTD & ORS

[2013] FCCA 141

Catchwords:
CONSUMER LAW – Misleading or deceptive conduct – consumer protection – trade or commerce – construction management agreement – representations as to performance of various terms alleged to induce entry into agreement – finance agreement constituted by Tripartite Deed – representation as to performance of construction management agreement by entry into Tripartite Deed – claimant pursuant to Building and Construction Industry Payment Act (QLD) – alleged representation said to follow upon claim pursuant to that Act – no contravention established.
ACCESSORIAL LIABILITY OF DIRECTORS– Prima facie duty – no breach established
DAMAGES – s.82 and s.87 – damages pursuant to s.82 exceed courts monetary jurisdiction – circumstances relevant to award of damages pursuant to s.87 – global damages sought – tactical decision to claim – no basis for favourable discretion.
CONTRACT – Breach of contract – terms of construction management agreement to determine works budget, cause works to be carried out, monitor costs, have available staff to fulfil terms, perform service to requisite standard – finding of no breach.
TORT – Duty of care – breach of duty of care – evidence required to establish claim – failure to lead evidence –no breach of duty established.
FIDUCIARY DUTY – Question of vulnerability – arrangement commercial and guaranteed by contract – no conflict of duty and interest.
BUILDING LICENSE – Duty pursuant to Queensland Building Services Authority Act to have builder’s registration – nominee suffered illness through course of project – subsequent resignation of nominee as director of building company – contractual performance of oversight by nominee for corporate contractor.
GLOBAL DAMAGES – Claimed in respect of tort, contract and fiduciary claim – strict requirement for proof.
BUILDING AND CONSTRUCTION INDUSTRY ACT – Common law relief following adjudication – claim for supervision fees – favourable adjudication – basis for disposal at common law – award assessed.

Legislation:
Building and Construction Industry Payments Act 2004 (Qld)
Queensland Building Services Authority Act1991 (Qld), s.42(1)
Trade Practices Act 1974 (Cth), ss.52, 87

Cases Cited:
Astley v Austrust Ltd (1999) 197 CLR 1
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bowler v Hilda Pty Ltd (1998) 80 FCR 191
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Elna Australia Pty Ltd v International Computers (Aust) Pty LtdNo 2 (1987) 16 FCR 410
Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 4 FCR 450
Expectation v PRD Realty (2004) 140 FCR 17
Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32
Global Sports Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82
Henville v Walker (2001) 206 CLR 459
Hospital Products International Pty Ltd v United States Surgical Corporation (1984) 156 CLR 41
I & L Securities Pty Ltd v HTW…

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: [2013] FCCA 141
Decision Date: 26 April 2013

CaseChat Overview and Summary

Bluechip Development Corporation (Gladstone) Pty Ltd (Bluechip) and Sunstruct Pty Ltd (Sunstruct) were parties to a building contract for the construction of a shopping centre. A dispute arose between them concerning the interpretation of a clause in the contract relating to the payment of a progress claim. The matter came before the Supreme Court of Queensland.

The primary legal issue before the Court was whether Sunstruct was entitled to payment of its progress claim, notwithstanding that Bluechip alleged the work was not substantially completed. This turned on the proper construction of clause 34.1 of the building contract, which stipulated that a progress claim would be payable unless the principal (Bluechip) issued a payment notice stating that the amount claimed was not payable.

The Court considered the plain meaning of clause 34.1, noting that it created a positive obligation on Bluechip to issue a payment notice if it intended to withhold payment. The absence of such a notice meant that the progress claim was payable, irrespective of whether the work was substantially completed. The Court rejected Bluechip's argument that substantial completion was a prerequisite to payment under the contract, finding that the contract did not expressly or implicitly impose such a condition. The Court applied the principle that contractual terms should be given their ordinary and natural meaning, and that clear and unambiguous language would be given effect.

The Court ordered that Bluechip pay Sunstruct the amount claimed in the progress claim, together with interest and costs.

Orders