Cheshire Contractors Pty Ltd v Everett - [2018] QSC 228

SUPREME COURT OF QUEENSLAND

CITATION:

Cheshire Contractors Pty Ltd v Everett [2018] QSC 228

PARTIES:

CHESHIRE CONTRACTORS PTY LTD
(ACN 124 700 385)

(Plaintiff)

v
MARK LANSDOWNE EVERETT

(Defendant)

FILE NO/S:

154 of 2016

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

8 October 2018

DELIVERED AT:

Cairns

HEARING DATES:

2, 3, 10, 11 August 2017; 8, 9 November 2017;

15, 16, 17 January 2018; 10, 11 April 2018.

JUDGE:

Henry J

ORDERS:

Judgment for the plaintiff in the amount of $450,493.59.1.

I will hear the parties as to costs if not agreed in the meantime at 9.15 a.m. on 24 October 2018.2.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – where there was an oral contract for works – where full payment for works was not made – where there were complaints of non-compliance of works performed – where there were complaints of other breaches of implied terms – whether the works were compliant – whether there were remedial works required – whether there was loss or damage occasioned.

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – where there was an oral contract for the commencement of works – where there were two phases to the works involved – where phase one was a work for pay engagement – where phase two had no substantive pay arrangement – where payment was to be by reference to hourly rates for phase two – where there existed a promise to delay the seeking of payment – whether that promise amounted to a promissory estoppel.

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS – where there were two phases to the works involved – where there existed an oral contract for phase one works – whether a further oral contract, joint venture or new contract existed for further works – where there were works completed after payment in full was not received for phase one and other works completed– whether there existed any agreement for payment for the further works.

Amos v Citibank Ltd [1996] QCA 129, cited.
Bellgrove v Eldridge (1954) 90 CLR 613, cited.

Combe v Combe (1951) 2 KB 215, 219, followed.

Foakes v Beer, (1884) 9 AC 605, followed.
Giumelli v Giumelli (1999) 196 CLR 101, cited.
Hughes v Metropolitan Railway Co (1877) 2 AC 439, cited.
John Alexander’s Clubs v White City, (2010) 241 CLR 1, followed.
Legione v Hateley (1983) 152 CLR 406, followed.
Masters v Cameron (1954) 91 CLR 353, cited.
Riches v Hogben [1985] 2 Qd R 292, cited.

COUNSEL:

WGC Lawyers for the plaintiff

Ascione & Associates for the defendant

SOLICITORS:

C E Taylor for the plaintiff

C J Ryall for the defendant

Introduction

The plaintiff, a civil contractor, performed development work on a proposed rural subdivision of the defendant’s property west of Ingham. It…

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.

Continue reading Cheshire Contractors Pty Ltd v Everett

Details

AGLC: Cheshire Contractors Pty Lt v Everett [2018] QSC 228
Case: [2018] QSC 228
Decision Date: 8 October 2018

CaseChat Overview and Summary

Cheshire Contractors Pty Ltd v Everett was a case heard by the Queensland District Court. The plaintiff, Cheshire Contractors, sought payment for works they had performed under an oral contract with the defendant, Mark Everett. The dispute centred on the performance and payment of two phases of work on Mr Everett’s property, with the plaintiff alleging breaches of contract, non-payment, and non-compliance with the terms of the agreement. The defendant, on the other hand, argued that the works were not performed to the required standard and that any further works were contingent on the satisfactory completion of the initial phase.

The court was tasked with determining several key legal issues. First, it had to ascertain whether the works completed under phase one of the contract were compliant with the agreed terms. Second, the court needed to address whether there were any remedial works required that might affect the plaintiff's entitlement to payment. Third, it had to consider whether there was any loss or damage occasioned by the defendant's actions. Additionally, the court examined whether a promise made in December 2011 to delay the seeking of payment amounted to a promissory estoppel, and whether there existed any agreement for payment for the works completed under phase two.

In its judgment, the court found that the works performed under phase one were largely compliant with the contract, though there were some minor deviations. The court also determined that no remedial works were necessary, and therefore, the plaintiff was entitled to payment for the works completed. Regarding the December 2011 promise, the court held that it did not constitute a promissory estoppel as it did not create a binding obligation. Lastly, the court concluded that an agreement for payment existed for the works under phase two, based on the oral contract and the conduct of the parties. The court awarded judgment to the plaintiff in the amount of $450,493.59, with further directions to be given on costs.

Orders

Orders of the court

Judgment for the plaintiff in the amount of $450,493.59.1.

I will hear the parties as to costs if not agreed in the meantime at 9.15 a.m. on 24 October 2018.2.

Background

Background to the litigation

These reasons will therefore progress in four parts:Part A - General factual background Part B -Phase one analysisPart C-The December 2011 promisePart D - Phase two analysis Part E - Determination of award and or set off.PART A - GENERAL FACTUAL BACKGROUNDPh 1 works The phase one works focussed upon the western end of Mr Everett’s property, which was owned by him in his representative capacity as trustee of the Everett Family Trust.[7][7]SOC [1], Def [1]. The residential development planned for the property was then known as Hinchinbrook Habitats. The development was planned to extend over a number of areas on the property, not just the area the subject of the phase one works.[8] Various areas of the property were excluded from the development as sensitive environmental habitats, pursuant to a development approval for material change of use of 14 May 2010.[9][8]See, eg, Ex 45.[9]Ex 47. The works consisted principally of the installation of a road along an existing road easement through the property.[10] The primary purpose of the phase one works was to provide better access to the property and the lots for potential purchase, so as to excite expressions of interest by prospective purchasers. In addition, as Barry Cheshire conceded, the works “were also part of the proposed completed development”.[10]T2-92 L15. The road was built to subgrade level. This, Barry Cheshire explained, is the layer directly beneath the pavement layer. The latter layer typically involves a further two or three layers of gravel followed by bitumen or asphalt.[11][11]T2-50 L33. Barry Cheshire testified that other work performed at Mark Everett’s request during phase one included the clearing of mangroves,[12] the removal of an old bridge which was part of a causeway,[13] putting a drain along some lots on the high side of the road,[14] building a boat ramp,[15] applying extra fill so the batters were less steep and could be mowed,[16] the clearing of 15 lots,[17] rock work near the dam,[18] excavation up the hill,[19] the installation of ag pipe to drain some blocks[20] and putting some gravel running surface on the road for use during construction when the surface was slippery.[21] [12]T2-56 L14, T3-14 L41.[13]T2-59 L8, T3-15 L33.[14]T3-15 L44.[15]T2-54 L25 – T2-55 L1.[16]T2-55 L23.[17]T2-55 L42.[18]T2-56 L28.[19]T2-58 L16.[20]T2-58 L33.[21]T2-59 L29, T4-8 L28. Some excavation material, which was excess to the needs of a project being conducted on the Mt Cudmore Road near the Cardwell Range, was supplied by an entity known as Abigroup for Cheshire Contractors’ use on embankments and bridging out an area of mangrove in the phase one works.[22] Barry Cheshire testified the work involved in respect of the material brought on site from Abigroup was “considerable”.[23] Mr Cheshire explained a large compactor was used to break down the fill material, which was quite coarse, for use in lessening the batter slopes. This involved stripping back topsoil, placing and compacting the material, levelling it out and then putting the topsoil back over the top again.[24][22]T1-75 LL15-47.[23]T3-14 L38.[24]T4-6 LL35-45.

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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CITATION:	Cheshire Contractors Pty Ltd v Everett [2018] QSC 228
PARTIES:	*CHESHIRE CONTRACTORS PTY LTD* *(ACN 124 700 385)* (Plaintiff) v *MARK LANSDOWNE EVERETT* (Defendant)
FILE NO/S:	154 of 2016
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	8 October 2018
DELIVERED AT:	Cairns
HEARING DATES:	2, 3, 10, 11 August 2017; 8, 9 November 2017; 15, 16, 17 January 2018; 10, 11 April 2018.
JUDGE:	Henry J
ORDERS:	Judgment for the plaintiff in the amount of $450,493.59.1. I will hear the parties as to costs if not agreed in the meantime at 9.15 a.m. on 24 October 2018.2.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – where there was an oral contract for works – where full payment for works was not made – where there were complaints of non-compliance of works performed – where there were complaints of other breaches of implied terms – whether the works were compliant – whether there were remedial works required – whether there was loss or damage occasioned. CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – where there was an oral contract for the commencement of works – where there were two phases to the works involved – where phase one was a work for pay engagement – where phase two had no substantive pay arrangement – where payment was to be by reference to hourly rates for phase two – where there existed a promise to delay the seeking of payment – whether that promise amounted to a promissory estoppel. CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS – where there were two phases to the works involved – where there existed an oral contract for phase one works – whether a further oral contract, joint venture or new contract existed for further works – where there were works completed after payment in full was not received for phase one and other works completed– whether there existed any agreement for payment for the further works. Amos v Citibank Ltd [1996] QCA 129, cited. Bellgrove v Eldridge (1954) 90 CLR 613, cited. Combe v Combe (1951) 2 KB 215, 219, followed. Foakes v Beer, (1884) 9 AC 605, followed. Giumelli v Giumelli (1999) 196 CLR 101, cited. Hughes v Metropolitan Railway Co (1877) 2 AC 439, cited. John Alexander’s Clubs v White City, (2010) 241 CLR 1, followed. Legione v Hateley (1983) 152 CLR 406, followed. Masters v Cameron (1954) 91 CLR 353, cited. Riches v Hogben [1985] 2 Qd R 292, cited.
COUNSEL:	WGC Lawyers for the plaintiff Ascione & Associates for the defendant
SOLICITORS:	C E Taylor for the plaintiff C J Ryall for the defendant