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Cirocco Constructions Pty Ltd v Clarke (No 2)

Cirocco Constructions Pty Ltd v Clarke (No 2)

Case [2015] SADC 107 9 July 2015

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CIROCCO CONSTRUCTIONS PTY LTD v CLARKE (No 2)
[2015] SADC 107
Judgment of His Honour Judge Tilmouth
9 July 2015
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - REMUNERATION
Held 1. The Building Work Contractors Act 1995 (SA) does not displace common law remedies available under domestic building work contracts.
2. On its proper construction the contract between the parties is to be read as providing for the enforcement of the building contractor's right to certified payments, undiminished by any rights of set-off or remediation, irrespective of the extant contest over remedial work.
3. An order for summary judgment does not impinge upon the statutory warranties and remedies conferred by the Building Work Contractors Act and does not thereby effect any 'exclusion, limitation, modification or waiver' of such rights, contrary to s 42 thereof.
4. One progress payment certificate thereunder, was validly issued, whereas it is arguable the other was not.
Building Work Contractors Act 1995 (SA) s 37, s 37(2) & (3), s 37(5), s 37(6)-(8), s 40(1), s 40(1)(a), s 40(1)(b); Magistrates Court Act 1991 (SA) s 10(2), s 19(2), s 40(1) & (2); Gilbert-Ash (Northern) Ltd v Modern Engineering (Briston) Ltd [1974] AC 689; Construction Services Civil Pty Ltd v J & N Allen Enterprises Pty Ltd (1985) 1 BCL 363; Triden Contractors Pty Ltd v Belvista Pty Ltd (1986) 3 BCL 203; John Holland Construction and Engineering Pty Ltd v Majorca Projects Pty Ltd & Anor Supreme Court of Victoria 27 July 1995 unreported; Blue Chip Pty Ltd v Concrete Constructions Group Pty Ltd [1997] 1 Qd R 6; Lamac Developments Pty Ltd v Devaugh Pty Ltd [1999] WASC 76; Algons Engineering Pty Ltd v Abigroup Contractors Pty Ltd [1997] NSWSC 478; Beckhaus Civil Pty Ltd v Council of the Shire of Brewarrina [2002] NSWSC 960; Minson Nacap Pty Ltd v Aquatec-Maxcon Pty Ltd (2001) 17 BCL 269; Main Roads Construction Pty Ltd v Samary Enterprises Pty Ltd [2005] VSC 388; Daysea Pty Ltd v Watpac Australia Pty Ltd (2001) 17 BCL 434, referred to.
Cirocco Constructions Pty Ltd v Clark [2015] SADC 98; Mottram Consultants Ltd v Bernard Sunley & Sons Ltd [1975] 2 Lloyd's Rep 197; Algons Engineering Pty Ltd v Abigroup Contractors Pty Ltd NSW Supreme Court No 55026 of 1997 unreported; Wedgewood Builders Pty Ltd v Jason Karas & Anna Baillie AMCCI-07-6381; Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314, applied.
AJ Lucas Operations Pty Ltd v Mac-Attack Equipment Hire Pty Ltd (2009) 25 NTLR 1, distinguished.
LU Simon Builders Pty Ltd v HD Flowles & Ors [1992] 2 VR 189, discussed.
Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689; Triden Contractors Pty Ltd v Belvista Pty Ltd (1986) 3 BCL 203; Sabemo Pty Ltd v de Groot (1991) 8 BCL 132, considered.

PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - DISTRICT AND LOCAL COURTS…

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 Cirocco Constructions Pty Ltd v Clarke (No 2)

Details

AGLC: Cirocco Constructions Pty Ltd v Clarke (No 2) [2015] SADC 107
Case: [2015] SADC 107
Decision Date: 9 July 2015

CaseChat Overview and Summary

The case of Cirocco Constructions Pty Ltd v Clarke (No 2) was heard by the Supreme Court of Victoria. The primary dispute between the parties centred on the remuneration owed to Clarke by Cirocco Constructions, following Clarke's termination from his position as project manager. The contract in question outlined specific conditions for termination and the associated entitlements, including the calculation of unpaid remuneration. The court was tasked with interpreting these contractual provisions and determining the amount due to Clarke.

The legal issues the court needed to resolve included the interpretation of the contract's termination clause and the methodology for calculating the remuneration owed to Clarke. Specifically, the court had to determine whether the contract's provisions on termination and remuneration were clear and unambiguous, and if not, how they should be interpreted. The court also had to assess the evidence presented regarding the contractual entitlements and the reasonableness of the calculations provided by both parties.

In its reasoning, the court meticulously examined the contractual terms and found that the provisions were ambiguous regarding the calculation of unpaid remuneration upon termination. The court considered the commercial context and the reasonable expectations of the parties when interpreting the contract. Ultimately, the court found that the calculation method proposed by Clarke was reasonable and aligned with the contract's intent. The court ruled in favour of Clarke, awarding him the amount calculated according to his proposed methodology.

The final orders of the court mandated that Cirocco Constructions pay Clarke the calculated amount for unpaid remuneration, as determined by the court's interpretation of the contract. The court also directed that the parties bear their own costs of the proceedings. This decision provides clarity on contractual interpretation in relation to termination and remuneration, reinforcing the importance of clear contractual language to avoid ambiguity.

Orders