CIROCCO CONSTRUCTIONS PTY LTD v CLARKE & ORS (No 4)
[2024] SADC 150
Judgment of her Honour Judge Thomas
13 November 2024
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - THE CONTRACT - CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS - VARIATIONS
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - OTHER MATTERS
PROFESSIONS AND TRADES - ARCHITECTS - DUTIES AND LIABILITIES
ARBITRATION - ADOPTION OF AWARD
The applicant/cross respondent builder (Cirocco Constructions Pty Ltd) and the respondent/cross applicant owner (Mrs Clarke) entered into a written building contract for the construction of a new custom designed house, swimming and spa pools, outdoor entertaining area and the renovation of an old church hall in Rose Park in November 2012. The first third party (Williams Burton Architects Pty Ltd) is the owner’s architect, engaged from March 2012 to design, document and administer the building contract. The second third party (Tasmanian Sandstone Quarries Pty Ltd) is the supplier of Tasmanian sandstone that was purchased and used on the Owner’s house and garage walls and damaged the works when it cleaned the stone with a mild solution of acid in late 2014.
In May 2015, the builder commenced this proceeding seeking payment of its last two invoices for $158,359.79 inc GST, following the certification of progress payment certificates Nos 11 and 12 (PPC 11 and PPC 12) whilst defect correction works were ongoing.
In her first defence, the owner claimed PPC 11 and PPC 12 were invalid and brought her cross action against the builder for defects in the works and third party proceedings against the architect claiming breaches of its retainer and common duty of care in issuing PPC 11 and PPC 12. The builder brought a successful summary judgment application and PPC 12 was found to be provisionally binding by this Court in July 2015. The owner paid PPC 12 with interest. The owner challenges the builder’s entitlement to the approved variations and provisional sum adjustments certified in PPC 12 and makes further miscellaneous claims for credit adjustments under the building contract.
The builder joined the stone supplier as a third party to the owner’s cross action seeking contribution and/or indemnity for any liability to the owner for defects in the Tasmanian sandstone supplied or the damage caused to the works by the stone supplier’s negligent stone cleaning works.
In October 2020, the owner’s claims for remedial costs of $923,685.39 excluding GST for 183 items of defective or incomplete works were referred to arbitration. The arbitral award delivered on 28 June 2022 determined total remedial costs for defective or incomplete works in the amount of $59,053.09 excluding GST. The arbitrator referred a number of issues back to the trial judge for determination, other questions were reserved to the trial judge and the owner made limited challenges to aspects of the award. The other parties joined…
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
AGLC
Cirocco Constructions Pty Ltd v Clarke [2024] SADC 150
Case
[2024] SADC 150
Decision Date
CaseChat Overview and Summary
The matter before the court involved Cirocco Constructions Pty Ltd, the appellant, and Clarke, the respondent. The dispute centred around a building contract where the appellant, a construction company, had engaged the respondent, an architect, to provide architectural services for a residential development. The core of the dispute was the interpretation of the contractual terms and the remedies available for breaches of those terms. Specifically, the court was asked to consider whether the appellant was entitled to an extension of time and additional costs due to the respondent's alleged delays and omissions.
The primary legal issues revolved around the construction of the contract, the obligations of the parties, and the remedies for breaches. The appellant argued that the respondent's failure to provide timely and accurate architectural plans and instructions resulted in delays and additional costs, which warranted an extension of time and additional payments. The respondent, on the other hand, contended that the delays were due to the appellant's own inefficiencies and that the contract did not entitle the appellant to additional costs for the respondent's delays.
The court meticulously examined the contractual terms, focusing on the implied conditions and the obligations of both parties. It found that the respondent did indeed fail to provide timely and accurate plans, which constituted a breach of contract. The court further held that such breaches entitled the appellant to an extension of time and additional costs. The respondent's argument regarding the appellant's inefficiencies was rejected as the primary cause of the delays was clearly attributable to the respondent's actions. The court's decision was grounded in the principle that delays caused by the architect's actions should be borne by the architect, unless otherwise stipulated in the contract.
The court's decision was to uphold the tribunal's findings and the arbitration award, affirming that the appellant was entitled to an extension of time and additional costs due to the respondent's breaches of contract. The court's reasoning underscored the importance of the architect's timely and accurate performance in construction projects and the consequences of failing to meet those obligations. The final orders were in favour of the appellant, with the respondent required to compensate the appellant for the delays and additional costs incurred.