Classic Deco Pty Ltd v Fine Touch Pty Ltd

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Classic Deco Pty Ltd v Fine Touch Pty Ltd

Citation:

[2020] ACTSC 209

Hearing Dates:

13 – 14 July 2020

DecisionDate:

7 August 2020

Before:

Mossop J

Decision:

See [121]

Catchwords:

BUILDING AND CONSTRUCTION – DEEDS – Deeds of release – dispute between two subcontractors – whether deeds voidable by reason of economic duress – whether there was any evidence of illegitimate pressure – there was not – deeds defeat plaintiff’s claim

Legislation Cited:

Building and Construction Industry (Security of Payment) Act 2009 (ACT)

Building and Construction Industry Security of Payment Act 1999 (NSW)

Cases Cited:

Anozira Pty Ltd v Hunt [2002] ACTCA 10

Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Davey v Herbst [2012] ACTCA 31
Doggett v Commonwealth Bank of Australia [2015] VSCA 351; 47 VR 302

Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50

Texts Cited:

Butterworth, Halsbury’s Laws of England, 3rd ed, vol 11

J D Heydon, Heydon on Contract (Lawbook, 2019)

Parties:

Classic Deco Pty Ltd (Plaintiff)

Fine Touch Pty Ltd (Defendant)

Representation:

Counsel

P Johannessen (Plaintiff)

M Karam and S Gaussen (Defendant)

Solicitors

Johannessen Legal (Plaintiff)

McInnes Wilson Lawyers (Defendant)

File Number:

SC 375 of 2018

MOSSOP J:

Introduction

1. The plaintiff is a company which engages in commercial painting projects.  The plaintiff’s claim relates to four contracts that it entered into with the defendant.  These related to four distinct building projects.  The contracts were entered into between 24 June 2016 and 10 February 2017.  The contracts relate to:

(a)a project at the Commonwealth Scientific and Industrial Research Organisation (the CSIRO Contract);

(b)a project at the National Archives Preservation Facility (the NAPF Contract);

(c)a project at the Palko and Nibu Apartments (the P&N Contract); and

(d)a project at the University of Canberra Hospital (the UC Contract).

1. The work on these projects was, to some extent, concurrent.  In each case the defendant was a subcontractor to a head contractor on the project.  In each case the plaintiff asserts that a deed poll signed as a condition of receiving a final payment from the defendant was entered into as a result of duress and, hence, was voidable.  It seeks to have the deeds declared void and then to claim money which it says was outstanding under the relevant contracts.

1. The evidence led by the plaintiff was manifestly inadequate to establish its entitlement to relief.

1. Unless otherwise identified, dollar amounts in these reasons are inclusive of GST.

The plaintiff’s pleaded claims

1. In order to understand the nature of the plaintiff’s claims it is useful to set out in some detail what is alleged in the plaintiff’s Statement of Claim.

CSIRO Contract

1. The plaintiff alleges that the CSIRO Contract was entered into on 24 June 2016.  It was for painting and related work on a CSIRO construction project.  The plaintiff alleges that the scope of the work was defined by a Bill of Quantities provided by…