SUPREME COURT OF QUEENSLAND
CITATION: Clyde Contractors P/L v Northern Beaches Dev. P/L
[2001] QCA 314PARTIES: CLYDE CONTRACTORS PTY LTD T/A CLYDE CONSTRUCTIONS ACN 060 294 975
(plaintiff/respondent)
v
NORTHERN BEACHES DEVELOPMENTS PTY LTD ACN 052 996 371
(defendant/appellant)FILE NO/S: Appeal No 7741 of 2000
DC No 71 of 2000DIVISION: Court of Appeal PROCEEDING: General Civil Appeal
Application for Security for CostsORIGINATING COURT: District Court at Mackay DELIVERED ON: 7 August 2001 DELIVERED AT: Brisbane HEARING DATE: 19 July 2001 JUDGES: McMurdo P, Williams JA, Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER: 1. Appeal dismissed
2. Application for security for costs dismissed
3. Order that the appellant pay the respondent’s costs of and incidental to the appeal and the application for security for costs to be assessed
CATCHWORDS: CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – EFFECT OF ACCEPTANCE OR CERTIFICATE OF PAYMENT ON RIGHTS OF OWNER – whether or not practical completion had been achieved, and if so at what time – where letter issued by superintendent stated that practical completion had been reached – whether respondent entitled to return of retention moneys
CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – THE CONTRACT - CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS - definition of “practical completion”
COUNSEL: A J Moon for the appellant
D V C McMeekin SC for the respondentSOLICITORS: Deacons as town agents for Suthers Taylor Lawyers (Townsville) for the appellant
Swanwick Murray Roche Lawyers (Rockhampton) for the respondent
McMURDO P: I agree with the reasons for judgment of Williams JA and with the orders he proposes.
WILLIAMS JA: The respondent/plaintiff entered into a contract with the appellant/defendant pursuant to which the respondent was to carry out certain work (earthworks, roadworks, drainage, water supply, and sewerage reticulation) with respect to a land development for the appellant. General Conditions of Contract AS2124-1992 (as amended) formed part of the contractual documents.
The respondent claims that a stage of practical completion had been achieved on 22 March 1999, and that the appellant failed, in accordance with its contractual obligations, to pay monies owing to it. Proceedings were commenced by the respondent in the District Court seeking to recover two separate liquidated sums:
(i) $14,535 being the shortfall between the total of progress payment certificates issued by the superintendent appointed pursuant to the contract and the amount actually paid by the appellant;
(ii) $35,670 being retention monies to be released in accordance with the terms of the contract at the expiration of the defects liability period which ran for 12 months from the date of practical completion.
Both the statement of claim and defence and counterclaim particularised progress payment certificates totalling $790,837, and actual payments by the appellant of $776,302. But the appellant denied that the balance, namely $14,535, was owing to the respondent. No basis for that denial was alleged in the pleading. Further, the…
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- Case
- [2001] QCA 314
- Decision Date
CaseChat Overview and Summary
The court examined the contractual terms and relevant industry practices to ascertain the meaning of "practical completion". It found that the superintendent's letter, while indicating that practical completion had been reached, did not necessarily establish a definitive moment of practical completion. The court held that practical completion is not merely a subjective assertion but requires an objective assessment of the works against the contract specifications. The superintendent's letter was considered insufficient to establish practical completion in the absence of other corroborating evidence or a formal certificate of practical completion. As a result, the respondent was not entitled to the return of the retention moneys.
The appeal was dismissed, and the application for security for costs was also dismissed. The court ordered that the appellant pay the respondent's costs of and incidental to the appeal and the application for security for costs. This decision underscores the importance of clear and objective criteria for determining practical completion in building contracts, and the necessity for formal documentation to support such claims.
Orders
Orders of the court
1. Appeal dismissed
2. Application for security for costs dismissed
3. Order that the appellant pay the respondent’s costs of and incidental to the appeal and the application for security for costs to be assessed
Background
Background to the litigation
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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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