Clyde Contractors Pty Ltd v Northern Beaches Dev Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Clyde Contractors P/L v Northern Beaches Dev. P/L
[2001] QCA 314

PARTIES:

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 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal
Application for Security for Costs

ORIGINATING 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 respondent

SOLICITORS:

Deacons as town agents for Suthers Taylor Lawyers (Townsville) for the appellant
Swanwick Murray Roche Lawyers (Rockhampton) for the respondent

1. McMURDO P:  I agree with the reasons for judgment of Williams JA and with the orders he proposes.

1. 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.

1. 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.

1. 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…