CMC Cairns v Isocob

[2001] QSC 488

SUPREME COURT OF QUEENSLAND

CITATION:

CMC Cairns v Isocob [2001] QSC 488

PARTIES:

CMC CAIRNS PTY LTD
(Applicant)
ISICOB PTY LTD
(Respondent)

FILE NO/S:

Application 63 of 2001

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

9 November 2001

DELIVERED AT:

Cairns

HEARING DATE:

JUDGE:

Jones J

ORDER:

1.That the arbitration proceedings commenced by the respondent on or about 24 July 2000 be terminated.   

2.That the respondent, pay to the applicant its costs of and incidental to the arbitration proceedings and to this application to be assessed on the standard basis. 

CATCHWORDS:

COUNSEL:

TWD Lewis Solicitor for the applicant
CGSL Jensen for the respondent

SOLICITORS:

Williams Graham & Carman for the applicant
Thompson Royds for the respondent

1. The applicant CMC Cairns Pty Ltd (CMC) contracted with Isicob Pty Ltd (Isicob) for the provision of labour, formwork, materials, plant and equipment to complete concrete work at the development of accommodation units at Yorkeys Knob, Cairns.  The terms of the contract were reduced to writing as a sub-contract agreement.  The execution of the final document occurred after the work had been in progress for some time.

1. The first contractual document was prepared on 15 December 1993 but was not executed.  It was essentially a schedule of rates with an estimated scope of works and quantities, all of which were stated to be “provisional”.  See ex. WO2.[1]  Relevant working drawings (A3 size) were given to Isicob only on 8 January 1994.  As a consequence of this, variations were made to the schedule of rates. These variations were noted on the contractual document which is ex WO3.[2]  This document, which incorporated the variations to the printed terms, appears to have been executed by Isicob on 8 February 1994.  It also appears to have been executed, or at least initialled, by a representative of CMC.  There is an issue as to when this execution occurred and therefore, whether CMC have accepted the alterations to the printed terms.  Isicob asserts that the variations to the printed terms were consistent with other contracts which had been entered into between these parties both before and after the subject contract.  If the arbitration proceedings were permitted to continue this would be a proper matter for the consideration of the arbitrator but it does not affect the determination of this application.

   [1]Exhibit to affidavit of Wolf Odenthal, sworn 30 May 2001

   [2]Ibid

1. The work commenced on 12 December 1993 with an agreed completion date of 13 May 1994.  The work was in fact completed only on 9 June 1994.

1. Throughout the course of the works CMC made progress payments which the parties have agreed total $218.801.61.  These payments appear to have been made on progressive estimations as to the work completed at different times.  By facsimile transmission dated 20 May, 1994, CMC sent to Isicob a calculation of the subcontract value resulting from measurements of the Isicob work.  The facsimile finished with the expression – “Please check it and let me know whether there are errors”.