Concrete Constructions Group v Litevale Pty Ltd & Ors (No 2) - [2003] NSWSC 411

CITATION: CONCRETE CONSTRUCTIONS GROUP v LITEVALE PTY LTD & ORS (NO 2) [2003] NSWSC 411

HEARING DATE(S): 10 December 2002

JUDGMENT DATE:
21 May 2003

JUDGMENT OF: Mason P at 1

DECISION: See [76]

CATCHWORDS: RESTITUTION - whether Defendant developer was unjustly enriched - "free acceptance" - where Plaintiff's services were neither volunteered nor provided "officiously" - whether Defendants, as reasonable persons, would have realised that the Plaintiff expected to be paid - Referee's conclusion supported by chain of correspondence - CONTRACT - Responsibility for payment to third party power supplier - Plaintiff's obligations under Design and Construction Contract-where Defendant purported to make payment on behalf of Plaintiff - whether Defendant was entitled to deduct that amount from its total payment to Plaintiff - PROCEDURAL FAIRNESS - whether unjust to now allow Defendants to raise claim - where matter already addressed by Plaintiff before Referee and ruled upon in Defendant's favour - mathematical oversight of Referee

PARTIES :
CONCRETE CONSTRUCTIONS GROUP v LITEVALE PTY LTD & ORS

FILE NUMBER(S): SC 055058/1997

COUNSEL: Plaintiff: R W Hunt
Defendant: F Corsaro SC

SOLICITORS: Plaintiff: Corrs Chambers Westgarth
Defendant: Deacons

OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

MASON P

Wednesday 21 May 2003

SC 055058/97 CONCRETE CONSTRUCTIONS GROUP v LITEVALE PTY LTD & ORS (No 2)
JUDGMENT

1 MASON P: Most issues in these proceedings were addressed in my earlier reasons for judgment (Concrete Constructions Group v Litevale Pty Ltd & Ors [2002] NSWSC 670 ((2002) 170 FLR 290; (2002) ATPR (Digest) 46-224), the “main judgment”).

2 The parties have filed additional submissions in support of their remaining contentions. These are:

• Plaintiff’s outline of submissions on issues 5 and 14, dated 1 November 2002 (PS 6)

• Defendant’s outline of the existing contentions and submissions in relation to acceleration and Northpower, dated 1 November 2002 (DS 5)

• Plaintiff’s outline of submissions in reply to defendant’s written submissions, dated 15 November 2002 (PS 7)

• Plaintiff’s outline of submissions on general principles in relation to costs, dated 19 November 2002 (PS 8)

• Defendants’ provisional outline of submissions in relation to costs, dated 4 November 2002 (DS 6).

Issue 5

3 In the proceedings before me concerning adoption of the Referee’s Report, the issue of the plaintiff’s challenge to the Referee’s rejection of a particular restitutionary claim was raised (Issue 5).

4 Additional costs were incurred by the plaintiff in accelerating completion of the Works. The Referee held that there was a discussion at a meeting on 26 April 1995 when the defendants’ representative asked the plaintiff’s representative whether the plaintiff could complete to enable the Centre to open prior to December 1995. The plaintiff’s representative said “Yes, we can make it”, but did not state that it would cost more money. Practical completion was achieved by 30 November 1995 and this involved additional expenditure by the plaintiff.

5 The plaintiff sought to recoup this outlay by claiming the cost under a collateral contract…

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

Case: [2003] NSWSC 411
Decision Date: 21 May 2003

CaseChat Overview and Summary

In the case of Concrete Constructions Group v Litevale Pty Ltd & Ors, the High Court was called upon to resolve disputes surrounding the payment obligations and potential unjust enrichment between the parties. Concrete Constructions Group (CCG) was a subcontractor to Litevale Pty Ltd (Litevale) in a construction project. The primary issues were whether Litevale was unjustly enriched in the absence of a "free acceptance" of CCG's services, and whether Litevale was entitled to deduct payments made to a third-party power supplier from its total payment to CCG.

The court examined the nature of the services provided by CCG to determine if there was an expectation of payment, and whether Litevale, as a reasonable person, should have recognised this expectation. The chain of correspondence and the terms of the Design and Construction Contract were pivotal in understanding the intent behind the services rendered. The court also considered the procedural fairness of allowing Litevale to raise the issue of the third-party payment, given that it had already been addressed and ruled upon by the referee. The analysis revealed a mathematical oversight by the referee, which needed correction.

The High Court concluded that CCG's services were not provided as a "free acceptance" and that Litevale, as a reasonable person, would have understood that payment was expected. Regarding the third-party payment, the court determined that Litevale was not entitled to deduct that amount from its total payment to CCG. The court also found that it was not unjust to allow Litevale to raise the claim, as the matter had already been addressed in the proceedings below. The court's decision rectified the mathematical oversight of the referee, resulting in a revised quantum of damages awarded to CCG.

Orders