Contracts - Building subcontract - Construction and interpretation - Remuneration - Progress payments - Main Contractors' Representative to assess claims - No Main Contractors' Representative appointed - Implication of term - Claims to be assessed by main contractor
Contracts - Building subcontract - Remuneration - Progress payments - Provision for subcontractor to be paid claims not assessed within 35 days - Summary judgment for amount of claims not so assessed
Trustees Executors and Agency Co Ltd v Riley [1941] VLR 110
Ulysses Compania Naviera SA v Huntingden Petroleum Services…
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.
Continue reading Devaugh Pty Ltd v Lamac Developments Pty Ltd
Devaugh Pty Ltd sued Lamac Developments Pty Ltd over a building subcontract dispute. Devaugh Pty Ltd alleged that Lamac Developments Pty Ltd had not paid progress payments due under the subcontract and sought summary judgment for the amount of those payments. The dispute arose due to the subcontract's provisions concerning the assessment of claims and progress payments. The subcontract stipulated that a Main Contractors' Representative would assess claims, but no such representative was appointed. The subcontract also provided that if claims were not assessed within 35 days, the subcontractor was to be paid the claims.
The central legal issues were whether the absence of a Main Contractors' Representative implied a term that claims would be assessed by the main contractor, and whether the subcontractor was entitled to payment for claims not assessed within 35 days. Devaugh Pty Ltd argued that the absence of a Main Contractors' Representative implied a term that the main contractor would assess the claims, and since the claims were not assessed within the specified period, they were entitled to the progress payments. Lamac Developments Pty Ltd contended that no such term was implied and that Devaugh Pty Ltd was not entitled to payment for the unassessed claims.
The court found that the absence of a Main Contractors' Representative did not imply a term that claims would be assessed by the main contractor. The subcontract explicitly stated that a Main Contractors' Representative would assess claims, and the absence of such a representative did not lead to an implication of a different assessment process. Furthermore, the court held that the subcontractor was not entitled to payment for claims not assessed within 35 days because the subcontract did not provide for such a consequence. Consequently, the court dismissed Devaugh Pty Ltd's application for summary judgment.