Devaugh Pty Ltd v Lamac Developments Pty Ltd

Case [1999] WASCA 280


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE FULL COURT (WA)

CITATION:   DEVAUGH PTY LTD -v- LAMAC DEVELOPMENTS PTY LTD [1999] WASCA 280

CORAM:   MALCOLM CJ

MURRAY J
PARKER J

HEARD:   2 SEPTEMBER 1999

DELIVERED          :   8 DECEMBER 1999

FILE NO/S:   FUL 87 of 1999

BETWEEN:   DEVAUGH PTY LTD

Appellant

AND

LAMAC DEVELOPMENTS PTY LTD
Respondent

Catchwords:

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

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     Mr C L Zelestis QC & Mr J D Finlay

Respondent:     Mr K J Martin QC & Mr G J Dunne

Solicitors:

Appellant:     J D Finlay & Co

Respondent:     Slee Anderson & Pidgeon

Case(s) referred to in judgment(s):

Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353

Algons Engineering Pty Ltd v Abigroup Contractors Pty Ltd (1997) 14 BCL 215

Ashville Investments Ltd v Elmer Contractors Ltd (1987) 37 BLR 55

Australian Can Co Pty Ltd v Levin and Co Pty Ltd [1947] VLR 332

Blue Chip Pty Ltd v Concrete Constructions Group Pty Ltd (1996) 13 BCL 31

Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600

BP Refinery (Westernport) Pty Limited v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266

Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337

Dey v Victorian Railway Commissioners (1979) 78 CLR 62

Dowell Australian v Tridan Contractors [1982] 1 NSWLR 6

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Fillight (Runcorn) v Aqua-lift (1989) 45 BLR 27

Fitzgerald v Masters (1956) 95 CLR 420

Government of Gibraltar v Kenney [1956] 2 QB 410

Graham v Seagoe [1964] 2 Lloyd's Rep 564

Heimann v Commonwealth (1938) 38 SR (NSW) 691

Hide and Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310

Lewis Construction (Engineering) Pty Ltd v Southern Electrical Authority of Queensland (1976) 50 ALJR 769

Overseas Union Insurance Ltd v AA Mutual International Insurance Co Ltd [1988] 2 Lloyd's Rep 63

Paterson v Chadwick [1974] 2 All ER 772

Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221

Roose Industries Ltd v Readymix Concrete Ltd [1974] 2 NZLR 246

Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596

Shepperd v Council of Ryde (1952) 85 CLR 1

Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206

The Damianos [1971] 2 QB 588

The Moorcock (1889) 14 PD 64

Trustees Executors and Agency Co Ltd v Riley [1941] VLR 110

Ulysses Compania Naviera SA v Huntingden Petroleum Services…

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Details
AGLC
Devaugh Pty Ltd v Lamac Developments Pty Ltd [1999] WASCA 280
Case
[1999] WASCA 280
Decision Date

CaseChat Overview and Summary

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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MURRAY J

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Ratio Decidendi

Legal Principle Established

Established by: MURRAY J

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