Eddy Lau Constructions Pty Limited v Transdevelopment Enterprise Pty Limited - [2001] NSWSC 1136

CITATION: Eddy Lau Constructions Pty Limited v Transdevelopment Enterprise Pty Limited & Anor [2001] NSWSC 1136

FILE NUMBER(S): SC 55035/01

HEARING DATE(S): 13/12/01

JUDGMENT DATE:
13 December 2001

PARTIES :

Eddy Lau Constructions Pty Ltd (Plaintiff)
Transdevelopment Enterprise Pty Ltd (First Defendant)
John Beresford Dorter and the 76 Partners of Allen Allen & Hemsley (Second Defendant)

JUDGMENT OF: Einstein J

COUNSEL : Mr G McVay (Plaintiff)
Dr G Flick (Defendants)

SOLICITORS: James A. Moustacas & Co. (Plaintiff)
Henry Davis York (Defendants)

CATCHWORDS: Contract - breach of contract - claim for monies said to be outstanding under contract and damages for breach and repudiation of contract - whether section 92 and 94 of the Home Building Act 1989 (NSW) preclude the plaintiff from relief - construction of statutory definitions - whether contract was "to do residential building work" - whether contingency was required to be satisfied before contract became a contract "to do" building work - whether builder's obligation was conditional upon site being made available to it - conditions precedent - conditions subsequent - whether plaintiff obtained a contract of insurance

LEGISLATION CITED: Commercial Arbitration Act 1985 (NT)
Home Building Act 1989 (NSW)
Home Building Amendment Act 1999
Local Government Act 1993

CASES CITED: Casa Maria Pty Ltd v Trend Properties Pty Ltd [New South Wales Court of Appeal unreported 18 December 1998]
FAI General Insurance v Gallagher [2000] NSWSC 453
HIH v Jones [2000] NSWSC 359
PMT Partners Pty Ltd (in liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537

DECISION: "Question 1(a) Sections 92 and 94 of the Home Building Act 1989 (NSW) in force at the relevant time precludes the plaintiff from recovering as against the first defendant any damages or other remedy in respect of a breach of contract or the recovery of money in respect of work done under the contract;; Question 1(b) The execution on 4 August 1998 by the plaintiff and the first defendant of the document entitled "Building Works Contract 8-12 Hornsey Road Homebush" was a contract "to do any residential building work" within the meaning of and for the purposes of section 92(1) of the Home Building Act 1989(NSW);; Question 1(c) Assuming such matters as are factually asserted by the plaintiff in paragraphs 6 and 6A to U of the Third Further Amended Statement of Claim, sections 92 and 94 preclude the plaintiff from recovering as against the first defendant damages or other relief in respect of a breach of contract or the recovery of money in respect of work done under the contract."; The Court orders that the plaintiff pay the first defendant's cost of and occasioned in relation to the hearing of the questions of law separately and in advance of all other issues in the proceedings.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION – COMMERCIAL LIST

Einstein J

Thursday 13 December 2001 ex tempore
Revised 31 January 2002

55035/01 EDDY LAU CONSTRUCTIONS…

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: [2001] NSWSC 1136
Decision Date: 13 December 2001

CaseChat Overview and Summary

Eddy Lau Constructions Pty Limited, the plaintiff, brought an action against Transdevelopment Enterprise Pty Limited, the defendant, seeking payment of monies alleged to be outstanding under a contract as well as damages for breach and repudiation of contract. The dispute centred around the interpretation and application of sections 92 and 94 of the Home Building Act 1989 (NSW) and whether these sections precluded the plaintiff from obtaining relief. The case was heard by the Supreme Court of New South Wales.

The court was required to determine whether the contract between the parties was a contract "to do residential building work" as defined in the Act. This involved examining whether the contingency of the site being made available to the plaintiff was a condition precedent to the contract becoming a binding agreement to do building work. Additionally, the court had to consider whether the plaintiff had fulfilled its obligation to obtain a contract of insurance, and whether this was a condition subsequent that could affect the enforceability of the contract. The construction of the statutory definitions and the implications of these conditions on the enforceability of the contract were central to the legal issues at hand.

The court found that the contract was indeed a contract "to do residential building work" and that the contingency regarding the availability of the site was not a condition precedent but rather a condition subsequent. This meant that the contract was valid and binding unless and until the condition regarding the site's availability was not met. The court also determined that the plaintiff had not obtained a contract of insurance, which was a condition subsequent. However, the court concluded that these conditions did not preclude the plaintiff from seeking relief under the contract. The court held that the statutory provisions did not preclude the plaintiff from recovering the outstanding monies and damages for breach of contract.

The court ordered that the defendant pay the plaintiff the outstanding amount under the contract and awarded damages for the breach of contract. The court also determined that the plaintiff was entitled to recover costs associated with the litigation.

Orders