Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd - [2004] NSWSC 754

CITATION: Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 754

HEARING DATE(S): 03/08/04

JUDGMENT DATE:
19 August 2004

JURISDICTION:
Equity Division
Technology and Construction List

JUDGMENT OF: Barrett J

DECISION: Short minutes to be brought in

CATCHWORDS: STATUTES - interpretation - statutory provision which creates an entitlement, is expressed to apply to pre-existing cases and is introduced by "Despite section 92(2) and subsection (1)" - "despite" as modern synonym of "notwithstanding" - whether "despite" specification limits the provision to cases of kinds contemplated by the specified sections or ensures its operation in all cases including those contemplated by those sections

LEGISLATION CITED: Home Building Act 1989, ss.92, 94
Home Building Amendment Act 1999
Home Building Legislation Amendment Act 2001

CASES CITED: Attorney General of the Commonwealth v Oates (1999) 198 CLR 162
Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2001] NSWSC 1136
Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273
In re Bland Bros and the Council of the Borough of Inglewood (No 2) [1920] VLR 522
Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352
Price v J F Thompson (Qld) Pty Ltd [1990] 1 QdR 278
Sir Thomas Cecil's Case (1597) 7 Rep 18b; 77 ER 440

PARTIES :
Eddy Lau Constructions Pty Limited - Plaintiff
Transdevelopment Enterprise Pty Limited - Defendant

FILE NUMBER(S): SC 55035/01; 55009/02

COUNSEL: Mr G J McVay - Plaintiff
Mr J B Simpkins SC - Defendant

SOLICITORS: James A Moustacas & Co - Plaintiff
Henry Davis York - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND
CONSTRUCTION LIST

BARRETT J

THURSDAY, 19 AUGUST 2004

55035/01 - EDDY LAU CONSTRUCTIONS PTY LTD v TRANSDEVELOPMENT ENTERPRISE PTY LTD & ORS
55009/02 - EDDY LAU CONSTRUCTIONS PTY LTD v TRANSDEVELOPMENT ENTERPRISES PTY LTD

JUDGMENT

1 In reasons published on 7 April 2004 (Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273), I dealt with a number of matters relevant to the determination of two proceedings, being 55035/01 and 55009/02. At paragraph 11 of those reasons, I set out an agreed statement of issues provided by the parties, noting their consensus that, apart from the defendant’s claims under the Trade Practices Act 1974 (Cth) advanced in its cross-claim in 55035/01, decisions on those issues would lead to determination of the whole of their controversy.

2 My consideration of the identified issues proceeded on the footing that there was no dispute as to the applicability to the circumstances of the case of provisions of the Home Building Act 1989 brought into existence by the Home Building Legislation Amendment Act 2001 and, in particular, s.94(1A) inserted by that amending Act:

“Despite section 92 (2) and subsection (1), if a court or tribunal considers it just and equitable, the contractor, despite the absence of the required contract of insurance, is entitled to recover money in respect of that work on a quantum meruit…

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: [2004] NSWSC 754
Decision Date: 19 August 2004

CaseChat Overview and Summary

Eddy Lau Constructions Pty Ltd sought a declaration from the court regarding their entitlement to a payment from Transdevelopment Enterprise Pty Ltd. The dispute involved the interpretation of a statutory provision which, by using the term "despite", sought to create an entitlement to payment for pre-existing cases. The court was tasked with determining whether the use of the word "despite" in the statutory provision limited its application to cases of the kind contemplated by the specified sections or whether it ensured the provision's operation in all cases, including those contemplated by the specified sections.

The primary legal issue before the court was the interpretation of the statutory provision which used the word "despite". The court had to decide whether the use of "despite" in the provision limited its application to cases of the kind contemplated by the specified sections, or whether it ensured the provision's operation in all cases, including those contemplated by the specified sections. The court considered the meaning of the word "despite" and whether it acted as a modern synonym for "notwithstanding". The court also considered whether the use of "despite" indicated a limitation on the provision's application or whether it was intended to ensure the provision's operation in all cases.

The court held that the use of the word "despite" in the statutory provision indicated that it was intended to ensure the provision's operation in all cases, including those contemplated by the specified sections. The court found that "despite" was a modern synonym for "notwithstanding" and that its use in the provision did not limit its application to cases of the kind contemplated by the specified sections. The court held that the provision was intended to apply to all cases, including those contemplated by the specified sections. The court found that the use of "despite" did not limit the provision's application but rather ensured its operation in all cases.

The court made a declaration that the statutory provision applied to all cases, including those contemplated by the specified sections. The court found that the use of "despite" in the provision did not limit its application but rather ensured its operation in all cases. The court held that the statutory provision was intended to apply to all cases, including those contemplated by the specified sections. The court made a declaration to this effect and ordered that the parties bear their own costs of the proceeding.

Orders