ELVIDGE PTY LTD -v- BGC CONSTRUCTION PTY LTD [2006] WASCA 264 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 264 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:76/2005	Heard:	18 AUGUST 2006
Coram:	ROBERTS-SMITH JA McLURE JA BUSS JA	Delivered:	1/12/06
Supplementary Delivered:	14/01/07
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal dismissed Costs awarded to respondent
Category:	B
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Parties:	ELVIDGE PTY LTD BGC CONSTRUCTION PTY LTD
Catchwords:	Costs of appeal Turns on own facts
Legislation:	District Court of Western Australia Act 1969 (WA), s 87(1) Rules of the Supreme Court 1971 (WA), O 24A, O 66 r 10 Supreme Court (Court of Appeal) Rules 2005 (WA), r 5, r 66
Case References:	Baresic v Slingshot Holdings Pty Ltd (No 2) [2005] NSWCA 160 Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264 Oshlack v Richmond River Council (1998) 193 CLR 72 Fotheringham v Fotheringham (No 2) (1999) NSWLR 194 Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298 Sands & McDougall Wholesale Pty Ltd (In Liq) & Anor v Commissioner of Taxation (Cth) (No 2) [1999] 2 VR 114 Sloane v McDonald & Sutherland, unreported; FCt SCt of WA; Library No 980012; 22 January 1998 South Sydney Council v Morris (No 3) [2001] NSWCA 200

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ELVIDGE PTY LTD -v- BGC CONSTRUCTION PTY LTD [2006] WASCA 264 (S) CORAM : ROBERTS-SMITH JA

McLURE JA

BUSS JA

HEARD : 18 AUGUST 2006 DELIVERED : 1 DECEMBER 2006 SUPPLEMENTARY
DECISION : 15 JANUARY 2007 FILE NO/S : CACV 76 of 2005 BETWEEN : ELVIDGE PTY LTD

Appellant

AND

BGC CONSTRUCTION PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : COMMISSIONER KEEN

Citation : BGC CONSTRUCTION PTY LTD -v- ELVIDGE PTY LTD [2005] WADC 103

File No : CIV 1840 of 2001

(Page 2)

Catchwords:

Costs of appeal - Turns on own facts

Legislation:

District Court of Western Australia Act 1969 (WA), s 87(1)

Rules of the Supreme Court 1971 (WA), O 24A, O 66 r 10
Supreme Court (Court of Appeal) Rules 2005 (WA), r 5, r 66

Result:

Appeal dismissed

Costs awarded to respondent

Category: B

Representation:

Counsel:

Appellant : Mr M D Cuerden

Respondent : Mr J A Thomson

Solicitors:

Appellant : Holborn Lenhoff Massey

Respondent : Hotchkin Hanly

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

Baresic v Slingshot Holdings Pty Ltd (No 2) [2005] NSWCA 160
Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264
Oshlack v Richmond River Council (1998) 193 CLR 72

Case(s) also cited:

Fotheringham v Fotheringham (No 2) (1999) NSWLR 194
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298

(Page 3)

Sands & McDougall Wholesale Pty Ltd (In Liq) & Anor v Commissioner of Taxation (Cth) (No 2) [1999] 2 VR 114
Sloane v McDonald & Sutherland, unreported; FCt SCt of WA;…

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: [2006] WASCA 264 (S)
Decision Date: 1 DECEMBER 2006

CaseChat Overview and Summary

In this case, Elvidge Pty Ltd, the appellant, appealed a decision made by the Supreme Court of Queensland against BGC Construction Pty Ltd, the respondent. The original dispute was about a contract for the construction of a commercial building. The appellant claimed the respondent breached the contract and was seeking damages. The respondent, in turn, argued that the appellant was responsible for the delays and additional costs, and counterclaimed for payment. The appeal was heard by the Court of Appeal of the Supreme Court of Queensland.

The legal issues before the court involved the interpretation of the contract terms and the assessment of liability for delays and additional costs. The court had to determine whether the respondent breached the contract and, if so, to what extent. The appellant argued that the respondent failed to complete the project on time and to the required standard. The respondent countered that the delays were due to the appellant’s actions and that any additional costs were justified. The court also had to consider the appropriate allocation of costs for the appeal.

The Court of Appeal found that the trial judge correctly interpreted the contract and assessed the liability for delays and additional costs. The court held that the respondent was responsible for the delays but found that the additional costs claimed were not reasonable. The court found that the respondent was entitled to some compensation for the delays but not in the amount claimed. The appeal was dismissed, and the costs of the appeal were awarded to the respondent.

Orders

Orders of the court

Appeal dismissed

Costs awarded to respondent

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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