Grandview on Berwick Pty Ltd v Bruce - [2004] NSWSC 580

CITATION: Grandview on Berwick Pty Ltd v Bruce [2004] NSWSC 580

HEARING DATE(S): 17/06/04

JUDGMENT DATE:
2 July 2004

JUDGMENT OF: Gzell J

DECISION: Summons dismissed with costs.

CATCHWORDS: CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Standard condition for arbitration of disputes in building contract - Special conditions for resolution by expert - Whether standard condition limited to pe-completion claims and special conditions limited to post-completion claims - Plaintiff claimed special conditions should prevail over standard conditions - Defendant claimed no conflict

LEGISLATION CITED: Strata Schemes Management Act 1996

CASES CITED: Ryan v Fergerson (1909) 8 CLR 731
Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1967-1968) 118 CLR 429
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99

PARTIES :
Plaintiff/ Cross Defendant- Grandview on Berwick Pty Ltd
Defendant/ Cross Claimant- Paula Margaret Bruce

FILE NUMBER(S): SC 1938/03

COUNSEL: Plaintiff/ Cross Defendant- Mr Julian Van Aalst
Defendant/ Cross Claimant- Mr Paul Bolster

SOLICITORS: Plaintiff/ Cross Defendant- Szabo & Associates Solicitors
Defendant/ Cross Claimant- Verekers Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 2 JULY 2004

1938/03 GRANDVIEW ON BERWICK PTY LTD v PAULA MARGARET BRUCE

JUDGMENT

1 The defendant entered into a contract with the plaintiff to purchase a residential lot in a building to be constructed. On completion of the contract, the defendant withheld $44,000. The plaintiff sought a declaration that she was not entitled to do so and orders consequent upon that declaration.

2 Special condition 45.1 of the contract required the plaintiff, before completion, to construct the building in accordance with a development consent of the local authority, finished as specified in a schedule of finishes. Special condition 38 provided that completion was to take place no later than 15 business days after the plaintiff served notice on the defendant of the registration of a strata plan.

3 Clause 7 of the standard conditions of the contract provided that the defendant could make a claim before completion by serving it with a statement of the amount claimed. Clause 7.1 enabled the plaintiff to rescind if the total amount claimed exceeded 5% of the purchase price. Clause 7.2 provided that if the plaintiff did not rescind, the parties were to complete and the lesser of the amount claimed and 10% of the purchase price was to be paid to a deposit holder until the claims were finalised or lapsed. Clause 7.2.3 provided that claims were to be finalised by an arbitrator appointed by the parties or by the President of the Law Society of New South Wales.

4 In reliance upon clause 7 of the standard conditions, the defendant gave written notice prior to completion of her claim for $44,000 noting that it was less than 5% of the purchase price and arose in consequence of a failure to comply with special condition 45.1.

5 Special condition…

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 580
Decision Date: 2 July 2004

CaseChat Overview and Summary

The plaintiff, Grandview on Berwick Pty Ltd, brought an action against the defendant, Bruce, in relation to a building contract. The dispute centred around the interpretation of the contractual provisions for dispute resolution in the building contract, specifically the standard condition for arbitration and the special conditions for resolution by an expert. The plaintiff argued that the special conditions should prevail over the standard conditions, whereas the defendant claimed there was no conflict between the two sets of conditions.

The primary legal issue the court needed to address was whether the standard condition for arbitration of disputes in the building contract was limited to pre-completion claims and whether the special conditions for resolution by an expert were limited to post-completion claims. The court examined the contract in its entirety and considered the principles of contractual interpretation. The court held that the standard condition for arbitration did not preclude the special conditions from applying to post-completion claims and vice versa. The court determined that the standard and special conditions did not conflict and could operate concurrently.

In conclusion, the court ruled in favour of the defendant. The court found that the standard condition for arbitration did not exclude the application of the special conditions for resolution by an expert, and vice versa. The court held that there was no conflict between the two sets of conditions and that they could operate concurrently. As a result, the plaintiff's claim for the special conditions to prevail over the standard conditions was dismissed.

Orders