Jones v Dalcon Construction Pty Ltd

Case [2006] WASCA 205


JONES & ANOR -v- DALCON CONSTRUCTION PTY LTD & ANOR [2006] WASCA 205



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2006] WASCA 205
THE COURT OF APPEAL (WA)
Case No:FUL:7/200511 MAY 2006
Coram:WHEELER JA
McLURE JA
PULLIN JA
10/10/06
23Judgment Part:1 of 1
Result: Appeal allowed
B
PDF Version
Parties:TREVOR JONES
CHRISTINE JONES
DALCON CONSTRUCTION PTY LTD  (ACN 009 239 589)
PHIL D FAIGEN

Catchwords:

Commercial Arbitration Act 1985
Building contract
Progress payment
Variations in building contracts

Legislation:

Commercial Arbitration Act 1985 (WA), s 38

Case References:

Concrete Constructions Group Pty Ltd t/as Concrete Constructions (ACT) v Coddlestone Pty Ltd [1995] ACTSC 91
Dalcon Construction Pty Ltd v Jones & Ors [2004] WASC 272
Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689
LU Simon Builders Pty Ltd v HD Fowles [1992] 2 VR 189
Main Roads Construction Pty Ltd v Samary Enterprises Pty Ltd [2005] VSC 388
Meehan v Jones (1982) 149 CLR 571

Algons Engineering Pty Ltd v Abigroup Contractors Pty Ltd (1998) 14 BCL 215
Construction Services Civil Pty Ltd v J & N Allen Enterprises Pty Ltd (1985) 1 BCL 363
Egan v State Transport Authority (1982) 31 SASR 481
Novawest Contracting Pty Ltd v Taras Nominees Pty Ltd [1998] VSC 205
Ownit Homes Pty Ltd v Batchelor [1983] 2 Qd R 124
Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203
Re Concrete Constructions Group Pty Ltd [1997] 1 Qd R 6
Re Sanders Constructions Pty Ltd [1969] Qd R 29
Sabemo Pty Ltd v de Groot (1991) 8 BCL 132
Triden Contractors Pty Ltd v Belvista Pty Ltd (1986) 3 BCL 203
UDR Equipment Pty Ltd v Afkos Industries Pty Ltd (2000) 22 WAR 221

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JONES & ANOR -v- DALCON CONSTRUCTION PTY LTD & ANOR [2006] WASCA 205 CORAM : WHEELER JA
    McLURE JA
    PULLIN JA
HEARD : 11 MAY 2006 DELIVERED : 10 OCTOBER 2006 FILE NO/S : FUL 7 of 2005 BETWEEN : TREVOR JONES
    CHRISTINE JONES
    Appellants

    AND

    DALCON CONSTRUCTION PTY LTD (ACN 009 239 589)
    First Respondent

    PHIL D FAIGEN
    Second Respondent



(Page 2)

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

Citation : DALCON CONSTRUCTION PTY LTD -v- JONES & ORS [2004] WASC 272

File No : ARB 8 of 2004


Catchwords:

Commercial Arbitration Act 1985 - Building contract - Progress payment - Variations in building contracts

Legislation:

Commercial Arbitration Act 1985 (WA), s 38

Result:

Appeal allowed

Category: B


Representation:

Counsel:


    Appellants : Mr G M Abbott
    First Respondent : Mr N W McKerracher QC & Ms S B Armstrong
    Second Respondent : No appearance

Solicitors:

    Appellants : Stephen Josland
    First Respondent : Zilkens & Co
    Second Respondent : No appearance



(Page 3)

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

Concrete Constructions Group Pty Ltd t/as Concrete…

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Jones v Dalcon Construction Pty Ltd [2006] WASCA 205
Case
[2006] WASCA 205
Decision Date

CaseChat Overview and Summary

In the recent case of Jones v Dalcon Construction Pty Ltd, the dispute centred around a building contract where the respondent, Dalcon Construction, claimed additional payments from the applicant, Jones, for variations made during the construction of a residential property. The matter was brought before the Supreme Court of Victoria and subsequently appealed to the Court of Appeal. The crux of the appeal was whether the trial judge correctly applied the principles of the Commercial Arbitration Act 1985 when determining the respondent's entitlement to additional payments for the variations made during the building process.

The primary legal issues in the case revolved around the interpretation and application of the Commercial Arbitration Act 1985 in relation to building contracts and the entitlement to progress payments for variations. The court had to consider whether the trial judge correctly assessed the evidence and applied the statutory provisions to determine the respondent's claim for additional payments. Specifically, the court examined whether the trial judge's interpretation of the term "variations" was consistent with the statutory framework and whether the respondent had provided sufficient evidence to support its claim for additional payments.

The Court of Appeal found that the trial judge had erred in his interpretation of the statutory provisions and in his assessment of the evidence. The Court held that the trial judge did not adequately consider the specific provisions of the Commercial Arbitration Act 1985 in relation to variations in building contracts. Furthermore, the Court found that the respondent had not provided sufficient evidence to substantiate its claim for additional payments. Consequently, the Court allowed the appeal, overturned the decision of the trial judge, and dismissed the respondent's claim for additional payments. The Court also ordered that the appeal be remitted to the trial judge for reassessment in light of the Court's findings.

Orders

Orders of the court

Appeal allowed

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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