JONES & ANOR -v- DALCON CONSTRUCTION PTY LTD & ANOR [2006] WASCA 205
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 205 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:7/2005 | 11 MAY 2006 | |
| Coram: | WHEELER JA McLURE JA PULLIN JA | 10/10/06 | |
| 23 | Judgment 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
- 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…
Continue reading Jones v Dalcon Construction Pty Ltd
Sign in free to access the full text
Details
- AGLC
- 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.
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.