| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
BUILDING CASES LIST
No. 6897 of 2001
| KANE CONSTRUCTIONS PTY LTD (ACN 007 354 396) | Plaintiff |
| v | |
| COLE SOPOV AND ORS | Defendants |
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JUDGE: | WARREN, C.J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 8 August 2005 | |
DATE OF JUDGMENT: | 16 December 2005 | |
CASE MAY BE CITED AS: | Kane Constructions v Sopov (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 492 | |
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CONTRACT — Building contract — Construction — Quantum meruit – Delay – Extension of time claims — Liquidated damages – Scott Schedule – Interest
RESTITUTION — Contract — Margin on a quantum meruit – Nexus between contractual and restitutionary remedies
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G.J. Digby QC, with Mr M.J. Stirling | Deacons |
| For the Defendants | Mr E.N. Magee QC, with Mr M.H. Whitten | Pilley McKellar |
WARREN, C.J.:
Introduction
The reasons for judgment in this matter were delivered on 30 June 2005.[1] I invited the parties to submit proposed minutes of orders reflecting those reasons. Unfortunately, the parties have been unable to reach any substantive agreement on the orders to be made.[2] The proceeding was further adjourned and eventually additional hearings were convened to determine the orders to be made on the reasons for judgment.
[2] Indeed, there is a difference of nearly $3,000,000.00 between the amount sought by the plaintiff and
that sought by the defendants.
I note at the outset that, in the course of correspondence with the Court prior to the hearing of proposed orders, there appeared to have been a suggestion, particularly on the part of the plaintiff, that the judgment that was delivered on 30 June 2005 was a draft judgment. That was not the case, as I stated at the time that I was publishing my reasons. However the availability of the judgment in the Supreme Court library and in the usual way on the internet was held back to enable the parties to inform the Court of any slips and typographical errors and such, given the unusual length of the judgment.[3]
[3]The judgment ran to over 300 pages. In addition, there were some 200 pages of appendices. Evidence in the trial was substantial, complex and technical. The documents before the Court and the transcript ran to thousands of pages. The documentary evidence consisted of 72 court book volumes, over 100 volumes of lever arch folders and numerous sets of plans and specifications.
Subsequently, in argument on final orders, counsel for the plaintiff, Mr Digby, conceded that the reasons for judgment should not be disturbed or recalled.[4]
[4] This concession was made despite paragraph 3 of the Amended Submissions of the Plaintiff Relating to the Reasons for Judgment and Appropriate Orders dated 26 July 2005, wherein the plaintiff referred to the Court’s reasons as “draft” and sought to persuade it to, as it put it, “clarify”, “amend” or “add” to its reasons.
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- Case
- [2005] VSC 492
- Decision Date
CaseChat Overview and Summary
The primary legal issues involved the interpretation of the building contract, the assessment of quantum meruit, and the quantum of liquidated damages. The court needed to consider whether the plaintiff was entitled to additional payments based on the delay caused by the defendant and whether the liquidated damages clause was enforceable. Additionally, the court had to examine the nexus between the contractual and restitutionary remedies available to the plaintiff.
The court held that the plaintiff was entitled to a quantum meruit for the delay caused by the defendant. However, the court did not find a sufficient nexus between the contractual and restitutionary remedies to allow the plaintiff to recover the full amount claimed. The court ruled that the plaintiff could recover the reasonable value of the work performed, subject to a deduction for any benefit received by the defendant. Regarding the liquidated damages, the court found that the clause was enforceable, but the amount claimed was excessive. The court ordered a reduced amount of liquidated damages to be paid by the defendant to the plaintiff.
The final orders included a determination that the plaintiff was entitled to a quantum meruit for the delay caused by the defendant, with a deduction for any benefit received. The court also ordered the defendant to pay a reduced amount of liquidated damages to the plaintiff. Additionally, the court awarded interest on the amount owed by the defendant to the plaintiff, as per the terms of the contract.
Orders
Orders of the court
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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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