Keegan v Ballast Point Pty Ltd

[2022] NSWCA 179

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Keegan v Ballast Point Pty Ltd [2022] NSWCA 179

Hearing dates:

31 August 2022

Date of orders:

13 September 2022

Decision date:

13 September 2022

Before:

Meagher JA at [1];
Brereton JA at [57];
Kirk JA at [58]

Decision:

Appeal dismissed with costs.

Catchwords:

BUILDING AND CONSTRUCTION – residential building contract – where general conditions of contract provided for making by builder of monthly payment claims – where special conditions appointed architect to administer contract on owner’s behalf, including by assessing and certifying builder’s payment claims – whether owner’s obligation to pay and builder’s entitlement to payment only in respect of amounts certified as due and payable by architect

Cases Cited:

Beaufort Developments (NI) Ltd v Gilbert-Ash NI Ltd [1999] 1 AC 266

Costain Building and Civil Engineering Ltd v Scottish Rugby Union plc (1994) 69 BLR 80

Dixon v South Australian Railways Commissioner (1923) 34 CLR 71; [1923] HCA 45

Dunlop & Ranken Ltd v Hendall Steel Structures Ltd [1957] 1 WLR 1102

Glynn v Margetson & Co [1893] AC 351

Henry Boot Construction Ltd v Alstom Combined Cycles Ltd [2005] 1 WLR 3850; [2005] EWCA Civ 814

Lubenham Fidelities and Investments Co Ltd v South Pembrokeshire District Council (1986) 33 BLR 39

Northern Regional Health Authority v Derek Crouch Construction Co Ltd [1984] QB 644

Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd [2002] NSWCA 211

Robertson v French (1803) 4 East 130

V601 Developments Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2021] VSC 849

Walton v Illawarra [2011] NSWSC 1188

Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17

Texts Cited:

S Furst and V Ramsey, Keating on Construction Contracts (11th ed, 2021, Sweet & Maxwell)

Category:

Principal judgment

Parties:

Richard Keegan (Appellant)
Ballast Point Pty Ltd (Respondent)

Representation:

Counsel:

M Green SC with JC Rogers (Appellant)
G Campbell (Respondent)

Solicitors:

Addisons (Appellant)
D’Arcy Sloman Peacock Lawyers (Respondent)

File Number(s):

2022/118812

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

25 March 2022

Before:

S J Gibb DCJ

File Number(s):

2020/319941

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant as Owner and respondent as Builder were parties to a cost plus residential building contract, which was in a standard form prepared by the Master Builders Association of New South Wales. After works had been completed, an issue arose as to whether moneys remained owing by the Owner to the Builder for the cost of works undertaken and a builder’s fee.

The general conditions of contract (clause 17) provided for the making by the Builder of monthly payment claims, which were to be paid within 10 days of the Builder submitting the relevant claim. The Special Conditions appointed an Architect to administer the contract on the Owner’s behalf. Special Condition 3 provided that the Architect was to assess and certify the…