DELIVERED ON: 20 October 2014 DELIVERED AT: Hobart HEARING DATES: 11, 12 March 2014 JUDGMENT OF: Blow CJ, Porter and Pearce JJ
CATCHWORDS:
Contracts – Building, engineering and related contracts – The contract – Generally – Formation of contract – Standard form of fixed price contract endorsed "as a cost plus contract" – Whether contract made.
Contracts – Building, engineering and related contracts – The contract – Construction of particular contracts and implied conditions – Determination of cost – Standard form of fixed price contract endorsed "as a cost plus contract" – Estimated price specified – Whether estimated price promissory or representational.
Trade and Commerce – Trade Practices Act 1974 (Cth) and related legislation – Enforcement and remedies – Actions for damages – Assessment or availability of damages – What loss or damage recoverable – Lost commercial opportunity – Misleading representation as to cost of future building works – Loss of opportunity to enter into more advantageous contract.
Counsel: Appellants: S B McElwaine SC Respondent: M E O'Farrell SC Solicitors: Appellants: Shaun McElwaine + Associates Respondent: Toomey Maning & Co
Judgment Number: [2014] TASFC 10 Number of paragraphs: 144
Serial No 10/2014
File No 1045/2013
DAVID GERALD KRONENBERG and ROBYN JOY KRONENBERG v STEPHEN BRIDGE
REASONS FOR JUDGMENT FULL COURT
BLOW CJ PORTER J PEARCE J 20 October 2014
Order of the Court
Further hearing of appeal adjourned.
Serial No 10/2014 File No 1045/2013
DAVID GERALD KRONENBERG and ROBYN JOY KRONENBERG v STEPHEN BRIDGE
REASONS FOR JUDGMENT FULL COURT
BLOW CJ 20 October 2014
The appellants, David and Robyn Kronenberg, own some land at Eaglehawk Neck. The respondent, Stephen Bridge, is a builder. On 2 January 2007 the appellants entered into an arrangement with the respondent for him to build a house on their land. The respondent worked on the construction of the house from January 2007 until October 2008, but did not complete it. During that period the appellants made payments to the…
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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AGLC
Kronenberg v Bridge [2014] TASFC 10
Case
[2014] TASFC 10
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between Kronenberg and Bridge regarding the formation of a building contract. The contract in question was a standard form fixed price contract that had been endorsed with the words "as a cost plus contract". The central question before the court was whether, despite this endorsement, a binding contract had been made between the parties.
The court was required to determine the legal effect of the conflicting terms within the contract document. Specifically, it had to consider whether the endorsement "as a cost plus contract" fundamentally altered the nature of the standard form fixed price contract, thereby preventing the formation of a binding agreement, or if a contract could still be found to exist despite the apparent contradiction.
The court's reasoning focused on the principles of contract formation, particularly the requirement for a clear and unequivocal agreement on essential terms. The judges considered whether the parties had reached a consensus *ad idem* given the contradictory nature of the contract's terms. The court noted that the endorsement created an ambiguity that cast doubt on the parties' intention to be bound by either a fixed price or a cost plus arrangement.