KULLEEN Pty Ltd as trustee for the Gismondi Family Trust trading as Italsteel Structural Engineering WA v Rostruct Pty Ltd - [2013] WADC 172

KULLEEN PTY LTD as trustee for the GISMONDI FAMILY TRUST trading as ITALSTEEL STRUCTURAL ENGINEERING WA -v- ROSTRUCT PTY LTD [2013] WADC 172

Last Update: 12/11/2013

KULLEEN PTY LTD as trustee for the GISMONDI FAMILY TRUST trading as ITALSTEEL STRUCTURAL ENGINEERING WA -v- ROSTRUCT PTY LTD [2013] WADC 172
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 172
Case No:	CIV:896/2012	Heard:	2 SEPTEMBER 2013
Coram:	STEVENSON DCJ	Delivered:	08/11/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	48	Judgment Part:	1 of 1
Result:	Subcontract is a fixed sum contract, not a rates contract No repudiation of outstanding works by Rostruct Other claims allowed in part
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	KULLEEN PTY LTD as trustee for the GISMONDI FAMILY TRUST trading as ITALSTEEL STRUCTURAL ENGINEERING WA ROSTRUCT PTY LTD
Catchwords:	Contract Contract formation Construction Whether fixed sum or rates contract Contractual terms Interpretation of contract terms Breach of contract Alleged repudiation Right to terminate Damages Overpayment
Legislation:	Construction Contracts Act 2004 s 13, s 14
Case References:	Command Energy Pty Ltd v Nauru Phosphate Royalties Trust [2003] VSC 261 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : KULLEEN PTY LTD as trustee for the GISMONDI FAMILY TRUST trading as ITALSTEEL STRUCTURAL ENGINEERING WA -v- ROSTRUCT PTY LTD [2013] WADC 172 CORAM : STEVENSON DCJ HEARD : 2 SEPTEMBER 2013 DELIVERED : 8 NOVEMBER 2013 FILE NO/S : CIV 896 of 2012 BETWEEN : KULLEEN PTY LTD as trustee for the GISMONDI FAMILY TRUST trading as ITALSTEEL STRUCTURAL ENGINEERING WA

Plaintiff

AND

ROSTRUCT PTY LTD

Defendant

Catchwords:

Contract - Contract formation - Construction - Whether fixed sum or rates contract - Contractual terms - Interpretation of contract terms - Breach of contract - Alleged repudiation - Right to terminate - Damages - Overpayment

Legislation:

Construction Contracts Act 2004 s 13, s 14

(Page 2)

Result:

Subcontract is a fixed sum contract, not a rates contract
No repudiation of outstanding works by Rostruct
Other claims allowed in part

Representation:

Counsel:

Plaintiff : Mr S D Pentony

Defendant : Mr G J Douglas

Solicitors:

Plaintiff : Lavan Legal

Defendant : Hotchkin Hanly Lawyers

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

Command Energy Pty Ltd v Nauru Phosphate Royalties Trust [2003] VSC 261
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623

(Page 3)

STEVENSON DCJ

Introduction

1 This action concerns four unresolved disputes between the plaintiff (Italsteel) and the defendant (Rostruct) arising out of a subcontract made in April 2010 for the erection of structural steel at the Bulkyplex Complex in Cannington (the works). The development comprises four buildings known as buildings A, B, C and D (the site). But for these issues, the works are complete.

2 Italsteel fabricates and supplies structural steel. Rostruct is a steel rigger engaged in the business of erecting structural steel.

3 The first dispute…

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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Details

AGLC: KULLEEN PTY LTD as trustee for the GISMONDI FAMILY TRUST trading as ITALSTEEL STRUCTURAL ENGINEERING WA -v- ROSTRUCT PTY LTD [2013] WADC 172
Case: [2013] WADC 172
Decision Date: 8 NOVEMBER 2013

CaseChat Overview and Summary

The case involved Kulleen Pty Ltd, as trustee for the Gismondi Family Trust trading as Italsteel Structural Engineering WA, as the plaintiff, and Rostruct Pty Ltd, as the defendant. The dispute centred around the interpretation and execution of a subcontract under which Italsteel was to provide structural engineering services to Rostruct for a fixed sum. The dispute escalated to claims of repudiation of contract, alleged breaches, and claims for overpayment.

The key legal issues the court had to address were whether the subcontract was a fixed sum contract or a rates contract, the nature of any repudiation by Rostruct, and the validity of claims for damages. The plaintiff argued that the subcontract was a fixed sum contract, and that Rostruct repudiated its obligations. The defendant maintained that the contract was a rates contract and denied any repudiation. Additionally, Rostruct claimed that it had overpaid Italsteel.

The court concluded that the subcontract was indeed a fixed sum contract, not a rates contract, based on the explicit terms of the agreement. The court found that Rostruct had not repudiated its obligations under the contract. However, it was determined that Rostruct was entitled to a set-off for overpayments made to Italsteel. As a result, the court allowed the plaintiff's claims in part, affirming the fixed sum nature of the contract but reducing the damages payable to the plaintiff due to the overpayment set-off.

Orders

Orders of the court

Subcontract is a fixed sum contract, not a rates contract

No repudiation of outstanding works by Rostruct

Other claims allowed in part

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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