Kyren Pty Ltd v Wunda Projects Australia Pty Ltd

Kyren Pty Ltd (the appellant) and Wunda Projects Australia Pty Ltd (the respondent) entered into a contract for the construction of an apartment building. Disputes arose when the appellant removed certain works from the respondent's scope. The respondent subsequently claimed payment for unpaid works, variations, and loss of profits, while the appellant cross-claimed. The trial judge found in favour of the respondent.

The appeal concerned several legal issues, including whether contractual variations meant that tax invoices were conclusive, whether the appellant had repudiated the contract, the effectiveness of the respondent's compliance with notice provisions, the validity of directions to withdraw work before repudiation was accepted, the appellant's entitlement to liquidated damages, and whether the trial judge erred in refusing to allow the appellant to reopen its case to plead additional matters.

The Full Court of the Supreme Court of South Australia allowed the appeal on two key issues. It held that the trial judge erred in concluding that the tax invoices were conclusive, finding instead that there was an express agreement that tax invoices would only be issued after inspection and agreement on the percentage of work completed. The Court also found that the appellant was entitled to remove work from the respondent following the respondent's repudiation and breach of contract, and that the contract remained on foot until the repudiation was accepted. The Court dismissed the appeal on all other grounds and allowed the notice of alternative contention, confirming the respondent's right to elect for payment on a quantum meruit basis for work completed. The parties were directed to meet and attempt to agree on a final judgment figure within 21 days, based on detailed schedules prepared by the appellant's solicitors.