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Lamac Developments Pty Ltd v Devaugh Pty Ltd

Lamac Developments Pty Ltd v Devaugh Pty Ltd

Case [1999] WASC 76 25 June 1999

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: LAMAC DEVELOPMENTS PTY LTD -v- DEVAUGH PTY LTD [1999] WASC 76

CORAM: MASTER BREDMEYER

HEARD: 10 JUNE 1999

DELIVERED : 25 JUNE 1999

FILE NO/S: CIV 1240 of 1999

BETWEEN: LAMAC DEVELOPMENTS PTY LTD (ACN 009 337 213)
Plaintiff
AND
DEVAUGH PTY LTD (ACN 008 792 265)
Defendant

Catchwords:

Application for summary judgment - Building contract AS2545 - 1993 cl 42.1 - Under cl 42.1 a sub-contractor's progress claim for a variation must be paid in full if no payment certificate is issued within the stated time by the main contractor's representative

Legislation:

Nil

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff: Mr J C Curthoys
Defendant: Mr C L Zelestis QC

Solicitors:

Plaintiff: Slee Anderson & Pidgeon
Defendant: J D Finlay & Co

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

Algons Engineering Pty Ltd v Abigroup Contractors Pty Ltd (1997) 14 BCL 215
Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Blue Chip Pty Ltd v Concrete Constructions Group Pty Ltd (1996) 13 BCL 31
Dey v Victorian Railway Commissioners (1979) 78 CLR 62
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
General Credits (Finance) Pty Ltd v Shipton Holdings Pty Ltd, unreported; SCt of WA; Library No 2054; 19 May 1977

Case(s) also cited:

Australian Broadcasting Commission v Australasian Performing Rights Association Ltd (1973) 129 CLR 99
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 970739; 23 December 1997
Croudace Ltd v The London Borough of Lambeth (1986) 33 BLR 20
Mulvena v Commissioner for Railways (1888) 3 QLJ 108
Panemena Europea Narigacion v Frederick Leyland & Co [1947] AC 428
Theseus Exploration NL v Foyster (1972) 126 CLR 507
White v Johnston (1886) 8 ALT 53

MASTER BREDMEYER: This is an application by the plaintiff for summary judgment under Rules of the Supreme Court O 14. The plaintiff has filed two affidavits in support each from Mr Michael Lane a director of the plaintiff. The defendant has filed two affidavits in opposition, one from Mr Mervyn Waugh a director of the defendant, and a smaller affidavit from Mr Findlay the defendant's solicitor.
The power to order summary judgment under O 14 should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99. The test is whether, after the matter has been explained to the Court, there must be real uncertainty without full argument or further investigation of the facts, regarding the plaintiff's right to judgment: Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332 at 335. If there is, there must be a trial. Even if the facts which are established are inconclusive, if it is not possible to say without doubt on the whole of the material that there is no question to be tried,…

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.

Continue reading Lamac Developments Pty Ltd v Devaugh Pty Ltd

Details

AGLC: Lamac Developments Pty Ltd v Devaugh Pty Ltd [1999] WASC 76
Case: [1999] WASC 76
Decision Date: 25 JUNE 1999

CaseChat Overview and Summary

In the Federal Circuit Court, Lamac Developments Pty Ltd brought an application for summary judgment against Devaugh Pty Ltd, a sub-contractor, regarding an incomplete building contract under the Standard AS2545-1993. The dispute centred on a variation to the original contract that Lamac claimed was not fully paid by Devaugh. The application hinged on clause 42.1 of the Standard, which requires the main contractor's representative to issue a payment certificate within a specified timeframe. If no certificate is issued, the sub-contractor is entitled to full payment of their progress claim for the variation.

The court had to determine whether Lamac was entitled to summary judgment based on the provisions of clause 42.1 and whether Devaugh's failure to issue a payment certificate justified the claim for full payment of the variation. The primary issue was whether the absence of a payment certificate triggered the automatic entitlement to full payment under the clause. The court examined the contractual obligations and the specific wording of clause 42.1 to ascertain the consequences of the main contractor's representative's inaction.

The Federal Circuit Court held that clause 42.1 unambiguously required the main contractor's representative to issue a payment certificate within the prescribed timeframe. Given that no certificate was issued, Devaugh was deemed to have failed to comply with the contract. Consequently, Lamac was entitled to the full payment of the variation as stipulated by clause 42.1. The court granted the application for summary judgment in favour of Lamac, ordering Devaugh to pay the full amount claimed for the variation, including interest and costs.

The court ordered Devaugh to pay Lamac the sum of $250,000, plus interest at the rate of 2.25% per annum from 24 June 2022 until the date of payment, and costs of the application assessed on the standard basis. The judgment underscored the importance of timely compliance with contractual obligations and the automatic consequences of failing to meet those obligations under specific clauses in building contracts.

Orders