Main Roads Construction Pty Ltd v Samary Enterprises Pty Ltd - [2005] VSC 388

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

BUILDING CASES LIST

No. 5935 of 2005

MAIN ROADS CONSTRUCTION PTY LTD	Plaintiff
v
SAMARY ENTERPRISES PTY LTD	Defendant

---

JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 SEPTEMBER2005
DATE OF JUDGMENT:	28 SEPTEMBER 2005
CASE MAY BE CITED AS:	MAIN ROADS CONSTRUCTION PTY LTD v SAMARY ENTERPRISES PTY LTD
MEDIUM NEUTRAL CITATION:	[2005] VSC 388

---

Building Contract – Standards Australia General Conditions of Contract AS 4000-1997 – Claim by builder for payment on progress certificates – Whether proprietor can raise cross-claim in answer – Construction

Procedure – Summary judgment application – Whether question whether proprietor can raise cross-claim in answer to claim by builder for payment on progress certificates raises triable issue – Supreme Court Rules, r.13.14.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.R. Dixon	Harwood Andrews Lawyers
For the Defendant	Mr I.W. Upjohn	John Matthies & Co

HIS HONOUR:

This is an application by the plaintiff, Main Roads Construction Pty Ltd, for summary judgment against the defendant, Samary Enterprises Pty Ltd, in the sum of $456,978.98 said to be owing pursuant to six progress certificates issued by the superintendent under a building contract, plus interest under the contract on each of the overdue amounts from the date payment was due.

The proceeding was commenced by writ on 6 May 2005 and entered into the Building Cases List. The application for summary judgment was made by summons filed 17 June 2005. It was supported by an affidavit of the managing director of the plaintiff, Richard Frank Furnari, sworn on 2 September 2005. The name of the plaintiff in the heading to the affidavit was said to be "Main Roads Corporation Pty Ltd", and this is the name of the plaintiff given in some of the court documents filed by the defendant. An exhibited company search confirmed that this is indeed the correct name of the plaintiff, however, no order has yet been made permitting the name of the plaintiff to be amended in this way. Although nothing turns on this point, because the incorporation of the plaintiff is admitted, there will need to be an amendment made to state the correct name of the plaintiff in the title of the proceeding.

Contrary to the order made by me on 19 August 2005 that any affidavits from the defendant in opposition to the application for summary judgment be filed and served by 12 September 2005, the defendant did not serve any such affidavit until about 5.15 p.m. on 15 September 2005, which was the day before the adjourned date for the hearing of this application. This was an affidavit of one James Lytifi Sabri, the principal of a firm of chartered accountants, which acted as accountants for the defendant. Mr Sabri said that he had been actively involved in all aspects of the project and thus had personal knowledge of the relevant matters. Despite the late service of Mr Sabri's affidavit,…

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.

Keep reading for free

Create a free CaseChat account to read Main Roads Construction Pty Ltd v Samary Enterprises Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] VSC 388
Decision Date: 28 September 2005

CaseChat Overview and Summary

Main Roads Construction Pty Ltd sought payment from Samary Enterprises Pty Ltd under a building contract governed by Standards Australia General Conditions of Contract AS 4000-1997. The dispute arose over progress certificates issued by the builder, Main Roads, and the subsequent claims for payment. Samary, the proprietor, filed an answer to the builder’s claim, asserting a cross-claim for damages due to alleged defects in the work. Main Roads subsequently applied for summary judgment, arguing that Samary's cross-claim raised no triable issue and should be dismissed. The court had to determine whether the proprietor could indeed raise a cross-claim in response to the builder's claim for payment under the contract, and if this raised a question fit for summary judgment consideration.

The legal issues the court addressed involved the interpretation of the contract, the procedural rules concerning cross-claims, and the application of summary judgment. Specifically, the court needed to assess whether Samary's cross-claim was permissible under the contract and procedural rules, and if the existence of such a cross-claim constituted a triable issue that precluded summary judgment. The primary focus was on the interplay between the contract terms, the statutory provisions, and the rules of court that govern the procedure for summary judgment.

The court found that Samary’s cross-claim was indeed permissible under the contract and procedural rules. The court held that the existence of the cross-claim did not automatically render the builder’s claim for summary judgment inappropriate. The cross-claim related to separate issues of defects and damages, which were distinct from the payment claims under the progress certificates. Consequently, the court determined that the cross-claim raised a triable issue, and thus, the application for summary judgment was not suitable. This decision highlighted the importance of distinguishing between separate claims and cross-claims in construction disputes and their respective impacts on procedural applications.

The court dismissed Main Roads' summary judgment application, allowing Samary's cross-claim to proceed. The ruling emphasised that the existence of a cross-claim does not necessarily preclude a summary judgment application, but it does require careful consideration of the issues at hand. The case underscored the need for parties in construction disputes to clearly delineate their claims and responses to avoid procedural pitfalls.

Orders