Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd - [2010] QSC 238

SUPREME COURT OF QUEENSLAND

CITATION:

Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2010] QSC 238

PARTIES:

NORTHBUILD CONSTRUCTION PTY LTD ACN 118 332 871
(applicant)
v
DISCOVERY BEACH PROJECT PTY LTD ACN 100 500 981

(respondent)

FILE NO/S:

SC No 3620 of 2009

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 July 2010

DELIVERED AT:

Brisbane

HEARING DATES:

15, 16 February 2010; Further written submissions 19 February, 1, 12 March 2010

JUDGE:

Margaret Wilson J

ORDER:

Application dismissed with costs

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – TIME – where applicant and respondent entered into a building contract in relation to a redevelopment – where numerous disputes arose in the course of the project – where parties' dispute about calculation of certain extensions of the date for practical completion has been determined by a programming expert – where a quantity surveyor is to quantify any claim for delay costs – where parties are in dispute as to whose role it is to determine whether the extensions of time give rise to an entitlement to delay costs – whether it was the programming expert’s role to determine if extensions of time give rise to delay costs – whether programming expert performed such role

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – DETERMINATION OF COST –whether on the proper construction of the agreement by which the entitlement to delay costs claims were referred to the programming expert it was intended by the parties that he determine questions of entitlement to delay costs

PROCEDURE – SUPREME COURT PROCEDURE – PROCEDURE UNDER RULES OF COURT – AMENDMENT – where applicant given leave to amend its originating application to seek declarations – whether applicant should have leave to further amend originating application to seek a further declaration

Antaios Compania Naviera SA v Salen Rederierna AB8 [1985] AC 191, cited
Discovery Beach Project Pty Ltdv Northbuild Construction Pty Ltd [2005] QSC 322, cited
Elderslie Property Investments No 2 Pty Ltd v Dunn [2008] QCA 158, cited
Homburg Houtimport BV v Agrosin Private Ltd(The Starsin) [2004] 1 AC 715, cited
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, cited
McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579, cited
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451, cited
Thiess Services Pty Ltd v Mirvac Queensland Pty Ltd [2005] QSC 364, cited
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, cited
Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235, cited

Zeke Services Pty Ltd v Traffic Technologies Ltd [2005] 2 Qd R 563, cited

COUNSEL:

D A Savage SC and CA Wilkins for the applicant.
B T Porter for the respondent.

SOLICITORS:

Crouch & Lyndon for the applicant.
Clayton Utz for the respondent.

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

Case: [2010] QSC 238
Decision Date: 2 July 2010

CaseChat Overview and Summary

In Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd, the dispute arose from a building contract between the applicant and respondent for a redevelopment project. Numerous disputes emerged during the project, including disagreements over the calculation of certain extensions of the date for practical completion. The parties' dispute concerning the calculation of these extensions was determined by a programming expert, and a quantity surveyor was appointed to quantify any claim for delay costs. The primary legal issue before the court was whether it was the programming expert's role to determine if the extensions of time give rise to an entitlement to delay costs, and if so, whether the programming expert had performed such a role.

The court examined the agreement between the parties regarding the entitlement to delay costs claims and whether it was intended that the programming expert determine questions of entitlement to delay costs. The court considered the construction of the agreement and the roles assigned to the programming expert and the quantity surveyor. The court found that the programming expert's role was limited to determining the extensions of time and not to deciding whether these extensions give rise to delay costs. The court also held that the programming expert did not perform the role of determining entitlement to delay costs.

Additionally, the applicant sought leave to further amend its originating application to seek a further declaration. The court considered whether the applicant should be granted leave to amend its application and ultimately dismissed the application with costs. The court found that the applicant should not be granted leave to further amend its originating application to seek a further declaration.

Orders

Orders of the court

Application dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2010] QSC 238
PARTIES:	NORTHBUILD CONSTRUCTION PTY LTD ACN 118 332 871 (applicant) v DISCOVERY BEACH PROJECT PTY LTD ACN 100 500 981 (respondent)
FILE NO/S:	SC No 3620 of 2009
DIVISION:	Trial Division
PROCEEDING:	Originating application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	2 July 2010
DELIVERED AT:	Brisbane
HEARING DATES:	15, 16 February 2010; Further written submissions 19 February, 1, 12 March 2010
JUDGE:	Margaret Wilson J
ORDER:	Application dismissed with costs
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – TIME – where applicant and respondent entered into a building contract in relation to a redevelopment – where numerous disputes arose in the course of the project – where parties' dispute about calculation of certain extensions of the date for practical completion has been determined by a programming expert – where a quantity surveyor is to quantify any claim for delay costs – where parties are in dispute as to whose role it is to determine whether the extensions of time give rise to an entitlement to delay costs – whether it was the programming expert’s role to determine if extensions of time give rise to delay costs – whether programming expert performed such role CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – DETERMINATION OF COST –whether on the proper construction of the agreement by which the entitlement to delay costs claims were referred to the programming expert it was intended by the parties that he determine questions of entitlement to delay costs PROCEDURE – SUPREME COURT PROCEDURE – PROCEDURE UNDER RULES OF COURT – AMENDMENT – where applicant given leave to amend its originating application to seek declarations – whether applicant should have leave to further amend originating application to seek a further declaration Antaios Compania Naviera SA v Salen Rederierna AB8 [1985] AC 191, cited Discovery Beach Project Pty Ltdv Northbuild Construction Pty Ltd [2005] QSC 322, cited Elderslie Property Investments No 2 Pty Ltd v Dunn [2008] QCA 158, cited Homburg Houtimport BV v Agrosin Private Ltd(The Starsin) [2004] 1 AC 715, cited Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, cited McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579, cited Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451, cited Thiess Services Pty Ltd v Mirvac Queensland Pty Ltd [2005] QSC 364, cited Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, cited Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235, cited Zeke Services Pty Ltd v Traffic Technologies Ltd [2005] 2 Qd R 563, cited
COUNSEL:	D A Savage SC and CA Wilkins for the applicant. B T Porter for the respondent.
SOLICITORS:	Crouch & Lyndon for the applicant. Clayton Utz for the respondent.