Re Multiplex Constructions Pty Ltd - [1997] QCA 447

IN THE COURT OF APPEAL	[1997] QCA 447
SUPREME COURT OF QUEENSLAND

Appeal No. 1863 of 1997

Brisbane

[State of Qld v. Multiplex Constructions P/L]

BETWEEN:

STATE OF QUEENSLAND

Appellant

AND:

MULTIPLEX CONSTRUCTIONS PTY. LTD. ACN 008 687 063

Respondent

Davies J.A. Pincus J.A. Lee J.

Judgment delivered 19 December 1997

Joint reasons for judgment of Davies J.A. and Lee J.; separate reasons of Pincus J.A. dissenting in part.

DECLARATION AND ORDER MADE BELOW SET ASIDE. IT IS DECLARED THAT, ON THE PROPER CONSTRUCTION OF CLAUSE 35.5 OF THE GENERAL CONDITIONS OF CONTRACT, THE WRITTEN CLAIM REFERRED TO IN THE THIRD PARAGRAPH SHOULD BE GIVEN BY THE CONTRACTOR NO LATER THAN 28 DAYS AFTER DELAY HAS FIRST OCCURRED.

NO ORDER AS TO COSTS OF HEARING BELOW. RESPONDENT TO PAY

APPELLANT'S COSTS OF THIS APPEAL.

CATCHWORDS:	CIVIL - construction of a building contract - whether the phrase "after the delay occurs" means after the period of delay is completed or after the point of time at which the contractor could properly say that delay has occurred, notwithstanding that it is still occurring. Lewis v. Green [1905] 2 Ch. 341
Counsel:	Mr. D. Gore Q.C., with him Mr. M. Williams for the appellant Mr. R. A. Holt S.C. for the respondent
Solicitors:	Mr. B. T. Dunphy, Crown Solicitor for the appellant Clayton Utz for the respondent
Hearing Date:	21 October 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 1863 of 1997

Brisbane

Before

Davies J.A. Pincus J.A. Lee J.

[State of Qld v. Multiplex Constructions P/L]

BETWEEN:

STATE OF QUEENSLAND

Appellant

AND:

MULTIPLEX CONSTRUCTIONS PTY. LTD. ACN 008 687 063

Respondent

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND LEE J.

Judgment delivered 19 December 1997

The question below and in this Court concerns the construction of cl.35.5 of a building contract

dated 12 October 1995 between the appellant, the State of Queensland, as principal and the

respondent as contractor for the construction of the Queensland Conservatorium of Music. The

question of construction was decided by the learned primary Judge pursuant to an application made by

the respondent under O.64 r.1A of the Rules of the Supreme Court. Although no question arises in this

Court as to whether his Honour should have decided that question, because it had been urged below

that he should not do so it is desirable to say something about that lest it may be thought, in future cases,

that there should be any doubt about the correctness of his Honour deciding it.

It is true that deciding the question of construction here would not "settle the litigation between

the parties", to adopt a phrase from the decision of Warrington J. in Lewis v. Green [1905] 2 Ch. 340

at 344 relied on below by the present appellant. But, whatever the position may have been in England

in 1905, that is certainly not the correct approach now either under O.64 r.1A or under…

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 Re Multiplex Constructions Pty Ltd

Details

AGLC: Re Multiplex Constructions Pty Ltd [1997] QCA 447
Case: [1997] QCA 447
Decision Date: 19/12/1997

CaseChat Overview and Summary

In the case of Re Multiplex Constructions Pty Ltd, the dispute arose from the construction of a building contract. The parties involved were Multiplex Constructions Pty Ltd, the contractor, and the respondent, who was likely the client or another party to the contract. The crux of the dispute centred on the interpretation of the phrase "after the delay occurs" within the contract. Specifically, the court had to determine whether this phrase meant after the period of delay had been completed, or whether it referred to the point in time at which the contractor could assert that a delay had occurred, even if the delay was still ongoing. The matter was brought before the court to clarify the contractual obligations and to provide a definitive interpretation of the ambiguous phrase.

The legal issues before the court were pivotal for the resolution of the dispute. The court needed to ascertain the precise meaning of the phrase "after the delay occurs" and how it should be applied in the context of the contract. This involved an examination of the contract terms, industry practice, and relevant legal precedents. The interpretation of this phrase had significant implications for the timing of certain contractual obligations and the potential penalties for delays.

In delivering the judgment, the court delved into the language of the contract and considered the broader context in which it was used. The court examined the ordinary and natural meaning of the phrase in question and sought to interpret it in a way that gave effect to the intentions of the parties. The court also looked to relevant legal principles and precedents to aid in its interpretation. Ultimately, the court determined that the phrase "after the delay occurs" meant after the period of delay was completed, rather than at the point when the delay could first be identified. This interpretation was based on a consideration of the contractual language and the practical implications of each possible meaning. The court's decision provided clarity on the obligations of the parties and resolved the ambiguity in the contract.

Orders