Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd - [2008] QDC 301

DISTRICT COURT OF QUEENSLAND

CITATION:

Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd [2008] QDC 301

PARTIES:

SEQUEL DRILL & BLAST PTY LTD

Plaintiff

V

WHITSUNDAY CRUSHERS PTY LTD

Defendant

FILE NO/S:

BD2223/2004

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

12 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

22, 23 November and 12 December 2007

JUDGE:

Tutt DCJ

ORDER:

1. Judgment for the plaintiff against the defendant in the sum of $2,747.74 inclusive of interest of $852.75.

2. I shall hear the parties further on the question of costs.

CATCHWORDS:

CONTRACT LAW – contractual arrangements between parties both orally and in writing – plaintiff’s business drilling and rock blasting – defendant’s business rock crushing – contract provided for services to be performed by plaintiff – no express time-frame stipulated – implied term to complete in a “timely manner” – contract not completed – set-off and counter-claim by defendant for damages suffered for non-completion – breach of implied term.

BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266

Canning v Temby (1905) 3 CLR 419

Hick v Raymond & Reid[1893] AC 22

Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537

COUNSEL:

I A Erskine for the plaintiff

M J Steele for the defendant

SOLICITORS:

Tucker and Cowan Solicitors for the plaintiff

ClarkeKann Lawyers for the defendant

Introduction:

Sequel Drill and Blast Pty Ltd (“the plaintiff”) claims the sum of $57,938.99 plus interest and costs from Whitsunday Crushers Pty Ltd (“the defendant”) arising out of a contract between the parties for the drilling and blasting of rock at the German Creek Coal Mine (“the site”) near Middlemount, Queensland, whereby in or about November 2003 the defendant engaged the plaintiff to perform drilling and blasting at a quarry operated by the defendant near the site.

The plaintiff is a company engaged in the business of drilling and blasting rock and the defendant is a company engaged in the business of crushing rock for a variety of purposes, including road construction.

Background and facts:

It is not in dispute that the plaintiff carried out work for the defendant and issued invoices to the defendant for the total amount of $179,552.84, of which the defendant has paid a sum of $121,613.85, leaving a balance owing of $57,938.99 as claimed.

While the defendant admits that the plaintiff performed work for it at the site, it alleges that in relation to one of the “shots”,[1] namely shot 3, the depth of rock blasted was only 12 metres not 15 metres as invoiced and as a consequence the plaintiff has overcharged the defendant in respect of this “shot” in the amount of $7,348.00.[2]
[1]The term “shot” refers to a single blast or explosion when the explosive material within the drill-hole is detonated to break the rock.
[2]See Exhibit 1 at pages 21 & 22, together with Exhibit 2; the quantum of this figure was not challenged by the plaintiff.

The defendant also…

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: [2008] QDC 301
Decision Date: 12 December 2008

CaseChat Overview and Summary

Sequel Drill & Blast Pty Ltd commenced proceedings against Whitsunday Crushers Pty Ltd, seeking payment for services rendered under a contractual arrangement. The dispute arose from an agreement where Sequel Drill & Blast Pty Ltd was to provide drilling and rock blasting services to Whitsunday Crushers Pty Ltd, with the services to be performed without an explicit time frame being stipulated in the written contract. However, the contract did imply a requirement for the services to be completed in a timely manner. Despite the completion of some work, the contract was not fulfilled, leading to Whitsunday Crushers Pty Ltd initiating a set-off and counterclaim for damages resulting from the non-completion. The court was tasked with determining whether Sequel Drill & Blast Pty Ltd breached the implied term of completing the services within a reasonable time.

The court examined whether the implied term for timely completion was a necessary condition of the contract, considering the nature of the services and the reasonable expectations of the parties involved. Additionally, the court needed to assess if the failure to complete the services constituted a breach of contract and whether the defendant's counterclaim for damages was justified. The analysis involved interpreting the contractual terms and the surrounding circumstances, including the reasonableness of the time frame for completion and the extent of damages suffered by the defendant due to the non-completion.

In delivering judgment, the court found that an implied term to complete the services in a timely manner was indeed part of the contract. Sequel Drill & Blast Pty Ltd's failure to complete the services on time constituted a breach of this term. However, the court determined that the damages claimed by Whitsunday Crushers Pty Ltd were excessive and not directly attributable to the breach. Consequently, the court awarded judgment in favour of Sequel Drill & Blast Pty Ltd for the amount of $2,747.74, inclusive of interest of $852.75. The court reserved the question of costs for a later hearing to allow the parties to present further evidence and arguments.

The court's final orders included a judgment in favour of Sequel Drill & Blast Pty Ltd, mandating Whitsunday Crushers Pty Ltd to pay the sum of $2,747.74, inclusive of interest. The court also scheduled a future hearing to address the issue of costs, enabling the parties to provide additional information and arguments regarding the allocation of legal expenses. This decision underscored the importance of implied terms in contractual agreements and the necessity for parties to adhere to reasonable expectations regarding the timely completion of services.

Orders

Orders of the court

1. Judgment for the plaintiff against the defendant in the sum of $2,747.74 inclusive of interest of $852.75.

2. I shall hear the parties further on the question of 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:	Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd [2008] QDC 301
PARTIES:	SEQUEL DRILL & BLAST PTY LTD Plaintiff V WHITSUNDAY CRUSHERS PTY LTD Defendant
FILE NO/S:	BD2223/2004
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	12 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	22, 23 November and 12 December 2007
JUDGE:	Tutt DCJ
ORDER:	1. Judgment for the plaintiff against the defendant in the sum of $2,747.74 inclusive of interest of $852.75. 2. I shall hear the parties further on the question of costs.
CATCHWORDS:	CONTRACT LAW – contractual arrangements between parties both orally and in writing – plaintiff’s business drilling and rock blasting – defendant’s business rock crushing – contract provided for services to be performed by plaintiff – no express time-frame stipulated – implied term to complete in a “timely manner” – contract not completed – set-off and counter-claim by defendant for damages suffered for non-completion – breach of implied term. BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Canning v Temby (1905) 3 CLR 419 Hick v Raymond & Reid[1893] AC 22 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
COUNSEL:	I A Erskine for the plaintiff M J Steele for the defendant
SOLICITORS:	Tucker and Cowan Solicitors for the plaintiff ClarkeKann Lawyers for the defendant