Sequel Drill & Blast Pty Ltd v Whitsunday Crushers Pty Ltd - [2009] QCA 218

SUPREME COURT OF QUEENSLAND

CITATION:

Sequel Drill & Blast P/L v Whitsunday Crushers P/L [2009] QCA 218

PARTIES:

SEQUEL DRILL & BLAST PTY LTD
(plaintiff/appellant)
v
WHITSUNDAY CRUSHERS PTY LTD
(defendant/respondent)

FILE NO/S:

Appeal No 347 of 2009
DC No 2223 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

31 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2009

JUDGES:

Chief Justice and Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Vary the judgment by increasing the amount of the judgment in favour of the appellant from $1,894.99 to $7,064.99.

2.   Otherwise, the appeal is dismissed.

3.   The parties are given leave to make submissions as to costs within ten days and in accordance with paragraph 37A of Practice Direction No 1 of 2005.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – where the appellant was to provide drilling and blasting services for the respondent – where the contract did not specify the number of blasts or ‘shots’ to be performed by the appellant – where the appellant stopped work and left the site after completing seven shots – where the respondent argued that the appellant had contracted to provide eight shots – whether the appellant was contractually obliged to complete eight shots

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE PERFORMANCE OF WORK – TIME – where the contract did not specify a date for completion of work by the appellant – where the trial judge held that there was an implied term that the appellant would complete the work within a ‘reasonable time’ – where the appellant argued that its delay was not unreasonable due to the fact that its driller had been given a leave of absence from the site by the respondent and had subsequently resigned – whether this argument was supported by the evidence at trial – whether the appellant failed to complete the work within a ‘reasonable time’

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where appellant disputed the evidence relied upon by the respondent to establish the amount of its loss – where appellant argued that the respondent had failed to mitigate its loss and that the trial judge erred in failing to take into account an amount that the respondent obtained from leasing its idle equipment to a third party within the relevant period – whether the appellant was entitled to object to evidence on appeal when no objection was taken at trial – whether the respondent failed to mitigate its loss – whether the amount of damages awarded to the appellant should be increased to take into account the amount the respondent received from leasing its equipment

Business and Professional Leasing P/L & Anor v Akuity P/L & Anor[2008] QCA…

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: [2009] QCA 218
Decision Date: 31 July 2009

CaseChat Overview and Summary

Sequel Drill & Blast Pty Ltd appealed against a judgment in the Queensland District Court, where the trial judge found in favour of Whitsunday Crushers Pty Ltd. The dispute centered around a contract for drilling and blasting services, with the contract not specifying the number of blasts or 'shots' to be performed. The appellant completed seven shots before stopping work, while the respondent claimed that eight shots were required. The appeal raised issues about the contractual obligations regarding the number of shots, the reasonableness of the time taken by the appellant to complete the work, and the calculation of damages.

The court first examined the contractual obligations regarding the number of blasts. It found that the contract did not specify the number of shots, and therefore, the appellant was not contractually obliged to complete eight shots. The court then considered the reasonableness of the time taken by the appellant to complete the work. It held that the trial judge correctly found that there was an implied term that the appellant would complete the work within a reasonable time. The court found that the appellant's delay was not unreasonable due to the respondent's actions in giving the driller a leave of absence and the subsequent resignation of the driller. Finally, the court considered the measure of damages. It found that the appellant was not entitled to object to evidence on appeal when no objection was taken at trial. However, it held that the respondent failed to mitigate its loss and that the amount of damages awarded to the appellant should be increased to take into account the amount the respondent received from leasing its idle equipment.

The court varied the judgment by increasing the amount of the judgment in favour of the appellant from $1,894.99 to $7,064.99. The appeal was otherwise dismissed. The parties were given leave to make submissions as to costs within ten days and in accordance with paragraph 37A of Practice Direction No 1 of 2005.

Orders

Orders of the court

1. Vary the judgment by increasing the amount of the judgment in favour of the appellant from $1,894.99 to $7,064.99.

2. Otherwise, the appeal is dismissed.

3. The parties are given leave to make submissions as to costs within ten days and in accordance with paragraph 37A of Practice Direction No 1 of 2005.

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 P/L v Whitsunday Crushers P/L [2009] QCA 218
PARTIES:	SEQUEL DRILL & BLAST PTY LTD (plaintiff/appellant) v WHITSUNDAY CRUSHERS PTY LTD (defendant/respondent)
FILE NO/S:	Appeal No 347 of 2009 DC No 2223 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	31 July 2009
DELIVERED AT:	Brisbane
HEARING DATE:	22 July 2009
JUDGES:	Chief Justice and Fraser and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Vary the judgment by increasing the amount of the judgment in favour of the appellant from $1,894.99 to $7,064.99. 2. Otherwise, the appeal is dismissed. 3. The parties are given leave to make submissions as to costs within ten days and in accordance with paragraph 37A of Practice Direction No 1 of 2005.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – where the appellant was to provide drilling and blasting services for the respondent – where the contract did not specify the number of blasts or ‘shots’ to be performed by the appellant – where the appellant stopped work and left the site after completing seven shots – where the respondent argued that the appellant had contracted to provide eight shots – whether the appellant was contractually obliged to complete eight shots CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE PERFORMANCE OF WORK – TIME – where the contract did not specify a date for completion of work by the appellant – where the trial judge held that there was an implied term that the appellant would complete the work within a ‘reasonable time’ – where the appellant argued that its delay was not unreasonable due to the fact that its driller had been given a leave of absence from the site by the respondent and had subsequently resigned – whether this argument was supported by the evidence at trial – whether the appellant failed to complete the work within a ‘reasonable time’ CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where appellant disputed the evidence relied upon by the respondent to establish the amount of its loss – where appellant argued that the respondent had failed to mitigate its loss and that the trial judge erred in failing to take into account an amount that the respondent obtained from leasing its idle equipment to a third party within the relevant period – whether the appellant was entitled to object to evidence on appeal when no objection was taken at trial – whether the respondent failed to mitigate its loss – whether the amount of damages awarded to the appellant should be increased to take into account the amount the respondent received from leasing its equipment Business and Professional Leasing P/L & Anor v Akuity P/L & Anor[2008] QCA…