Shearman v Classic Constructions (Aust) Pty Ltd
[2022] ACTSC 368
•22 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Shearman v Classic Constructions (Aust) Pty Ltd |
Citation: | [2022] ACTSC 368 |
Hearing Date: | 22 December 2022 |
DecisionDate: | 22 December 2022 |
Before: | McCallum CJ |
Decision: | (1) Upon the owners giving 48 hours advanced written notice of an appointment with the contractor who is to undertake the installation, I direct the defendant to provide access to the property at [REDACTED] for the sole purpose of installing security cameras. (2) Vacate the listing at 2pm on 23 December 2022. |
Catchwords: | CONTRACTS — IMPLIED TERMS — Good faith — urgent application to resolve dispute arising under construction contract – request by owners of property for access to property for the purpose of installing security cameras – where builder gives no reasonable explanation for refusing the request |
Cases Cited: | Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 |
Parties: | Debra Shearman (First Plaintiff) Leigh Richard Shearman (Second Plaintiff) Classic Constructions (Aust) Pty Ltd (ABN: 35 143 150 396) ( Defendants) |
Representation: | Counsel Self-represented ( First Plaintiff) No appearance (Second Plaintiff) B Buckland ( Defendant) |
| Solicitors Self-represented ( First Plaintiff) No appearance (Second Plaintiff) MV Law ( Defendant) | |
File Number: | SC 505 of 2022 |
McCALLUM CJ:
Debra and Leigh Shearman retained Classic Constructions (Aust) Pty Ltd to complete the construction of a home in accordance with the terms of a standard form ACT residential building contract for new homes. The construction has given rise to disputes between the parties which are currently the subject of separate proceedings before the Court in SC 416 and 417 of 2022. Those proceedings have come before McWilliam AsJ.
In the meantime, the Shearmans have yesterday filed an originating application against Classic Constructions seeking urgent relief to enable them to install security cameras and floodlights at the property. That application has been listed before me on an urgent basis today and I have heard the parties.
The relief sought in the application is problematic in form, but the substance of the application is that the Shearmans be granted access to their own property for the purpose of installing security cameras and floodlights so as to enable them to maintain 24-hour surveillance of the property.
The Shearmans first requested access to the property for that purpose by email dated 10 November 2022. A number of attempts were made to contact different persons at the law firm acting for Classic Constructions. Ultimately, the request appears to have been passed on to Mr Jason Tanchevski by at least 13 November 2022. On 15 November 2022, Mr Tanchevski wrote to the first plaintiff, Ms Debra Shearman, in the following terms: “Deb – we will leave the existing camera arrangement in place as they are. We decline the request of below.”
The reference to an existing camera is explained in a photograph tendered by Classic Constructions which shows that there is currently in place a security camera directed down the side access to the construction works. Given the existence of that camera and in the absence of any dispute as to its capacity to film, it is clear enough that the defendant, Classic Constructions, has no objection in principle to there being a surveillance camera on the premises. Indeed, that appears to be in the interests of both parties, both generally in terms of security of the site and currently in the context of the dispute between the parties.
Mr Tanchevski offered no explanation in his curt email of 13 November 2022 for declining a request by the Shearmans to install additional cameras, at their own expense, to provide enhanced security at their own premises. Further correspondence followed, ultimately culminating in Mr Tanchevski writing to Ms Shearman on 19 December 2022, after the conclusion of the law term, indicating that, whilst he did not consider there was a need for any additional camera onsite when a security camera was already there, Classic Constructions was prepared to consent to the request on terms. The terms were that there be one security camera only and that it remain onsite only until 2 February 2023, after which it would be removed. Ms Shearman did not consent to those terms and, as I have recorded, two days later filed the present application.
Classic Constructions tendered a copy of the residential building contract. Clause 14 of the contract provides:
Access to site
1.The owner gives the builder exclusive access to and possession of the site to carry out the building works.
2.The builder has the owner’s authority to allow or refuse anyone access, and may order unauthorised people from the site.
3.The owner and any authorised officer of the lending authority, may go on to the site to inspect the work at a reasonable time during normal working hours, as long as it does not delay the progress of the building works.
(Emphasis in the original.)
There is included in the material attached to the contract a letter dated 24 July 2020 from Classic Constructions which appears to qualify the terms of that clause, at least in that it imposes an obligation on the Shearmans, if access is sought to the site, to give notice to Classic Constructions. The letter further states:
If site access occurs without our agreement and our supervision, you will be in breach of our contract and you also do so at your own risk. We will not be responsible for any personal injury or death or damage or loss to property that occurs. We require you to wear safe appropriate clothing and footwear while on the Building Site and follow other safety directions. Under no circumstances will children or pets be permitted onsite.
Whether or not that clause derogates from the clarity of clause 14, it appears to form part of the contract between the parties, having been signed by both the “owner” and Classic Constructions. It is accordingly clear, or at least clear enough for today's purposes, that the agreement between the parties requires the owners to seek access to their own property and confers on the builder a discretion to determine whether that should occur.
Those contractual terms enliven principles which are well established, particularly in the context of construction contracts, namely that where the effect of a contract depends on the exercise of a discretion given to one of the parties or the formation of an opinion of one of the parties, the courts will often take the view that the contract requires that discretion to be exercised or the opinion to be formed reasonably or in good faith.
So far as my awareness of the jurisprudence is concerned, that principle was first articulated in the decision of the New South Wales Supreme Court in Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 268. It is a decision which has been applied in numerous contract cases since.
In my assessment, the builder’s flat refusal to permit additional cameras to be installed where cameras already exist and where the owners have undertaken to bear the entire cost of the cameras, and where on no conceivable view could the mere existence or presence of cameras interfere with the building works, without giving any explanation or reason, would appear to constitute a breach of such an implied term.
It is not possible in an application such as the present to form definitive views about those kinds of matters. The Court is left to do the best it can in an application brought urgently. Here, the owners’ concern is to have adequate surveillance of the property during a period when the site will be vacant or not occupied by the builder and during the holiday season. It is enough to say that this appears, from the outside, to be a relatively minor dispute, the acrimony attending which cannot be explained by the content of the dispute on its own. The builder’s intransigence appears to reflect a greater level of conflict between the parties than can be explained by the present dispute alone. The present application raises a minor matter which I think the Court can assist the owners to resolve.
Leaving aside the principles concerning implied terms of good faith, a term might be implied on the conventional basis stated by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 347. The circumstances in which the Court will imply such a term are well known. In the present case, it is not difficult to conclude that the builder’s exclusive access to and possession of the site to carry out the building works is qualified by an obligation to permit access reasonably sought for a purpose connected with the protection of the property.
Whether or not a term can be implied in accordance with those principles or implied by law in accordance with the principles beginning with Renard Constructions does not matter. Either way, in my assessment, the builder has not acted in accordance with such a term in responding to the relatively small request by the owners in respect of their own property.
Upon my indicating to the parties my view that the owners should be permitted to take the course they seek, the parties engaged in discussions during a short adjournment and have ultimately agreed on a form of orders to give effect to my conclusion. I am mindful in adopting that form of order that the builder does not consent to the relief sought but has taken a pragmatic approach in consenting to a form of order to give effect to the Court's view.
The order agreed upon is that:
(1)Upon the owners giving 48 hours advanced written notice of an appointment with a contractor who is to install the cameras, I direct the defendant to provide access to the property at [REDACTED] for the sole purpose of installing security cameras.
(2)Vacate the listing at 2:00pm on 23 December 2022.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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