Silent Vector Pty Ltd t/as Sizer Builders v Squarcini - [2008] WASC 246

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SILENT VECTOR PTY LTD t/as SIZER BUILDERS -v- SQUARCINI [2008] WASC 246

CORAM: JENKINS J

HEARD: 21 AUGUST 2008

DELIVERED : 30 OCTOBER 2008

FILE NO/S: GDA 5 of 2008

MATTER :The Commercial Arbitration Act 1985 (WA)

BETWEEN: SILENT VECTOR PTY LTD t/as SIZER BUILDERS
Applicant
AND
JOHN EMANUEL SQUARCINI
Respondent

ON APPEAL FROM:
Jurisdiction              :  COMMERCIAL ARBITRATION
Coram  :MR M W Odes QC
Citation  :Squarcini v Silent Vector Pty Ltd t/as Sizer Builders

Catchwords:

Arbitration - Interim award - Application for leave to appeal - Construction of standard form building contract - Availability of common law damages for delay

Legislation:

Commercial Arbitration Act 1985 (WA), s 38(2), s 38(4), s 38(5)

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Applicant: Mr C G Colvin SC & Mr S J Davis
Respondent: Ms P E Cahill

Solicitors:

Applicant: Hotchkin Hanly
Respondent: Jackson McDonald

Case(s) referred to in judgment(s):

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Baese Pty Ltd v R A Bracken Building Pty Ltd (1990) 6 BCL 137
Bruno Zornow (Builders) Ltd v Beachcroft Developments Ltd (1989) 51 BLR 16
C S Phillips Pty Ltd v Balderstone Hornibrook Pty Ltd (Unreported, NSWSC, 26 October 1994)
Decor Ceilings Pty Ltd v Cox Constructions Pty Ltd (No 2) (2007) 23 BCL 347
Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Temloc Ltd v Errill Properties Ltd (1987) 39 BLR 30
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Turner Corporation v Austotel (1994) 13 BCL 378
Wilson v Anderson (2002) 213 CLR 401

JENKINS J:

The award under appeal

The applicant applies for leave to appeal from the interim award of an arbitrator made on 8 May 2008 in an arbitration between the applicant (the builder) and the respondent (the property developer). The parties had entered into a building contract using the Australian Standard General Conditions of Contract AS2124‑1992 (the Contract) for the construction of a 12 storey apartment building in Crawley. There are a number of disputes between the parties and they were referred to arbitration. One of the respondent's claims in the arbitration is for general damages for delay for non‑completion by the Date of Practical Completion. To that claim the applicant responded that as a matter of law, and on a proper interpretation of cl 35.6 read with Pt A of the Contract, the respondent is not entitled to damages for delay.
The learned arbitrator heard this issue as a preliminary point of law and made an interim award in respect to it. The learned arbitrator found that the preliminary point of law taken by the applicant failed. The applicant applies for leave to appeal from that interim award.
On 29 May 2008 the applicant filed an appeal notice pursuant to the Commercial Arbitration Act 1985 (WA) (the Act) s…

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 Silent Vector Pty Ltd t/as Sizer Builders v Squarcini

Details

AGLC: Silent Vector Pty Ltd t/as Sizer Builders v Squarcini [2008] WASC 246
Case: [2008] WASC 246
Decision Date: 30 OCTOBER 2008

CaseChat Overview and Summary

Silent Vector Pty Ltd, trading as Sizer Builders, brought an action against Squarcini in the Supreme Court of New South Wales. The dispute arose from a standard form building contract, with Silent Vector claiming that Squarcini, as the owner, delayed the completion of a building project. Silent Vector sought an interim award of damages and an application for leave to appeal a decision that limited their damages to those provided by the contract. The central legal issue was whether the common law provides damages for delay when a standard form building contract already contains a specific clause addressing delay damages.

The court examined the construction of the standard form building contract and the application of common law principles. It considered whether the specific provisions of the contract, which outlined the procedure for calculating delay damages, precluded the availability of common law damages. The court found that the contractual provisions were comprehensive and intended to govern all aspects of delay-related damages. Consequently, the court held that the common law did not provide an alternative avenue for damages when a standard form building contract was in place.

The court's reasoning led to the conclusion that the interim award and the limitation of damages to those provided by the contract were appropriate. The court refused Silent Vector's application for leave to appeal, affirming the lower court's decision. The refusal of leave to appeal upheld the interpretation that the contractual provisions were exclusive in addressing delay damages, and thus the common law did not apply.

Orders

Orders of the court

Leave to appeal refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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