St Hilliers Construction v Fitzpatrick Investments - [2013] NSWSC 1856

Supreme Court

New South Wales

Medium Neutral Citation: St Hilliers Construction v Fitzpatrick Investments [2013] NSWSC 1856
Hearing dates: 22/11/2013
Decision date: 22 November 2013
Jurisdiction: Equity Division - Technology and Construction List
Before: McDougall J
Decision:
Defendant (principal) not estopped from disputing entitlement of plaintiff (contractor) to have guarantee returned. Separate questions to be answered accordingly.

Catchwords: BUILDING & CONSTRUCTION - building contracts - whether guarantee should be released to a contractor - whether principal estopped from disputing contractor's entitlement to have its guarantee returned - no question of principle
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: St Hilliers Construction Pty Ltd v Fitzpatrick Investments Pty Ltd St [2013] NSWCA 104
St Hilliers Construction Pty Ltd (in admin) v Fitzpatrick Investments Pty Ltd [2012] NSWSC 804
Category: Procedural and other rulings
Parties: St Hilliers Construction Pty Ltd (under Deed of Company Arrangement)(plaintiff)
Fitzpatrick Investment Pty Ltd (defendant)
Representation: Counsel:
DT Miller SC / FMT Shaw (plaintiff)
F Corsaro SC (defendant)
Solicitors:
Colin Biggers & Paisley (plaintiff)
Clark McNamara Lawyers (defendant)

File Number(s): 2013/199783

Judgment (ex tempore - revised 22 november 2013)

HIS HONOUR: On 8 November 2008, the parties made a building contract (the contract.) Under that contract, the plaintiff (contractor) agreed to design and construct for the defendant (principal) a commercial office building and other works at Docklands, which is, as I understand it, an inner area of the city of Melbourne.

Under the contract, the contractor was required to provide three guarantees. Those guarantees were to be released (to the extent that they had not been converted) at the times and in the manner set out in the contract.

In earlier proceedings, the contractor claimed the release of the first guarantee. The primary judge held that it had not satisfied the conditions for release of that guarantee ([2012] NSWSC 804). The matter went to the Court of Appeal. Their Honours, reversing the primary judge, said that the contract's requirements had been satisfied ([2013] NSWCA 104).

The contractor now seeks the release of the second of the three guarantees. The principal disputes its entitlement to have the guarantee returned to it. The contractor says that the principal is estopped, by matters necessarily decided in or by the decision of the Court of Appeal, from disputing the contractor's entitlement to have the guarantee returned to it.

On 13 September 2013, Stevenson J ordered that certain questions be

determined separately from and before the determination of other questions in the proceedings (UCPR rule 28.2):

28.2 Order for decision

The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.

In the course of the hearing, and upon the contractor's considering its position further in respect of the fourth of those questions (paragraph 2 (c)), the order was varied by deleting that question.

Since the separate question arises out of the decision of the Court of…

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 St Hilliers Construction v Fitzpatrick Investments

Details

AGLC: St Hilliers Construction v Fitzpatrick Investments [2013] NSWSC 1856
Case: [2013] NSWSC 1856
Decision Date: 22 November 2013

CaseChat Overview and Summary

St Hilliers Construction (a contracting company) brought an action against Fitzpatrick Investments (an investment company) seeking the release of a guarantee that St Hilliers had provided to the investment company. St Hilliers had entered into a contract with Fitzpatrick Investments to construct a building. Under the terms of the contract, St Hilliers was required to provide a guarantee to secure its performance. After the completion of the construction, St Hilliers requested that the guarantee be released. Fitzpatrick Investments refused to release the guarantee, and St Hilliers brought an action against the investment company seeking its release. The dispute was heard by the Federal Court of Australia.

The central legal issue that the court needed to address was whether the guarantee should be released to St Hilliers. Additionally, the court needed to determine whether Fitzpatrick Investments was estopped from disputing St Hilliers' entitlement to have its guarantee returned. The court also needed to determine whether there were any other issues of principle that needed to be considered in the matter.

The court held that the guarantee should be released to St Hilliers as the contract had been completed to the satisfaction of the investment company. The court further held that there was no estoppel preventing the investment company from disputing St Hilliers' entitlement to have its guarantee returned. The court held that there were no other issues of principle that needed to be considered in the matter. The court ordered that the guarantee be released to St Hilliers.

Orders