Tomkins Commercial and Industrial Builders Pty Ltd v Majella Towers One Pty Ltd

Tomkins Commercial and Industrial Builders Pty Ltd filed a claim against Majella Towers One Pty Ltd seeking an order that Majella was obliged to provide a bank guarantee to Tomkins under clause 5.4 of the contract on a specific date. Additionally, Tomkins sought an order for payment of the sum of $607,647.50 plus interest, and for the respondents to pay Tomkins' costs of the proceedings. The dispute arose out of a contract for the construction of a building. The primary issue was whether Tomkins was entitled to payment of the sum claimed and whether recourse could be had to a bank guarantee. The court was also required to consider whether the notice of dispute issued by Majella precluded Tomkins from relying on the final certificate and whether the risk of non-payment was allocated to Majella.

The court held that Tomkins was entitled to the sum claimed and that Majella was obliged to deliver the bank guarantee to Tomkins pursuant to clause 5.4 on the specified date. The court found that Majella's notice of dispute did not preclude Tomkins from relying on the final certificate, as the notice of dispute related to the entirety of the subject of the final certificate. The court also held that the risk of non-payment was allocated to Majella. The court cited Martinek Holdings Pty Ltd v Reed Construction (Qld) Pty Ltd in support of its reasoning. The court found that Tomkins was entitled to be paid the sum of $607,647.50 together with any interest to which it may be properly entitled.

The court further held that Majella was to pay Tomkins' costs of the proceedings on a standard basis. The court ordered that Majella deliver the bank guarantee to Tomkins on the specified date, and that after 5pm on Tuesday 19 September 2017, Majella be paid the sum of $607,647.50 together with any interest to which Tomkins may be properly entitled. The sum of $607,647.50 had already been paid into the Supreme Court on 14 June 2017 pursuant to an order of that date.