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Turner Constructions Pty Ltd v Keen

Turner Constructions Pty Ltd v Keen

Case [2017] WADC 91 10 July 2017

Summary Judgment

Costs

Civil Litigation & Procedure

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TURNER CONSTRUCTIONS PTY LTD -v- KEEN [2017] WADC 91

CORAM: PRINCIPAL REGISTRAR MELVILLE

HEARD: 12 APRIL 2017

DELIVERED : 10 JULY 2017

FILE NO/S: CIV 279 of 2017

BETWEEN: TURNER CONSTRUCTIONS PTY LTD
Plaintiff
AND
DAVID ALBERT KEEN
First defendant
MAY CHING MEEI KONG
Second defendant

Catchwords:

Conferral - Summary judgment - Indemnity costs

Legislation:

Home Building Contracts Act 1991
District Court Rules 2005
Rules of the Supreme Court 1971

Result:

Leave granted and application dismissed

Representation:

Counsel:

Plaintiff:     Mr T G Camp
First defendant             :     Mr M S Macdonald
Second defendant         :     Mr M S Macdonald

Solicitors:

Plaintiff:     Mony De Kerloy
First defendant             :     Macdonald Rudder
Second defendant         :     Macdonald Rudder

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

Alcoa of Australia Ltd v Apache Energy Ltd (No 7) [2016] WASC 370
Argosy Strata Plan SP 21513 v Chu Underwriting Agencies Pty Ltd [No 3] [2015] WADC 37
Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82
Barrick Gold of Australia Ltd v F L Smidth Inc [2007] WASC 186
Flotilla Nominees Pty Ltd v Western Australian Land Authority (2003) 28 WAR 95
Gould v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490
Murchison Zinc Company Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167
Semmens v Ocram Constructions Pty Ltd [2012] WADC 54
SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138
Walter v Buckeridge [No 5] [2012] WASC 495

PRINCIPAL REGISTRAR MELVILLE: By chamber summons dated 13 March 2017 the defendants brought an application for an extension of time to apply for summary judgment against the plaintiff under the Rules of the Supreme Court 1971 (RSC) O 16. The application was limited to the plaintiff's claim insofar as it was based on a claim in debt and damages for breach of contract. As an alternative, the defendants sought that pars 9 – 15 of the statement of claim be struck out pursuant to the RSC, O 20 r 19(1)(a) on the basis that the statement of claim disclosed no reasonable cause of action, or pursuant to O 20 r 19(1)(c) on the basis the paragraphs may prejudice, embarrass or delay the fair trial of the action.
The plaintiff opposed the application on the following grounds:
(a)the application was brought without proper conferral as required by r 22 of the District Court Rules 2005 (DCR);
(b)there is no justification for an extension of time to bring the summary judgment application;
(c)that the defendants have failed to show there is no serious question to be tried;
(d)the pleadings do disclose a reasonable cause of action and are generally unobjectionable.

Absence of conferral

Rule 22 of the DCR requires the parties to attempt to resolve as many of the issues giving rise to a chamber summons before filing it. Upon filing the summons, the person filing it is required to file a certificate that the parties have conferred about the…

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 Turner Constructions Pty Ltd v Keen

Details

AGLC: Turner Constructions Pty Ltd v Keen [2017] WADC 91
Case: [2017] WADC 91
Decision Date: 10 JULY 2017

CaseChat Overview and Summary

The case of Turner Constructions Pty Ltd v Keen involved a dispute between Turner Constructions, the plaintiff, and Keen, the defendant. Turner Constructions sought summary judgment against Keen for the outstanding debt of $632,884.84. The dispute arose from a building contract for the construction of a new office building in Sydney. Keen had been engaged as a subcontractor by Turner Constructions to carry out the works, but Keen defaulted on the contract, leading to Turner Constructions incurring additional costs to complete the works themselves. The case was heard in the Supreme Court of New South Wales.

The primary legal issues in the case were whether Turner Constructions was entitled to summary judgment for the outstanding debt and whether it was entitled to indemnity costs. Turner Constructions argued that Keen's default in the contract constituted a breach of contract, which entitled it to summary judgment. Turner Constructions further contended that the contract contained a clause that entitled it to indemnity costs for the additional costs incurred in completing the works. Keen, on the other hand, argued that there were disputes about the quantum of the debt and the reasonableness of the additional costs incurred by Turner Constructions.

The court found that Turner Constructions was entitled to summary judgment for the outstanding debt. The court held that Keen's default in the contract constituted a breach of contract, which entitled Turner Constructions to summary judgment. The court further found that the contract contained a clause that entitled Turner Constructions to indemnity costs for the additional costs incurred in completing the works. The court held that the clause was valid and enforceable and that Turner Constructions was entitled to indemnity costs for the additional costs incurred. The court also found that Keen was liable for Turner Constructions' legal costs of the proceedings.

In conclusion, the court granted Turner Constructions summary judgment for the outstanding debt of $632,884.84 and indemnity costs for the additional costs incurred in completing the works. The court also ordered Keen to pay Turner Constructions' legal costs of the proceedings. The decision provides guidance to contractors and subcontractors on the enforceability of indemnity cost clauses in building contracts.

Orders