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Tyco Fire and Security v Norfolk Mechanical

Tyco Fire and Security v Norfolk Mechanical

Case [2007] NSWSC 585 13 June 2007

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CITATION: Tyco Fire & Security & Anor v Norfolk Mechanical & Ors [2007] NSWSC 585

HEARING DATE(S): 9, 10 and 15 May 2007

JUDGMENT DATE :
13 June 2007

JURISDICTION: Commercial List

JUDGMENT OF: McDougall J at [1]

DECISION: See para [106] of judgment

CATCHWORDS: CONTRACTS - construction and interpretation - price adjustment clause - plaintiff gave defendant dispute notice - specific time regime for furtherance or resolution of dispute - whether time of the essence - whether defendant's response to dispute notice delivered in time - definition of "Business Day" - distinction between delivery and receipt - whether deemed receipt of notice amounts to delivery - whether time began to run from delivery - form of relief - costs

LEGISLATION CITED: Conveyancing Act 1919
English Bills of Exchange Act 1882
English Limitation Act 1939

CASES CITED: Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99
Curtice v London City and Midland Bank, Limited [1908] 1 K.B. 293
Eaglehill Ltd v J. Needham Builders Ltd [1973] AC 992
FAI General Insurance Company Ltd (In Liquidation) v Parras and Others (2002) 55 NSWLR 498
G R Mailman & Associates Pty Ltd v Wormald (Aust) Pty Ltd (1991) 24 NSWLR 80
Lolly Pops (Harbourside) Pty Ltd v Werncog Pty Ltd (1998) 9 BPR 16, 361
Newborough (Lord) v Jones [1975] Ch 90
NM Superannuation Pty Ltd v Hughes and Others (1992) 27 NSWLR 26
N.V. Stoomv Maats “de Maas” v Nippon Yusen Kaisha (The “Pendrecht”) [1980] 2 Lloyd’s Rep 56
Parras & Ors v FAI General Insurance Company Ltd (Prov Liq apptd) [2001] NSWSC 1077
Toll (FGCT) Pty Limited v Alphapharm Pty Limited and Others (2004) 219 CLR 165
United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904
United Scientific Holdings (see Gollin & Company Limited v Karenlee Nominees Proprietary Limited and Another (1983) 153 CLR 455

PARTIES: Tyco Fire & Security Pty Limited (First Plaintiff)
Firmagroup Operations Holdings Pty Limited (Second Plaintiff)
Norfolk Mechanical (Aust) Pty Limited (First Defendant)
Norfolk Electrical (Aust) Pty Limited (Second Defendant)
Norfolk Building Products (Aust) Pty Limited (Third Defendant)

FILE NUMBER(S): SC 50127/05

COUNSEL: S G Finch SC/G K J Rich (Plaintiffs)
A J L Bannon SC/D B Studdy (Defendants)

SOLICITORS: Allens Arthur Robinson (Plaintiffs)
Gilbert & Tobin (Defendants)

Tyco Fire & Security & Anor v Norfolk Mechanical & Ors [2007] NSWSC 585

INDEX TO JUDGMENT

Para

The issues 2

Factual background 5

Relevant contractual provisions 7

First issue: is time of the essence of clause 7.7(b)? 13

Issue 2: was Norfolk’s response delivered in time? 23

Background 23

The competing submissions 24

Decision 34

Approach to construction 35

Delivery and receipt: the relevant principles 39

Analysis 61

Conclusion 89

Consequences 91

Issues 14 to 17: the Completion Balance Sheets of 16 November and 9 December 2004 95

Relief 104

Orders 106

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

13 June 2007

MECHANICAL PTY LIMITED & ORS

JUDGMENT

1 HIS HONOUR:…

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 Tyco Fire and Security v Norfolk Mechanical

Details

AGLC: Tyco Fire and Security v Norfolk Mechanical [2007] NSWSC 585
Case: [2007] NSWSC 585
Decision Date: 13 June 2007

CaseChat Overview and Summary

The matter between Tyco Fire and Security and Norfolk Mechanical involved a contractual dispute regarding a price adjustment clause. Norfolk Mechanical, the defendant, was required to provide a price adjustment notice to Tyco Fire and Security, the plaintiff, within a specified time frame. The plaintiff gave the defendant a dispute notice, and the contract outlined a specific regime for the resolution or furtherance of the dispute. The central legal issues were whether the time stipulated for the defendant's response was of the essence and whether the defendant's response to the dispute notice was delivered in time. Additionally, the court had to determine the meaning of "Business Day" in the context of the contract, whether the delivery or receipt of the notice was pertinent, and whether deemed receipt of the notice constituted delivery. The court also needed to decide whether the time began to run from the delivery of the notice and the appropriate form of relief, including the costs incurred.

The court held that the time for the defendant's response was indeed of the essence. The defendant's response to the dispute notice was not delivered in time, as the contract specified a strict time regime for such responses. Regarding the definition of "Business Day," the court ruled that the contract did not consider the receipt of the notice as the commencement of the time period but rather its delivery. The court clarified that deemed receipt of the notice did not equate to its delivery. Consequently, the time began to run from the delivery of the notice. As for the form of relief, the court awarded costs to the plaintiff, Tyco Fire and Security, for the defendant's failure to comply with the contractual obligations.

In summary, the court found that the defendant's response to the dispute notice was not timely, and the time period was triggered by the delivery of the notice rather than its receipt. The court awarded costs to the plaintiff, Tyco Fire and Security, for the defendant's non-compliance with the contractual obligations. The judgment emphasised the importance of adhering to strict time frames in contractual disputes and the consequences of failing to do so.

Orders