DURIAN PTY LTD v PENRITH CITY COUNCIL [1991] NSWCA 85

DURIAN PTY LTD v PENRITH CITY COUNCIL [1991] NSWCA 85

The contractor is entitled to the lump sum price agreed under the contract. CL11 adjustments require a valid direction from the Superintendent which did not occur before practical completion. No implied term operates to reduce the lump sum for overlap or absence of work under items 4-9.

Parties
Appellant/contractor: Durian Pty Ltd; Respondent/principal: Penrith City Council
Jurisdiction
Australia
Judgment Date
04 September 1991
Procedural Posture
Appeal From Common Law Division / Court of Appeal Judgment
Outcome
Appeal allowed
Legal Topics
Building Contracts, Lump Sum Contracts, Schedule of Prices, Variation Provisions, Implied Terms
Contract Law Construction Law Building Contracts Lump Sum Contracts Schedule of Prices Variation Provisions Implied Terms

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Parties

Durian Pty Ltd

Appellant/contractor

Penrith City Council

Respondent/principal

Procedural Posture

Appeal From Common Law Division / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the contractor is entitled to certain amounts under items 4-9 of the Schedule of Prices in a building contract.
  2. 2 Proper construction and application of CL11 of the General Conditions of Contract relating to adjustments for provisional sums and quantities.
  3. 3 Whether a direction was validly given by the Superintendent to trigger adjustment provisions under CL11.

Ratio Decidendi

The contractor is entitled to the lump sum price agreed under the contract. CL11 adjustments require a valid direction from the Superintendent which did not occur before practical completion. No implied term operates to reduce the lump sum for overlap or absence of work under items 4-9.

Court Disposition

Appeal allowed

Orders

  • Appeal upheld with costs.
  • Parties to bring in short minutes to give effect to conclusions.