Beckhaus v Brewarrina [2004] NSWSC 840

Beckhaus v Brewarrina [2004] NSWSC 840

The plaintiff did not achieve practical completion because the required level of testing at culvert locations had not been carried out. The contract was a lump sum contract but contained operative provisions for provisional quantities to be measured and paid. The plaintiff was entitled to the provisional quantity amount and to variations 10 and 17, but not to variations 11, 16, 18 or 20; variation 21 was left for further submissions. The Council failed to prove its broad compaction and defect case because the Barnson testing was unreliable and the expert conclusions based on it were given little weight, while the CETS testing and site evidence supported substantial compliance. The Council...

Jurisdiction
Australia
Judgment Date
16 September 2004
Procedural Posture
Building and Construction Contract Proceedings With Cross Claims / Final Hearing Before Master Macready After Referral of the Whole Proceedings for Hearing
Outcome
Parties directed to bring in short minutes to give effect to the reasons; Council entitled only to damages for two small rectification matters; further submissions permitted on matters including interest and variation 21.
Legal Topics
['construction of Earthwork Levees' 'progress Claim and Practical Completion' 'lump Sum Contract and Provisional Quantities' 'variations' 'defective Work and Rectification Damages' 'building and Construction Industry Security of Payment Act 1999 (nsw)' 'misleading or Deceptive Conduct in Tender Process' 'expert Evidence']
['building and Construction' 'contract' 'australian Consumer Law and Trade Practices' 'evidence'] ['construction of Earthwork Levees' 'progress Claim and Practical Completion' 'lump Sum Contract and Provisional Quantities' 'variations' 'defective Work and Rectification Damages' 'building and Construction Industry Security of Payment Act 1999 (nsw)' 'misleading or Deceptive Conduct in Tender Process' 'expert Evidence']

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Procedural Posture

Building and Construction Contract Proceedings With Cross Claims / Final Hearing Before Master Macready After Referral of the Whole Proceedings for Hearing

Legal Issues

  1. 1 ['Whether the plaintiff achieved practical completion under the contract.' 'Whether progress claim number 7 was contractually valid and whether required information under clause 42.1 had been supplied.' 'Whether the Building and Construction Industry Security of Payment Act 1999 (NSW) applied to the progress payment claim.' 'Whether the contract was a lump sum contract and how provisional quantity items were to be valued.' 'Whether claimed variations 10, 11, 16, 17, 18, 20 and 21 were allowable.' 'Whether the levees complied with contractual requirements for compaction, linear shrinkage, key trenches, road pavements, culverts and the Doyle Street levee.' "Whether the plaintiff and Mr Dennis Beckhaus engaged in misleading or deceptive conduct in relation to Beckhaus Civil's financial position and quality assurance system." 'Whether any misleading or deceptive conduct caused recoverable loss to the Council.']

Ratio Decidendi

The plaintiff did not achieve practical completion because the required level of testing at culvert locations had not been carried out. The contract was a lump sum contract but contained operative provisions for provisional quantities to be measured and paid. The plaintiff was entitled to the provisional quantity amount and to variations 10 and 17, but not to variations 11, 16, 18 or 20; variation 21 was left for further submissions. The Council failed to prove its broad compaction and defect case because the Barnson testing was unreliable and the expert conclusions based on it were given little weight, while the CETS testing and site evidence supported substantial compliance. The Council...

Court Disposition

Parties directed to bring in short minutes to give effect to the reasons; Council entitled only to damages for two small rectification matters; further submissions permitted on matters including interest and variation 21.

Orders

  • ['The parties are directed to bring in short minutes to give effect to the reasons expressed in the judgment.' 'If there are matters requiring further consideration, such as interest and variation 21, the parties may provide submissions to be dealt with on the next occasion.']