Smiths Specialised Building Services Pty Ltd v Brisull Industries Pty Ltd [2021] NSWDC 331

Smiths Specialised Building Services Pty Ltd v Brisull Industries Pty Ltd [2021] NSWDC 331

Brisull bore the onus of proving the alleged express term requiring Smiths to pass on to its subcontractors the hourly rates and allowances paid by Brisull. The Court preferred Smiths' account of how the oral agreements were formed and, in any event, held that even Mr Britt's account did not clearly establish such an express obligation. Brisull's contract cross-claim therefore failed, and with it the set-off defence to Smiths' debt claim. Smiths made out its claim in debt for the unpaid invoices.

Jurisdiction
Australia
Judgment Date
21 July 2021
Procedural Posture
Civil Contract Debt Claim With Cross Claim for Damages / Principal Judgment After Hearing; Short Minutes and Costs Submissions Directed
Outcome
Smiths succeeded on its debt claim; Brisull failed on its cross-claim and set-off defence. Final orders, including costs, were to be determined on the papers after short minutes and submissions.
Legal Topics
['oral Contract for Supply of Maintenance Services' 'express Contractual Terms' 'subcontractor Labour Rates and Allowances' 'set Off and Cross Claim' 'contract Damages' 'reliance Interest and Loss of Bargain' 'third Party Benefit' 'equitable Estoppel and Conventional Estoppel' 'defective Works Claim']
['contracts' 'damages'] ['oral Contract for Supply of Maintenance Services' 'express Contractual Terms' 'subcontractor Labour Rates and Allowances' 'set Off and Cross Claim' 'contract Damages' 'reliance Interest and Loss of Bargain' 'third Party Benefit' 'equitable Estoppel and Conventional Estoppel' 'defective Works Claim']

Case Brief

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Procedural Posture

Civil Contract Debt Claim With Cross Claim for Damages / Principal Judgment After Hearing; Short Minutes and Costs Submissions Directed

Legal Issues

  1. 1 ['Whether, in relation to the EPM engagement, Smiths was obliged to pay its workers $90 per hour and a $200 per day living away from home allowance.' 'Whether, in relation to the TransGrid engagement, Smiths was obliged to pay its workers $85 per hour and living away from home allowances of $65 per day where the worker reached home for the night or otherwise $200 per day.' 'Whether Smiths breached any such payment term.' 'What loss or damage Brisull suffered as a result of any breach.' 'Whether equitable estoppel or conventional estoppel precluded Brisull from asserting the alleged obligations.' 'Whether works carried out by Smiths at the Bannaby and Broken Hill TransGrid stations were defective and the cost of rectification.']

Ratio Decidendi

Brisull bore the onus of proving the alleged express term requiring Smiths to pass on to its subcontractors the hourly rates and allowances paid by Brisull. The Court preferred Smiths' account of how the oral agreements were formed and, in any event, held that even Mr Britt's account did not clearly establish such an express obligation. Brisull's contract cross-claim therefore failed, and with it the set-off defence to Smiths' debt claim. Smiths made out its claim in debt for the unpaid invoices.

Court Disposition

Smiths succeeded on its debt claim; Brisull failed on its cross-claim and set-off defence. Final orders, including costs, were to be determined on the papers after short minutes and submissions.

Orders

  • ['The plaintiff/cross-defendant is to file and serve short minutes of order and a short outline of submissions, not exceeding 3 pages excluding relevant attachments, on the question of costs by 26 July 2021.' "The defendant/cross-claimant is to file and serve any submissions, not exceeding 3 pages excluding relevant...