P Ward Civil Engineering v Civil & Civic [2003] NSWSC 133

P Ward Civil Engineering v Civil & Civic [2003] NSWSC 133

Clause 8.3.1 of the C&C-Holland contract excluded C&C's liability to Holland for delay, disruption or interference arising out of or connected with acts or omissions of others, including Ward's breach of contract. Because C&C had no liability to Holland for delay in making the site available, there was no liability upon which clause 8.4 of the C&C-Ward contract could operate, and C&C had no maintainable claim against Ward for the late handover. The referee's supplementary report should not be adopted in relation to late completion damages.

Jurisdiction
Australia
Judgment Date
13 March 2003
Procedural Posture
Building Contract Dispute Concerning Adoption of a Referee's Supplementary Report / Determination Whether the Court Should Adopt the Referee's Supplementary Report Under Part 72 of the Supreme Court Rules
Outcome
The referee's supplementary report was not to be adopted insofar as it dealt with late completion damages; C&C had no maintainable claim against Ward in respect of the late handover. Short minutes were to be brought in.
Legal Topics
["referee's Report" 'indemnity Clause' 'exclusion of Liability' 'delay Damages' 'liquidated Damages and Penalties' 'breach of Contract']
['contract Law' 'building and Construction' 'civil Procedure'] ["referee's Report" 'indemnity Clause' 'exclusion of Liability' 'delay Damages' 'liquidated Damages and Penalties' 'breach of Contract']

Case Brief

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Procedural Posture

Building Contract Dispute Concerning Adoption of a Referee's Supplementary Report / Determination Whether the Court Should Adopt the Referee's Supplementary Report Under Part 72 of the Supreme Court Rules

Legal Issues

  1. 1 ["Whether the referee's supplementary report should be adopted in relation to late completion damages." "Whether clause 8.3.1 of the contract between C&C and Holland excluded C&C's liability to Holland for delay in making the site available." 'Whether clause 8.4 of the contract between C&C and Ward operated to indemnify C&C where clause 8.3.1 excluded liability to Holland.' "Whether Ward's breach of contract was outside the operation of clause 8.3.1 of the C&C-Holland contract."]

Ratio Decidendi

Clause 8.3.1 of the C&C-Holland contract excluded C&C's liability to Holland for delay, disruption or interference arising out of or connected with acts or omissions of others, including Ward's breach of contract. Because C&C had no liability to Holland for delay in making the site available, there was no liability upon which clause 8.4 of the C&C-Ward contract could operate, and C&C had no maintainable claim against Ward for the late handover. The referee's supplementary report should not be adopted in relation to late completion damages.

Court Disposition

The referee's supplementary report was not to be adopted insofar as it dealt with late completion damages; C&C had no maintainable claim against Ward in respect of the late handover. Short minutes were to be brought in.

Orders

  • ['The supplementary report of the referee should not be adopted by the Court insofar as it deals with late completion damages in section 2 of the report on pages 4 to 22.' "Clause 8.3.1 of the contract between C&C and Holland had the effect that no liability in damages attached to C&C for delay in making the site...