State Concrete (NSW) Pty Ltd v Elpara Pty Ltd [2005] NSWSC 1008

State Concrete (NSW) Pty Ltd v Elpara Pty Ltd [2005] NSWSC 1008

The Defence to the Cross Claim was not struck out because it was sufficiently arguable that the contract was not an entire contract. The Court held that the wording of clause 26(a) and (b) was not so different from the clause considered in Nguyen v Luxury Design Homes Pty Limited [2004] NSWCA 178 as to make the Cross Defendant's construction unarguable. The caveat was not ordered to be removed because the Plaintiff's failures to comply with directions had been explained, the trial was fixed, and no immediate prejudice from continuation of the caveat was demonstrated.

Jurisdiction
Australia
Judgment Date
27 September 2005
Procedural Posture
Building Contract Proceedings; Application to Strike Out Defence to Cross Claim / Interlocutory Application in the Technology & Construction List
Outcome
Application to strike out Defence to Cross Claim dismissed; order for removal of caveat refused; procedural directions and costs orders made.
Legal Topics
['strike Out Application' 'defence to Cross Claim' 'entire Contract' 'termination of Building Contract' 'contract Construction' 'caveat' 'costs']
['civil Procedure' 'building and Construction' 'contract Law'] ['strike Out Application' 'defence to Cross Claim' 'entire Contract' 'termination of Building Contract' 'contract Construction' 'caveat' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Building Contract Proceedings; Application to Strike Out Defence to Cross Claim / Interlocutory Application in the Technology & Construction List

Legal Issues

  1. 1 ["Whether the Defence to the Cross Claim should be struck out because the Cross Defendant's position was so clearly unarguable as not to warrant proceeding to trial." 'Whether there was a sufficiently arguable case that the building contract was not an entire contract.' 'Whether clause 26 of the contract was materially different from clause 24 considered in Nguyen v Luxury Design Homes Pty Limited [2004] NSWCA 178.' 'Whether the caveat lodged by the Plaintiff should be removed because of alleged failure to prosecute the proceedings with due diligence.']

Ratio Decidendi

The Defence to the Cross Claim was not struck out because it was sufficiently arguable that the contract was not an entire contract. The Court held that the wording of clause 26(a) and (b) was not so different from the clause considered in Nguyen v Luxury Design Homes Pty Limited [2004] NSWCA 178 as to make the Cross Defendant's construction unarguable. The caveat was not ordered to be removed because the Plaintiff's failures to comply with directions had been explained, the trial was fixed, and no immediate prejudice from continuation of the caveat was demonstrated.

Court Disposition

Application to strike out Defence to Cross Claim dismissed; order for removal of caveat refused; procedural directions and costs orders made.

Orders

  • ["The Defendant/Cross Claimant's application to strike out the Defence to the Cross Claim was dismissed." 'By 4pm on 7 October 2005 the Plaintiff was directed to notify the Defendant in writing of the facts and circumstances relied upon in alleging that the subject contract is not an entire contract.' 'The Plaintiff...