St Hilliers Construction v Fitzpatrick Investments [2013] NSWSC 1856

St Hilliers Construction v Fitzpatrick Investments [2013] NSWSC 1856

The Court of Appeal decided that the documents provided on 21 March 2012 satisfied the condition precedent in cl 9.9 and therefore both limbs of cl 5.8(A) had been satisfied for reduction of the principal's entitlement to security and return of the first guarantee. It did not expressly or necessarily decide that the Date of Practical Completion was 21 March 2012. The issue relevant to cl 5.8(B), concerning expiration of the Defects Liability Period and the second guarantee, was different. Accordingly, the defendant was not estopped or otherwise precluded from disputing that the Date of Practical Completion was 21 March 2012.

Jurisdiction
Australia
Judgment Date
22 November 2013
Procedural Posture
Building and Construction Contract Dispute Concerning Release of Bank Guarantee and Estoppel / Separate Questions Under UCPR Rule 28.2
Outcome
Defendant not estopped from disputing that the Date of Practical Completion was 21 March 2012; separate questions answered accordingly; plaintiff ordered to pay defendant's costs of the separate questions.
Legal Topics
['building Contracts' 'bank Guarantees' 'security Under Construction Contract' 'practical Completion' 'defects Liability Period' 'issue Estoppel' 'separate Questions']
['building and Construction' 'contract Law' 'civil Procedure' 'equity'] ['building Contracts' 'bank Guarantees' 'security Under Construction Contract' 'practical Completion' 'defects Liability Period' 'issue Estoppel' 'separate Questions']

Case Brief

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Procedural Posture

Building and Construction Contract Dispute Concerning Release of Bank Guarantee and Estoppel / Separate Questions Under UCPR Rule 28.2

Legal Issues

  1. 1 ['Whether the defendant was estopped or otherwise precluded by the NSW Court of Appeal decision from disputing that the Date of Practical Completion under the contract was 21 March 2012.' 'Whether the defendant was obliged to release or return the second guarantee and whether the ESD Defects Liability Period expired on 21 June 2013, if the first question were answered yes.']

Ratio Decidendi

The Court of Appeal decided that the documents provided on 21 March 2012 satisfied the condition precedent in cl 9.9 and therefore both limbs of cl 5.8(A) had been satisfied for reduction of the principal's entitlement to security and return of the first guarantee. It did not expressly or necessarily decide that the Date of Practical Completion was 21 March 2012. The issue relevant to cl 5.8(B), concerning expiration of the Defects Liability Period and the second guarantee, was different. Accordingly, the defendant was not estopped or otherwise precluded from disputing that the Date of Practical Completion was 21 March 2012.

Court Disposition

Defendant not estopped from disputing that the Date of Practical Completion was 21 March 2012; separate questions answered accordingly; plaintiff ordered to pay defendant's costs of the separate questions.

Orders

  • ['Question 1 answered: No.' 'Question 2 answered: Do not arise.' 'The answers to the separate questions are to be recorded.' "The plaintiff is to pay the defendant's costs of the separate questions."]