Continental Ace Pty Ltd v Flender (Australia) Pty Ltd [2002] NSWCA 184

Continental Ace Pty Ltd v Flender (Australia) Pty Ltd [2002] NSWCA 184

The respondent was entitled to payment where the end product was approved, and the appellant failed to prove non-payment for the relevant work. The appellant's set-off and cross-claims failed due to lack of evidence linking specific sums to respondent's alleged breach, and lack of proof of agreement regarding airfreight costs.

Parties
Appellant: Continental Ace Pty Ltd; Respondent: Flender (Australia) Pty Ltd
Jurisdiction
Australia
Judgment Date
24 June 2002
Procedural Posture
Appeal / Judgment
Outcome
Appeals dismissed with costs
Legal Topics
Construction, Payment Clauses, Liquidated Damages, Set Off, Cross Claims
Contract Construction Payment Clauses Liquidated Damages Set Off Cross Claims

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 3 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Continental Ace Pty Ltd

Appellant

Flender (Australia) Pty Ltd

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the respondent was entitled to payment under the subcontract given 'pay when paid' clause
  2. 2 Whether the appellant was entitled to indemnity for liquidated damages potentially payable to EGAT
  3. 3 Whether the appellant's cross-claims for repayment of modification costs, travel expenses, and airfreight costs were valid

Ratio Decidendi

The respondent was entitled to payment where the end product was approved, and the appellant failed to prove non-payment for the relevant work. The appellant's set-off and cross-claims failed due to lack of evidence linking specific sums to respondent's alleged breach, and lack of proof of agreement regarding airfreight costs.

Court Disposition

Appeals dismissed with costs

Orders

  • The appeals are dismissed with costs