DEMTECH v BRAMBLES [2004] NSWSC 242

DEMTECH v BRAMBLES [2004] NSWSC 242

Demtech committed serious breaches of the subcontract by failing to manage asbestos and SMF contamination and by undertaking inherently unsafe demolition work on boiler 6 otherwise than in accordance with the approved WorkCover plan and permit. Those breaches were required to be notified to WorkCover, triggered Brambles' right to issue the show cause notice, and were incapable of remedy because the collapse, death and exposure risks could not be undone. Brambles was therefore entitled to take the works out of Demtech's control, complete them through another subcontractor, and recover the excess completion costs and related amounts proved.

Jurisdiction
Australia
Judgment Date
26 March 2004
Procedural Posture
Contract Proceedings Arising From a Demolition Subcontract, Heard on Amended Cross Claim / Plaintiff's Claim Stayed for Failure to Provide Security for Costs; Amended Cross Claim Heard and Determined
Outcome
Judgment for the cross-claimant Brambles against the cross-defendant Demtech on the amended cross-claim in the sum of $2,085,520, with costs.
Legal Topics
['demolition Subcontract' 'show Cause Notice' 'serious Breach' 'breach Incapable of Remedy' 'asbestos and Synthetic Mineral Fibre Contamination' 'work Cover Permit Compliance' 'completion Costs and Damages']
['contract Law' 'construction Law' 'occupational Health and Safety' 'environmental Law'] ['demolition Subcontract' 'show Cause Notice' 'serious Breach' 'breach Incapable of Remedy' 'asbestos and Synthetic Mineral Fibre Contamination' 'work Cover Permit Compliance' 'completion Costs and Damages']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Contract Proceedings Arising From a Demolition Subcontract, Heard on Amended Cross Claim / Plaintiff's Claim Stayed for Failure to Provide Security for Costs; Amended Cross Claim Heard and Determined

Legal Issues

  1. 1 ['Whether Demtech breached the subcontract in relation to collection, removal and disposal of hazardous waste materials, principally asbestos and SMF.' 'Whether Demtech breached the subcontract in relation to the attempted demolition and collapse of boiler 6.' "Whether any breach triggered Brambles' contractual right to give a show cause notice." 'Whether the breaches were incapable of remedy or capable of remedy.' 'Whether Brambles was contractually justified in taking over the site and completing the boiler demolition work through Moltoni Adams.' 'Whether Brambles was entitled to recover the amounts spent to complete the boiler demolition work, and the amount recoverable.']

Ratio Decidendi

Demtech committed serious breaches of the subcontract by failing to manage asbestos and SMF contamination and by undertaking inherently unsafe demolition work on boiler 6 otherwise than in accordance with the approved WorkCover plan and permit. Those breaches were required to be notified to WorkCover, triggered Brambles' right to issue the show cause notice, and were incapable of remedy because the collapse, death and exposure risks could not be undone. Brambles was therefore entitled to take the works out of Demtech's control, complete them through another subcontractor, and recover the excess completion costs and related amounts proved.

Court Disposition

Judgment for the cross-claimant Brambles against the cross-defendant Demtech on the amended cross-claim in the sum of $2,085,520, with costs.

Orders

  • ['Entry of judgment for the cross-claimant against the cross-defendant on the amended cross-claim in the sum of $2,085,520.' "The cross-defendant is to pay the cross-claimant's costs of the cross-claim." 'The exhibits are to be retained, dealt with and disposed of in accordance with the Rules.']