Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 754

Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 754

Clause 66(2) expressly provided that s.94(1A) extended to contracts entered into before its commencement. The "Despite" words in s.94(1A) did not limit the provision to contracts governed by ss.92(2) and 94(1) as enacted in 1999; they merely ensured that any inconsistency with those provisions did not impede the entitlement created by s.94(1A). Accordingly, the plaintiff's right to a quantum meruit sum under s.94(1A), if just and equitable, was not precluded by the defendant's construction argument.

Jurisdiction
Australia
Judgment Date
19 August 2004
Procedural Posture
Equity Division Technology and Construction List Proceedings Concerning Residential Building Work and Quantum Meruit Recovery Under the Home Building Act 1989 / After Earlier Reasons, the Defendant Was Granted Leave to File a Further Amended Defence Raising Whether S.94(1 A) Applied to a Contract Entered Into Before Its Enactment; Written Submissions Were Directed.
Outcome
Short minutes to be brought in; defendant's construction argument did not preclude the plaintiff's quantum meruit claim.
Legal Topics
['home Building Act 1989 Insurance Requirements' 'retrospective Operation of Statutory Amendments' 'quantum Meruit' 'effect of "despite" or "notwithstanding" Clauses']
['statutory Interpretation' 'building and Construction' 'equity'] ['home Building Act 1989 Insurance Requirements' 'retrospective Operation of Statutory Amendments' 'quantum Meruit' 'effect of "despite" or "notwithstanding" Clauses']

Case Brief

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Procedural Posture

Equity Division Technology and Construction List Proceedings Concerning Residential Building Work and Quantum Meruit Recovery Under the Home Building Act 1989 / After Earlier Reasons, the Defendant Was Granted Leave to File a Further Amended Defence Raising Whether S.94(1 A) Applied to a Contract Entered Into Before Its Enactment; Written Submissions Were Directed.

Legal Issues

  1. 1 ['Whether s.94(1A) of the Home Building Act 1989 applied to a residential building contract entered into on 4 August 1998 before s.94(1A) was enacted.' 'Whether the words "Despite section 92(2) and subsection (1)" limited s.94(1A) to contracts affected by ss.92(2) and 94(1) in the form introduced in 1999.' "Whether the plaintiff's quantum meruit claim was precluded by the absence of the required contract of insurance."]

Ratio Decidendi

Clause 66(2) expressly provided that s.94(1A) extended to contracts entered into before its commencement. The "Despite" words in s.94(1A) did not limit the provision to contracts governed by ss.92(2) and 94(1) as enacted in 1999; they merely ensured that any inconsistency with those provisions did not impede the entitlement created by s.94(1A). Accordingly, the plaintiff's right to a quantum meruit sum under s.94(1A), if just and equitable, was not precluded by the defendant's construction argument.

Court Disposition

Short minutes to be brought in; defendant's construction argument did not preclude the plaintiff's quantum meruit claim.

Orders

  • ["The parties were directed to bring in an agreed statement of the directions and other steps they considered necessary to bring both proceedings to a conclusion or, if there was no agreement, each party's statement of the directions and steps it considered necessary."]