Eden Co Construction Pty Ltd v Leed Engineering and Construction Pty Ltd [2018] NSWSC 1882

Eden Co Construction Pty Ltd v Leed Engineering and Construction Pty Ltd [2018] NSWSC 1882

Clause 23 did not contain clear words excluding the defendant's common law right to terminate for repudiatory breach. The plaintiff's repeated and defiant breaches of safety obligations and directions, particularly working under a suspended load despite warnings, evinced an unwillingness to perform the subcontract substantially in accordance with its terms and justified termination at common law. The summons was therefore dismissed.

Jurisdiction
Australia
Judgment Date
12 December 2018
Procedural Posture
Appeal From a Local Court Decision Concerning Termination of a Construction Subcontract / Supreme Court Summons Seeking Leave to Appeal and Appeal on the Merits
Outcome
Leave to appeal granted so far as necessary; summons dismissed; plaintiff to pay the defendant's costs of the summons.
Legal Topics
['termination for Breach' 'repudiation' 'intermediate Terms' 'construction of Termination Clause' 'leave to Appeal From Local Court' 'workplace Safety Obligations']
['contracts' 'construction Law' 'civil Procedure'] ['termination for Breach' 'repudiation' 'intermediate Terms' 'construction of Termination Clause' 'leave to Appeal From Local Court' 'workplace Safety Obligations']

Case Brief

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Procedural Posture

Appeal From a Local Court Decision Concerning Termination of a Construction Subcontract / Supreme Court Summons Seeking Leave to Appeal and Appeal on the Merits

Legal Issues

  1. 1 ["Whether clause 23 of the subcontract was the exclusive source of the defendant's right to terminate and excluded common law termination rights." 'Whether the defendant failed to comply with the notice and opportunity to remedy procedure in clause 23 before terminating.' "Whether the plaintiff's breaches of safety requirements and directions were sufficiently serious to justify termination at common law."]

Ratio Decidendi

Clause 23 did not contain clear words excluding the defendant's common law right to terminate for repudiatory breach. The plaintiff's repeated and defiant breaches of safety obligations and directions, particularly working under a suspended load despite warnings, evinced an unwillingness to perform the subcontract substantially in accordance with its terms and justified termination at common law. The summons was therefore dismissed.

Court Disposition

Leave to appeal granted so far as necessary; summons dismissed; plaintiff to pay the defendant's costs of the summons.

Orders

  • ['Leave to appeal is granted so far as is necessary.' 'The summons is dismissed.' "The plaintiff is to pay the defendant's costs of the summons." 'Liberty is granted to the Defendant to file an application for indemnity costs by Friday 14 December 2018.' 'The plaintiff is to file any evidence in reply by 21 December...