Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd [2021] NSWDC 673

Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd [2021] NSWDC 673

Forte engaged Moit by requesting and permitting it to commence work on 25 May 2018 on the basis of Moit's Tender Revision - Final dated 21 May 2018. Forte could not unilaterally impose the materially inconsistent Subcontract and Scope of Works by a letter stating that non-signature would be treated as acceptance. The parties fell within the first Masters v Cameron category: they intended to be immediately bound on the Tender terms while contemplating a fuller formal contract, but no such consistent formal contract was agreed. Accordingly, Forte's claim failed, most deductions and liquidated damages were disallowed, Moit was entitled to its allowed variations, and judgment was entered for...

Jurisdiction
Australia
Judgment Date
14 December 2021
Procedural Posture
Civil Contract Proceedings Concerning Formation and Terms of a Construction Subcontract, Including a Plaintiff's Claim and Defendant's Cross Claim / Principal Judgment After Hearing
Outcome
Judgment for the defendant on the plaintiff's claim and judgment for the defendant on the cross-claim for $418,485.04, with costs payable by the plaintiff subject to any further submissions about settlement offers.
Legal Topics
['offer and Acceptance' 'objective Test for Contract Formation' 'implied Acceptance by Conduct' 'tender and Subcontract Terms' 'masters V Cameron Categories' 'variations' 'deductions' 'extensions of Time' 'liquidated Damages']
['contract Law' 'construction Law'] ['offer and Acceptance' 'objective Test for Contract Formation' 'implied Acceptance by Conduct' 'tender and Subcontract Terms' 'masters V Cameron Categories' 'variations' 'deductions' 'extensions of Time' 'liquidated Damages']

Case Brief

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Procedural Posture

Civil Contract Proceedings Concerning Formation and Terms of a Construction Subcontract, Including a Plaintiff's Claim and Defendant's Cross Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Forte and Moit entered into a contract and, if so, when it was formed.' "Whether the contract was constituted by Forte's Subcontract and Scope of Works or by Moit's Tender Revision - Final dated 21 May 2018." "Whether Moit accepted Forte's proposed Subcontract by silence, by commencing work, or by extension of time claims referring to clause 6 of the proposed Subcontract." 'Whether Forte was entitled to deductions, including dewatering ground water, concrete barriers, OSD Tank excavation, anchor de-stressing and liquidated damages.' 'Whether Moit was entitled to claimed variations, including GSW removal and other additional works.']

Ratio Decidendi

Forte engaged Moit by requesting and permitting it to commence work on 25 May 2018 on the basis of Moit's Tender Revision - Final dated 21 May 2018. Forte could not unilaterally impose the materially inconsistent Subcontract and Scope of Works by a letter stating that non-signature would be treated as acceptance. The parties fell within the first Masters v Cameron category: they intended to be immediately bound on the Tender terms while contemplating a fuller formal contract, but no such consistent formal contract was agreed. Accordingly, Forte's claim failed, most deductions and liquidated damages were disallowed, Moit was entitled to its allowed variations, and judgment was entered for...

Court Disposition

Judgment for the defendant on the plaintiff's claim and judgment for the defendant on the cross-claim for $418,485.04, with costs payable by the plaintiff subject to any further submissions about settlement offers.

Orders

  • ["Judgment for the defendant on the plaintiff's claim." 'Judgment for the defendant on the cross-claim for $418,485.04.' "Order the plaintiff to pay the defendant's costs of the proceedings." 'Grant leave to approach my Associate within 7 days to obtain a date for submissions as to any application for a different...