Futurepower Developments Pty Ltd v TJ & RF Fordham Pty Ltd t/as TRN Group [2019] NSWSC 1554

Futurepower Developments Pty Ltd v TJ & RF Fordham Pty Ltd t/as TRN Group [2019] NSWSC 1554

Futurepower's claims failed because the parties proceeded on the mutual assumption that Mr Harding was the Superintendent and Futurepower was estopped from denying it; alternatively, Futurepower could not rely on its own failure to ensure that the named Superintendent performed the role. The Court found that Mr Carbone instructed TRN, in Mr Harding's presence, to proceed with removal of the contaminated fill using PEA and EMS, and that TRN did not make misleading or deceptive representations causing the Fill Removal Variation payments. The disputed variations and extensions certified by Mr Harding could not be avoided on the asserted lack of written directions, the asbestos issue was a...

Jurisdiction
Australia
Judgment Date
18 October 2019
Procedural Posture
Building and Construction Contract Proceedings in the Equity Technology and Construction List / Principal Judgment After Hearing; Costs Deferred
Outcome
Judgment for TRN on Futurepower's claim and judgment for TRN on its cross-claim; costs deferred.
Legal Topics
['construction Contract Variations' 'latent Conditions' 'superintendent Authority' 'estoppel by Convention' 'misleading or Deceptive Conduct' 'quantum Meruit' 'liquidated Damages' 'security of Payment Adjudications']
['building and Construction' 'contract' 'equity' 'australian Consumer Law'] ['construction Contract Variations' 'latent Conditions' 'superintendent Authority' 'estoppel by Convention' 'misleading or Deceptive Conduct' 'quantum Meruit' 'liquidated Damages' 'security of Payment Adjudications']

Case Brief

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Procedural Posture

Building and Construction Contract Proceedings in the Equity Technology and Construction List / Principal Judgment After Hearing; Costs Deferred

Legal Issues

  1. 1 ['Whether Mr Harding, rather than the named Mr Attard, was to be treated as the Superintendent under the Contract or whether Futurepower was estopped from denying that he was the Superintendent.' "Whether Futurepower breached the Contract by failing to ensure that the named Superintendent fulfilled the Superintendent's role and functions." 'Whether the Fill Removal Variation and Miscellaneous Variations were ineffective because variations or directions were not given or approved in writing.' 'Whether TRN engaged in misleading or deceptive conduct under s 18 of the Australian Consumer Law in relation to the need to excavate, stockpile and remove asbestos contaminated fill.' 'Whether Futurepower was entitled to liquidated damages for alleged delay.' 'Whether TRN was entitled to recover the retained amount on its cross-claim, and whether it would alternatively have had a quantum meruit claim.']

Ratio Decidendi

Futurepower's claims failed because the parties proceeded on the mutual assumption that Mr Harding was the Superintendent and Futurepower was estopped from denying it; alternatively, Futurepower could not rely on its own failure to ensure that the named Superintendent performed the role. The Court found that Mr Carbone instructed TRN, in Mr Harding's presence, to proceed with removal of the contaminated fill using PEA and EMS, and that TRN did not make misleading or deceptive representations causing the Fill Removal Variation payments. The disputed variations and extensions certified by Mr Harding could not be avoided on the asserted lack of written directions, the asbestos issue was a...

Court Disposition

Judgment for TRN on Futurepower's claim and judgment for TRN on its cross-claim; costs deferred.

Orders

  • ["Judgment for TRN on Futurepower's claim." 'Judgment for TRN on its cross-claim in the amount of $24,723.68.' 'The issue of costs was deferred.']