Wright v Lend Lease Building Pty Ltd; Intercon Engineering Pty Ltd v Lend Lease Building Pty Ltd [2014] NSWCA 463

Wright v Lend Lease Building Pty Ltd; Intercon Engineering Pty Ltd v Lend Lease Building Pty Ltd [2014] NSWCA 463

The literal meaning of the Appendix provision that the Defects Liability Periods expire 24 months after the Date of Final Acceptance as defined under the Head Contract was not absurd. The parties were free to make expiry of the subcontract Defects Liability Period depend on a future event under the Head Contract, even if the date was not yet known. The commercial purpose was to prevent Lend Lease from having to release retention under the subcontracts before the defects liability period under the Head Contract had expired. The alternative argument failed because it required replacing "Date of Final Acceptance" with "Date for Final Acceptance" and, even if the Head Contract were considered...

Jurisdiction
Australia
Judgment Date
23 December 2014
Procedural Posture
Appeal in a Contract Construction Dispute Concerning Subcontracts and Release of Retention Monies / Appeal to the NSW Court of Appeal From the Decision of Ball J Dismissing the Appellants' Claims; Appellants Also Sought Leave to Amend Their Notices of Appeal
Outcome
Leave for the appellants to amend their notices of appeal refused; appeal dismissed with costs.
Legal Topics
['construction and Interpretation of Contracts' 'construction of Subcontracts by Reference to Head Contract' 'defects Liability Periods' 'retention Monies and Bank Guarantees' 'supplying, Omitting or Correcting Contractual Words to Avoid Commercial Absurdity' 'leave to Raise New Argument on Appeal']
['contracts' 'construction Contracts'] ['construction and Interpretation of Contracts' 'construction of Subcontracts by Reference to Head Contract' 'defects Liability Periods' 'retention Monies and Bank Guarantees' 'supplying, Omitting or Correcting Contractual Words to Avoid Commercial Absurdity' 'leave to Raise New Argument on Appeal']

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Procedural Posture

Appeal in a Contract Construction Dispute Concerning Subcontracts and Release of Retention Monies / Appeal to the NSW Court of Appeal From the Decision of Ball J Dismissing the Appellants' Claims; Appellants Also Sought Leave to Amend Their Notices of Appeal

Legal Issues

  1. 1 ['Whether the Defects Liability Periods in the subcontracts expired 24 months after Substantial Completion or 24 months after the Date of Final Acceptance as defined under the Head Contract.' 'Whether the words "after the Date of Final Acceptance (as defined under the Head Contract)" should be omitted from the Appendix to avoid commercial absurdity or inconsistency.' 'Whether the Date of Final Acceptance under the Head Contract should be read as the Date for Final Acceptance.' 'Whether leave should be granted to amend the notices of appeal to raise an alternative construction argument not advanced below.']

Ratio Decidendi

The literal meaning of the Appendix provision that the Defects Liability Periods expire 24 months after the Date of Final Acceptance as defined under the Head Contract was not absurd. The parties were free to make expiry of the subcontract Defects Liability Period depend on a future event under the Head Contract, even if the date was not yet known. The commercial purpose was to prevent Lend Lease from having to release retention under the subcontracts before the defects liability period under the Head Contract had expired. The alternative argument failed because it required replacing "Date of Final Acceptance" with "Date for Final Acceptance" and, even if the Head Contract were considered...

Court Disposition

Leave for the appellants to amend their notices of appeal refused; appeal dismissed with costs.

Orders

  • ['Leave for the appellants to amend their notices of appeal refused.' 'Appeal dismissed with costs.']