Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184

Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184

The Court dismissed the appeal, holding that the proper construction of the Second Consortial Agreement was that Mainteck's obligations were defined by reference to the Main Contract Schedules (1A and 4), not limited by the Bill of Materials; the adoption of referee's reports by the primary judge was an exercise of discretion to which no House v The King error was shown; further, Mainteck failed to make out its disruption/global claim, as there were significant neutral causes not attributable to the respondents and no adequate basis for apportionment. Leave to amend the notice of appeal was refused due to delay and lack of explanation.

Jurisdiction
Australia
Judgment Date
06 June 2014
Procedural Posture
Principal Judgment / Appeal From Supreme Court of New South Wales, Equity Division [2013] NSWSC 266
Outcome
Appeal dismissed; notice of motion to amend notice of appeal dismissed; orders for parties to confer or submit on costs.
Legal Topics
['interpretation of Commercial Contracts' 'construction and Engineering Contracts' 'referee Reports and Their Adoption' 'application to Amend Notice of Appeal' 'global Claims for Delay and Disruption' 'variation Claims' "legal Effect of 'turnkey' Contract Label" 'costs Orders and Calderbank Offers']
['contract Law' 'building and Construction Law' 'civil Procedure'] ['interpretation of Commercial Contracts' 'construction and Engineering Contracts' 'referee Reports and Their Adoption' 'application to Amend Notice of Appeal' 'global Claims for Delay and Disruption' 'variation Claims' "legal Effect of 'turnkey' Contract Label" 'costs Orders and Calderbank Offers']

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Procedural Posture

Principal Judgment / Appeal From Supreme Court of New South Wales, Equity Division [2013] NSWSC 266

Legal Issues

  1. 1 ["Proper construction of the Second Consortial Agreement between Mainteck and Stein Heurtey and scope of supply and services; Whether the Bill of Materials limited Mainteck's obligations; Whether findings of referee and their adoption by primary judge involved House v The King error; Whether Mainteck was entitled to amend its notice of appeal; Principles for 'global claims' for delay/disruption in construction contracts; Costs discretion concerning indemnity costs after Calderbank offer"]

Ratio Decidendi

The Court dismissed the appeal, holding that the proper construction of the Second Consortial Agreement was that Mainteck's obligations were defined by reference to the Main Contract Schedules (1A and 4), not limited by the Bill of Materials; the adoption of referee's reports by the primary judge was an exercise of discretion to which no House v The King error was shown; further, Mainteck failed to make out its disruption/global claim, as there were significant neutral causes not attributable to the respondents and no adequate basis for apportionment. Leave to amend the notice of appeal was refused due to delay and lack of explanation.

Court Disposition

Appeal dismissed; notice of motion to amend notice of appeal dismissed; orders for parties to confer or submit on costs.

Orders

  • ['Notice of motion filed 8 October 2013 dismissed.' 'Application for leave to amend notice of appeal to challenge variation directions 7 and 8 dismissed.' 'Appeal dismissed.' 'Parties to file by consent orders as to costs within 14 days or short written submissions on costs not exceeding 5 pages.']