Floruit Holdings Pty Ltd & Anor v Sebastian - Builders & Developers Pty Ltd [2009] NSWCA 303

Floruit Holdings Pty Ltd & Anor v Sebastian - Builders & Developers Pty Ltd [2009] NSWCA 303

The expression 'the works' in clause 23(d) referred to the completed buildings, not to documents such as certificates. The contract did not entitle the builder to withhold the plumbing certificate pending payment. The trial judge erred in equating delivery of the certificate with taking possession of the works.

Jurisdiction
Australia
Judgment Date
28 September 2009
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed; District Court orders set aside; answer to the separate question is 'No'.
Legal Topics
['interpretation of Building Contracts' 'possession Under Standard Form Contracts' 'entitlement to Withhold Certificates']
['contract Law'] ['interpretation of Building Contracts' 'possession Under Standard Form Contracts' 'entitlement to Withhold Certificates']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether clause 23(d) of the Building Contract, when read with other provisions, entitled the builder to withhold the Plumbing Certificate' "Whether the expression 'the works' included the plumbing certificate"]

Ratio Decidendi

The expression 'the works' in clause 23(d) referred to the completed buildings, not to documents such as certificates. The contract did not entitle the builder to withhold the plumbing certificate pending payment. The trial judge erred in equating delivery of the certificate with taking possession of the works.

Court Disposition

Appeal allowed; District Court orders set aside; answer to the separate question is 'No'.

Orders

  • ['The appeal is allowed.' 'Set aside the orders of the District Court made on 9 April 2009 and the affirmative answer to the separate question.' "The answer to the separate question is 'No'." 'The parties are to agree on an appropriate costs order and file it with the Registry by no later than 8 October 2009. If not...