Structural Systems (Constructions) v Hansen Yuncken Pty Ltd [2010] FCA 1358

Structural Systems (Constructions) v Hansen Yuncken Pty Ltd [2010] FCA 1358

There is a serious question to be tried as to whether, under the contract and subsequent events, Hansen Yuncken was obligated to reduce the security by half and release part to Structural Systems upon practical completion. The balance of convenience favours continuation of an undertaking (or alternatively an injunction) to protect the applicant’s banking and commercial interests until trial. The resolution of the substantive commercial dispute must await a final hearing after agreed dispute resolution processes.

Parties
Applicant: Structural Systems (Constructions) Pty Ltd; Respondent: Hansen Yuncken Pty Ltd
Jurisdiction
Australia
Judgment Date
06 December 2010
Procedural Posture
Interlocutory Application / Interlocutory/applications for Interim Relief Prior to Trial
Outcome
Interlocutory relief granted by continuation of undertaking (by Respondent) to maintain funds; application for injunction otherwise adjourned to trial. Orders made for further affidavit evidence and hearing date set. Costs reserved.
Legal Topics
Injunction, Unconscionable Conduct, Bank Guarantees, Security for Performance, Dispute Resolution Procedures
Commercial Law Building and Construction Law Injunction Unconscionable Conduct Bank Guarantees Security for Performance Dispute Resolution Procedures

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Parties

Structural Systems (Constructions) Pty Ltd

Applicant

Hansen Yuncken Pty Ltd

Respondent

Procedural Posture

Interlocutory Application / Interlocutory/applications for Interim Relief Prior to Trial

Legal Issues

  1. 1 Whether the respondent was obligated to reduce the amount of security upon practical completion under the contract
  2. 2 Whether the respondent's call on the bank guarantees was unconscionable under s 51AA Trade Practices Act 1974 (Cth)
  3. 3 Whether non-compliance by Structural Systems with Clause 42.5A excused Hansen Yuncken from reducing the security

Ratio Decidendi

There is a serious question to be tried as to whether, under the contract and subsequent events, Hansen Yuncken was obligated to reduce the security by half and release part to Structural Systems upon practical completion. The balance of convenience favours continuation of an undertaking (or alternatively an injunction) to protect the applicant’s banking and commercial interests until trial. The resolution of the substantive commercial dispute must await a final hearing after agreed dispute resolution processes.

Court Disposition

Interlocutory relief granted by continuation of undertaking (by Respondent) to maintain funds; application for injunction otherwise adjourned to trial. Orders made for further affidavit evidence and hearing date set. Costs reserved.

Orders

  • Applicant to file and serve further affidavit material by 14 January 2011
  • Respondent to file and serve further affidavit material by 7 February 2011