23 Nov 2023
Sky Buildings Limited failed to comply with the statutory demand and produced no evidence to rebut the statutory presumption of inability to pay; the Court therefore had jurisdiction under s 241(4) and, exercising its residual discretion, ordered Sky into liquidation and appointed liquidators because permitting an apparently insolvent company to continue trading would risk creditors.
26 Sept 2023
The Partnership was contractually obliged (expressly and by implication) to place fill meeting the Addendum Specifications and to exercise reasonable skill and care; the Partnership conceded it placed non-compliant fill and the factual and expert evidence established breach; SPC is entitled to recover remediation costs, liquidated damages that were reasonably foreseeable and reasonable legal fees, and there was no failure by SPC to mitigate its loss.
21 Dec 2022
Summary judgment was declined because the defendants demonstrated reasonably arguable defences: ambiguity and genuine dispute as to rent calculation (including whether the 8% GOC wash-up for the period to lease cancellation yields nil rent), reasonably arguable defences to liquidated damages given Covid-19 restrictions, landlord communications and proportionality/penalty concerns, and uncertainty as to the correct 12‑month period for the guarantor cap—all issues requiring full hearing and factual inquiry.
8 Dec 2022
Leave to appeal was dismissed because the applicant failed to demonstrate strongly arguable questions of law; the arbitrator's determinations on extension of time, entitlement to variations and P&G thickening were factual findings open to the arbitrator and did not disclose errors of law meeting the statutory threshold for leave under Schedule 2 cl 5 of the Arbitration Act 1996.
21 Sept 2020
Special leave was dismissed because the High Court conducted its own independent assessment of contract interpretation so any different standard of review would not change the outcome; the contested issues are matters of contractual interpretation unsuited to a second appeal and the finality of arbitral awards outweighs the parties' interest in further litigation.
10 Sept 2020
The Court held that there was a genuine and substantial dispute as to the interpretation of clause 1.16 of the subcontract concerning when the retention sum fell due (meaning of 'all outstanding requirements' and the trigger date for release). Because that threshold was met the statutory demand was set aside.
5 Aug 2020
Schedule 44 did not substantially comply with s 21(3) of the Construction Contracts Act 2002 because the Variations and Contra Charges sections failed to indicate the manner of calculation and reasons for significant deductions (notably new multi-million dollar contra charges and delay claims lacking specific breakdown or identifiable document references); taken as a whole Schedule 44 was invalid, therefore no valid payment schedule was provided, Fletcher remained liable to pay the claimed amount and Spotless was entitled to serve notice of intention to suspend and to suspend works; Fletcher'…
5 Jun 2020
The indemnity clause in the Collateral Deed is not an unenforceable penalty because, properly construed, it was confined to indemnifying payment obligations (rent and outgoings) for the initial lease term and its consequences were not out of all proportion (not exorbitant) to Honey Bees' legitimate interest in securing installation of a second lift and protecting the commercial viability of the preschool; the proportionality test does not require mandatory calculation of common law damages in every case.
17 Mar 2020
The Court concluded that despite weak and partially uncorroborated evidence, BRL had raised a genuine dispute about whether BASF's Glasurit paint was of merchantable quality and whether BRL was liable for the liquidated damages claimed; therefore the statutory demand was set aside and the dispute must be determined at trial.
23 Oct 2019
The court affirmed the Arbitrator's construction that the UHT Agreement's liquidated damages provisions applied only to the expressly identified scenarios (first season and peak months) and did not displace the ordinary common law remedy for whole-season shortfalls where the contract was silent; on the facts MNZ's failure to comply with the notification regime caused the seasonal shortfalls and Miraka's obligation was thereby excused or reduced to best endeavours as to orders, so Miraka was entitled to damages for Seasons Two and Three; however the Arbitrator erred in law to the extent he awa…