This proceeding concerned the construction of a hotel in Brisbane. The Plaintiff (contractor) brought proceedings against the Defendant (principal) seeking AUD 6,567,108.09, primarily in relation to a single alleged variation which was said to have arisen by reason of defective work notices issued by the Defendant. The alleged variation was said to give rise to an entitlement to an extension of time and delay damages. The Defendant brought a counterclaim seeking AUD 1,341,181.12 for alleged defective work and additional liquidated damages.
Williams J held that, on the proper construction of the contract, the defective work notices did not constitute a variation to the contract. Her Honour held that, even if they did, on the proper construction of the contract, the Defendant was not entitled to an extension of time and had not proved an entitlement to delay damages. Williams J ultimately awarded AUD 182,088.18 to the Plaintiff on its claim (in respect of other claims) and AUD 742,394.39 to the Defendant on its counterclaim.
This decision will be of particular interest to construction law practitioners. Her Honour’s decision canvasses (amongst other things) the proper principles of contractual construction (including the use of extrinsic evidence), the use of prospective and retrospective delay analyses and proving delay damages arising from critical delay.
Jason Mitchenson (led by Tom Sullivan QC) appeared for the successful Defendant, instructed by Thomson Geer.
The judgment is published here.