Commissioner for Main Roads v Reed & Stuart Pty Ltd [1974] HCA 53

High Court of Australia Gibbs, Stephen and Mason JJ. Commissioner for Main Roads v Reed & Stuart Pty Ltd [1974] HCA 53

ORDER Appeal dismissed with costs. Order of the Supreme Court of New South Wales (Common Law Division) varied by inserting in lieu of par. 1 thereof the following declaration:

1. That on the true construction of the contract comprised in the documents referred to in the affidavit of John Ingram Muirhead sworn 9th November 1973 and filed herein, and in the events which have happened, the defendant was in breach of the said contract by failing to give a direction to the plaintiff Reed & Stuart Pty. Ltd. pursuant to the fourth paragraph of cl. B3.03 of the specification being one of the plaintiff's exhibits herein.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 29 Gibbs J.

I have had the advantage of reading the reasons for judgment prepared by my brother Stephen and, with the reservations which I am about to state, am in agreement with them.

For my own part I should not have thought it necessary to vary the declaration made by Taylor J. As my brother Stephen has shown, the first respondent was entitled under the contract to place all the topsoil as shown in the contract drawings, unless the engineer required the omission of any of that work under cl. 18 of the general conditions. In the absence of a requirement by the engineer under cl. 18, it was a breach of the contract for the appellant to render it impossible for the respondent to do the work. The appellant did render it impossible for the respondent to do the work, and thereby committed a breach, by getting someone else to do the work and also by failing to give the direction under cl. B3.03 of the specification without which the respondent could not do the work. The declaration made by Taylor J. and that suggested by my brother Stephen describe in alternative ways what in my opinion amounts to one breach, but nothing, I would think, turns on this difference of form.