Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 2] [1987] HCA 10

High Court of Australia Brennan, Deane, Dawson, Toohey and Gaudron JJ. Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 2] [1987] HCA 10

ORDER D3, D5, D7 and D8 of 1987 Appeals allowed with costs. Set aside the orders of the Court of Appeal of the Northern Territory of Australia in appeals AP7, AP9, AP11 and AP12 of 1986 and in lieu thereof order that the appeals to that Court be allowed with costs, the orders of Kearney J. be set aside and the interlocutory summonses in those proceedings be dismissed with costs. D2, D4 and D6 of 1987 Appeals allowed with costs. Set aside the orders of the Court of Appeal of the Northern Territory of Australia in appeals AP6, AP8 and AP10 of 1986 and in lieu thereof order that the appeals to that Court stand adjourned for further consideration. Order that, upon the appellant by its counsel undertaking to pay the respondent such damages or loss whether legally claimable or not as this Court or a Justice thereof may think just and fair as compensation to the respondent for any disadvantage it may sustain by reason of this order, the orders of Kearney J. cancelling the appellant's liens be stayed until those appeals come on for hearing before the Court of Appeal.

Cur. adv. vult.

The following written judgments were delivered:—

April 7 Brennan, Deane, Dawson and Toohey JJ.

The Northern Territory of Australia ("the Territory"), "a body politic under the Crown" (see the Northern Territory (Self- Government) Act 1978 Cth s. 5), entered into an agreement ("the Development Agreement") with Burgundy Royale Investments Pty. Ltd. ("Burgundy Royale") dated 17 November 1982 with respect to the construction of a complex of buildings on a parcel of land described as Lot 5335, Town of Darwin. An hotel complex and a Performing Arts Centre were to be constructed (together constituting "the Darwin Centre") and an office complex was to be added to the hotel complex. The Territory was to fund the costs of constructing the Performing Arts Centre. Tenders were to be called. Burgundy Royale was to assume full responsibility for the building contract but the Director of Public Works was given certain supervisory functions with respect to a separable part of the building contract relating to the Performing Arts Centre. In addition to the costs of constructing the Performing Arts Centre, the Territory was obliged to pay Burgundy Royale a proportion of certain other costs to be incurred in carrying out the agreement between Burgundy Royale and the Territory. It was agreed that the Territory should put Burgundy Royale in funds in advance for the expected expenditure on the construction of the Performing Arts Centre. Clause 8(c) of the Development Agreement provided: