GRAHAM EVANS CO PTY LTD v S P FORMWORK PTY LTD [1988] NSWCA 56

GRAHAM EVANS CO PTY LTD v S P FORMWORK PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MCHUGH and CLARKE JJA 29 April 1988, 30 August 1988

[1988] NSWCA 56

The appellant which had agreed to construct the Sydney Police Centre at Riley, Goulburn and Campbell Streets, Sydney, entered into a sub-contract with the respondent pursuant to which the latter agreed to supply and erect the formwork necessary for the construction of the building. Disputes arose between the parties to the sub contract and eventually a Deed of Settlement was successfully negotiated. Further disputes arose between the parties as to the meaning of certain clauses in the sub-contract and the Deed of Settlement. Consequently the respondent commenced arbitration proceedings during the course of which it became apparent that specific questions of law arose. Accordingly, the appellant instituted proceedings in the Building List seeking declarations as to the meaning of the covenants in question Smart J made a number of declarations and orders and an appeal was brought from three of them.

In the first instance the appellant claimed that the word contract" appearing in CL(f) of Recital L of the Deed of Settlement in a context in which the contract between the builder and owner was described as the head contract and the contract between the builder and formworker was described as the sub-contract should be construed to mean the head contract. HELD: The word "contract" referred to sub-contract.

In the second instance the question was whether claims for losses under CL28(f) of the contract could only be maintained if there had been some wrongful act by the builder.

HELD: The act of the builder leading to the sub-contractor occurring additional cost did not need to be a wrongful act before the sub-contractor could maintain a claim.