TURNER CORPORATION LTD v CO-ORDINATED INDUSTRIES PTY LTD [1995] NSWCA 476

TURNER CORPORATION LTD v CO-ORDINATED INDUSTRIES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, SHELLER and POWELL JJA 30 May 1995, 24 July 1995 [1995] NSWCA 476

CONTRACT — COMPLETION CLAUSE EXTENSION OF TIME FOR COMPLETION OF CONTRACT — COSTS FACTS: On 1 November 1988 Turner Corporation Ltd (the contractor) and Co-ordinated Industries Pty Ltd (the principal) entered into a written contract for the erection and completion of a hotel development. Group Architects Pty Ltd was the 'superintendent' under the contract. The contract provided that the time for practical completion was 20 February 1990.

On 27 June 1991 the principal gave the contractor a notice which purported to make the principal take over the works and exclude the contractor from the works, under CL44 of the general conditions of the contract. CL44 provided that if, in the opinion of the principal, the contractor would be unable or unlikely to complete the works within the time provided or within any extended time granted by the superintendent, the principle could act as it thought fit.

CL35.4 of the contract made provision for the contractor to apply to the superintendent for an extension of time for the completion of the works, and for the superintendent to grant or refuse that extension, with or without an application having been made by the Contractor. Extensions were granted by the superintendent to the contractor until 9 March 1991.

In a summons before the trial judge, the appellant contractor claimed that the notice of 27 June 1991 was repudiatory. The appellant submitted that CL44 was expressed in the language of futurity, and that it would be an absurdity for the principal to form an opinion on 27 June 1991 that work would not be completed on or before 9 March 1991. This submission was rejected by the trial judge.