THIESS CONTRACTORS PTY LTD; THYSSEN MINING CONTRACTORS OF AUSTRALIA PTY LTD v GROGAN [1996] NSWCA 526

THIESS CONTRACTORS PTY LTD and ANOR (T/AS THIESS THYSSEN NORTH SHORE TUNNELS JOINT VENTURE v PETER GROGAN (T/AS P GROGAN AND CO)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, PRIESTLEY and SHELLER JJA 11 December 1995, 24 July 1996 [1996] NSWCA 526

Building Contract — Sub-contract "terminated" by head contractor — Whether breaches of sub-contract warranted termination of sub-contract: Termination of sub-contract not justified — Calculation of damages for termination

APPEAL from Common Law Division, Construction List — Building Contract — Sub-Contract — Sub-contract "terminated" by Head Contractor — Whether breaches of sub-contract warranted termination of sub-contract — Whether termination to be construed as merely exercising contractual power to remove sub-contractor from site — Held: Termination of sub-contract not justified.

Calculation of damages for termination of sub-contract — Profits earned by sub-contractor after removal from site — Whether assumptions may be made by arbitrator or judge in relation to profit content of work done.

ORDER Appeal dismissed with costs.

Mahoney P This appeal gives rise to questions of law and questions of fact of some difficulty and complication. The proceedings between the parties have had a long history; they have been before four judges and a referee. Mr Hutley, for the appellants, has sought to reduce the statement of the appeal to its essentials. However, as experience has shown, the issues for determination and the conclusions arrived at by the Court are liable to misunderstanding. That could occur, a fortiori, in this proceeding. Accordingly, at the risk of further burdening the proceedings with a detailed judgment it is, I think, prudent to record at least the essentials of what has taken place, the issues raised for argument, and the conclusions which I have reached.