EDE Excavations Pty Ltd v Lake Macquarie City Council [2008] NSWDC 281

New South Wales District Court

CITATION: EDE Excavations Pty Ltd v Lake Macquarie City Council [2008] NSWDC 281

HEARING DATE(S): 5-6 November 2008

JUDGMENT DATE: 14 November 2008

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: On liability only : Found against Defendant.

CATCHWORDS: CONTRACT - wrongful termination - repudiation - failure to follow process provided in contract - obligations of good faith and fair dealing

CASES CITED: Burger King Corporation v Hungry Jacks Pty Limited (2001) 69 NSWLR 558

PARTIES: EDE Excavations Pty Ltd - (Plaintiff) Lake Macquarie City Council - (Defendant)

FILE NUMBER(S): Newcastle 236/07

COUNSEL: A M Slevin - (Plaintiff) P R Cummings - (Defendant)

SOLICITORS: Slater & Gordon - (Plaintiff) Grant W Long - (Defendant)

JUDGMENT

1 EDE Excavations Pty Limited on 20 May 2006 submitted a tender to Lake Macquarie City Council to supply services by way of what was described as a standing offer. The services related to the provision and operation of a bobcat at rates specified in the tender. The Council accepted the tender, with the result that a contract came into effect on the terms that were attached to the tender document. The contract was for a term of 12 months from July 2006 and operated on the basis that the plaintiff was notified the day before its services were required. Its bobcat was then taken to a nominated site and operated for a required period.

2 Claims for the work undertaken were submitted in the form of a documented headed Contractor Timesheet. This document was referred to in evidence as a timesheet.

3 The sole principal of the plaintiff was Mr Clynch. It was Mr Clynch's practice to submit timesheets weekly. The proceedings involved two such timesheets, one for the week ending 25 November 2006 and the other for the week ending 2 December 2006. The timesheets contained the following under the heading Authority: I/we certify that this supply has been rendered or delivered according to order or tender and has been supplied in good order and condition.