The Trustees of the Roman Catholic Church for the Diocese of Sydney v Hughes Bros Pty Ltd & Ors [2000] NSWCA 296

New South Wales Court of Appeal

CITATION : The Trustees of the Roman Catholic Church for the Diocese of Sydney v Hughes Bros Pty Ltd & Ors [2000] NSWCA 296 FILE NUMBER(S) : CA 41072/98 HEARING DATE(S) : 13 July 2000 JUDGMENT DATE : 27 October 2000

PARTIES : The Trustees of the Roman Catholic Church for the Diocese of Sydney v Hughes Bros Pty Ltd, Kevin J Curtin & Partners (Architects) Pty Ltd, Morrison Whitten & Nicey Pty Ltd JUDGMENT OF : Priestley JA at 1; Sheller JA at 55; Stein JA at 56

LOWER COURT JURISDICTION : Supreme Court LOWER COURT CLD 55003/89 FILE NUMBER(S) : LOWER COURT Rolfe J JUDICIAL OFFICER :

Appellant - B. Oslington QC, C. Stevens QC COUNSEL : Respondent 1 - D.F. Jackson QC, F. Corsaro Respondent 2 - G. Ellis Respondent 3 - M.S. White Appellant - Makinson & d'Apice SOLICITORS : Respondent 1 - Clayton Utz Respondent 2 - Colin Biggers & Paisley Respondent 3 - Phillips Fox CATCHWORDS : Building contract - interpretation - estoppel CASES CITED: Hughes Bros v Trustees Roman Catholic Church (1993) 31 NSWLR 91 DECISION : Appeals dismissed with costs - see par 54.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41072/98 CLD 12889/89

PRIESTLEY JA SHELLER JA STEIN JA

Friday, 27 October 2000

THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY v HUGHES BROS PTY LIMITED & ORS

BUILDING CONTRACT - INTERPRETATION - ESTOPPEL. Principal in building contract exercises power under contract to exclude contractor from site, complete the works and charge the contractor for any " difference " in total cost - litigation decides principal's exercise of power valid - in later litigation contractor succeeds in establishing principal in various breaches of contract at time when exclusion etc power exercised - principal in cross action establishes entitlement to and amount of " difference " - question in appeal whether contractor could recover amount of " difference " as part of its damages - Held : as a matter of construction, contractor not disentitled by any contractual provision from showing that its liability to pay " difference " was relevantly caused by principal's breaches, and there was no basis for interfering with conclusion below that it had done so; further, the way in which the litigation about the validity of the exclusion was conducted meant that the contractor was not estopped from claiming the amount of the " difference " as part of its damages. Hughes Bros v Trustees Roman Catholic Church (1993) 31 NSWLR 91.