FPM Constructions P/L v. The Council of the City of Blue Mountains [2003] NSWSC 201

New South Wales Supreme Court

CITATION : FPM Constructions P/L v. The Council of the City of Blue Mountains [2003] NSWSC 201 HEARING DATE(S) : 07/03/03; 11 & 12/03/03 JUDGMENT DATE : 26 March 2003 JURISDICTION: Equity JUDGMENT OF : Bryson J at 1 DECISION : See [28]

CATCHWORDS : Building and Engineering Contracts- construction- remuneration- Preliminaries-AS4300-1995 cl.42,cl.47-lump sum contract incorporated cl.42 Certificates and Payments- Contractor made Payment Claim including part of lump sum allocated to Preliminaries on time basis being proportion of time passed to whole time available- Superintendent allowed on percentage-of-works completed basis - Contractor disputed Certificate, gave notice of dispute and claimed urgent Declaratory Order establishing that time-basis was correct- Contractor contended that time basis was impliedly required because Tender Cash Flow submitted with Tender and incorporated in Contract projected even flow of sums allowed for Preliminaries- no clear identification in Contract of what work was Preliminaries: Held: time basis was not required by express or implied terms and Declaratory Order as sought should not be made - percentage of works completed basis adopted by Superintendent may not be correct and Court would give consideration to further claims - reasons for interlocutory rulings on stay of proceedings, summary disposal, security for costs. LEGISLATION CITED : Commercial Arbitration Act 1984 Supreme Court Act 1970 CASES CITED : Codelfa Constructions Pty Ltd v. State Rail Authority of New South Wales (1982) 149 CLR 337 Schenker & Co. v. Maples Equipment [1990] VR 834 PARTIES : FPM Constructions Pty Ltd - Plaintiff The Council of the City of the Blue Mountains FILE NUMBER(S) : SC 1618/2003 COUNSEL : G. McVay - P M. Ashhurst - D SOLICITORS : James A. Moustacas & Co. - P Phillip Fox Lawyers - D