State Concrete (NSW) Pty Ltd v Elpara Pty Ltd [2005] NSWSC 1008

New South Wales Supreme Court

CITATION : State Concrete (NSW) Pty Ltd v Elpara Pty Ltd [2005] NSWSC 1008

HEARING DATE(S) : 27 September 2005

JUDGMENT DATE : 27 September 2005

Equity Division JURISDICTION : Technology & Construction List

JUDGMENT OF : Palmer J

DECISION : Application to strike out Defence to Cross Claim dismissed.

CATCHWORDS : STRIKE OUT - BUILDING CONTRACT - CONSTRUCTION - Whether arguable case that contract not an "entire contract".

CASES CITED : Nguyen v Luxury Design Homes Pty Limited [2004] NSWCA 178

State Concrete (NSW) Pty Ltd - Plaintiff/Cross Defendant PARTIES : Elpara Pty Ltd - Defendant/Cross Claimant

FILE NUMBER(S) : SC 55037/05

D.J. Catts - Plaintiff/Cross Defendant COUNSEL : D. Smallbone - Defendant/Cross Claimant

Summit Law - Plaintiff/Cross Defendant SOLICITORS : Birch Partners - Defendant/Cross Claimant

LOWER COURT JURISDICTION :

Ex tempore

1 The Defendant/Cross Claimant seeks to strike out the Defence to the Cross Claim in these proceedings on the basis that the essential position of the Cross Defendant is so demonstrably unarguable as to justify the Defence being struck out at this stage rather than proceeding to trial. Of course, the hurdle that an applicant in a strike out application has to surmount in order to succeed is an extremely high one. One has to show that the case as pleaded is so clearly unarguable as not to warrant the case proceeding to trial. 2 The essential question which requires resolution for the purposes of the strike out application is whether there is a sufficiently arguable case to be made by the Defendant to the Cross Claim that the building contract, the subject of these proceedings, is not an entire contract, as that concept is understood in law: i.e., if the builder does not complete the work in accordance with the contract, is the builder entitled to be paid nothing, or is this a contract under which the builder is entitled to payment for such work as was done prior termination by the owner? 3 Mr Smallbone of Counsel, who appears for the Defendant/Cross Claimant, urges that the Defence sought to be put forward by the Cross Defendant that the contract is not an entire contract is unarguable and he relies upon the decision of the Court of Appeal in Nguyen v Luxury Design Homes Pty Limited [2004] NSWCA 178. 4 In that case there was a contract in which clause 24 provided for what was to happen upon the termination of the building contract due to the fault of the contractor. The clause is very similar to the clause in the present contract, which is clause 26. However, Mr Smallbone points to a dissimilarity in wording between clause 26 of the present contract and clause 24 of the contract in the Luxury Design Homes case. He says that in the present case clause 26(a) provides that if specified occurrences happen: "… THEN the Owner may, without prejudice to any other rights or remedies, by notice by registered mail, determine the employment of the Builder under this Contract. …"