Laing O’Rourke (BMC) Pty Limited v Estate Property Holdings Pty Limited [2007] NSWSC 1199

New South Wales Supreme Court

CITATION : Laing O'Rourke (BMC) Pty Limited v Estate Property Holdings Pty Limited [2007] NSWSC 1199

HEARING DATE(S) : 22 October 2007 JUDGMENT OF : Hammerschlag J

EX TEMPORE JUDGMENT DATE : 22 October 2007

DECISION : Summons dismissed. Injunction granted by McDougall J on 9 July 2007 dissolved.

CATCHWORDS : CONTRACT - Building contract - Australian Standard AS4300 1995 - Construction of certificate provisions and provisions concerning security provided by builder for its obligations

LEGISLATION CITED :

CASES CITED : Southern Region Pty Ltd v State of Victoria (No.2) (2002) 18 BCL 211

PARTIES : Laing O'Rourke (BMC) Pty Limited (ABN 36 009 830 460) Estate Property Holdings Pty Limited (ACN 090 775 161)

FILE NUMBER(S) : SC 55053/2007

COUNSEL : S.A. Kerr (Plaintiff) M. Ashhurst SC with S O'Brien (Defendant)

Baker & McKenzie (Plaintiff) SOLICITORS : Church & Grace (Defendant)

- 15 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY AND CONSTRUCTION LIST

HAMMERSCHLAG J

22 OCTOBER 2007

55053/07 LAING O'ROURKE (BMC) PTY LIMITED v ESTATE PROPERTY HOLDINGS PTY LIMITED EX TEMPORE JUDGMENT 1 HIS HONOUR: The plaintiff, ("the Contractor"), is a builder.

2 On 15 November 2002 by project deed ("the Contract") it contracted with the defendant ("the Principal") to construct a residential development at Gosford in the State of New South Wales for a price of $41,668,474. 3 The provisions of the Contract which are relevant to the present dispute are:

a the definition in cl 2 of "Final Certificate" which is a certificate issued by the Superintendent to the Principal and to the Contractor pursuant to cl 42.7; b the definition in cl 2 of "Superintendent" which is the person stated in item 4 Annexure Part A as the Superintendent. The Superintendent stated is Estate Constructions of Australia Pty Ltd and its authorised delegate is identified as Jamin Tappouras. c