Neumann Contractors v Wyong Shire Council [2010] NSWSC 614

New South Wales Supreme Court

CITATION : Neumann Contractors v Wyong Shire Council [2010] NSWSC 614

HEARING DATE(S) : 27/4/10, 28/04/10, 29/04/10 and 03/05/10

JUDGMENT DATE : 16 June 2010

JURISDICTION : Equity Division Technology & Construction List

JUDGMENT OF : McDougall J at 1

DECISION : Defendant's cross-claim succeeds in part. Parties to bring in short minutes of order. Stand over for argument on costs.

CATCHWORDS : BUILDING AND ENGINEERING CONTRACTS – action by council to recover alleged overpayment from contractor – contract to rehabilitate and redevelop disused landfill – where specification required plaintiff to excavate to 'top of waste profile' – where council claimed that contractor over-excavated – whether contract required or permitted contractor to excavate existing fill beyond the top of waste profile if the material then at the top of waste profile met the specification requirements for cover soil – whether contract required or permitted the contractor to excavate more than 100mm below the top of waste profile if additional excavation was necessary to ensure the cover soil layer met the specification requirements – whether excavation beyond the top of waste profile required council approval – whether council gave approval – whether excavation in fact performed affected ability of site to be impact rolled – whether impact rolling should take place on 100mm cover soil – whether thickness of cover soil layer as a working surface was part of temporary works necessary for contractor to undertake as part of lump sum provided for impact rolling – whether impact rolling trial was a variation – whether importing and laying of crushed sandstone compensable under contract – appropriate rate payable – whether contract included a fixed price for piling of underground tanks – what amount was agreed to be paid for piling of underground tanks.