St Hilliers Construction Pty Ltd v Fitzpatrick Investments Pty Ltd [2013] NSWCA 104

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: St Hilliers Construction Pty Ltd v Fitzpatrick Investments Pty Ltd [2013] NSWCA 104 Hearing dates: 2 April 2013 Decision date: 09 May 2013 Before: Meagher JA at [1] Emmett JA at [2] Sackville AJA at [45] Decision: The Court: 1.Orders that the appeal be allowed. 2.Orders that the orders made by Hammerschlag J on 2 July 2012 be set aside and the following orders be made in lieu thereof: (i) The Court declares that, as at 21 March 2012, the defendant's entitlement to security under the contract was reduced to 50 per cent of the security provided by the plaintiff. (ii) The Court orders that the defendant return bank guarantee number M07140-2 in the sum of $941,748.90 issued by National Australia Bank Limited on 17 November 2008. (iii) The Court orders that the defendant pay interest on the sum secured by the bank guarantee at the rate prescribed by the Court, calculated from 21 March 2012. (iv) The Court orders that the defendant pay the plaintiff's costs of the proceeding. 3.Orders that the respondent pay the appellant's costs of the appeal. 4.Directs that the parties make any written submissions as to costs of the proceeding at first instance no later than 16 May 2013. 5.Orders that order (iv) of the orders made in lieu of the orders of the primary judge, set out in order 2 above, be conditional upon no written submissions being filed in accordance with order 4. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: BUILDING AND CONSTRUCTION - where contract required contractor to provide bank guarantees as security for performance - where contractor entitled to reduction of security if conditions fulfilled - whether conditions satisfied Cases Cited: McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 Wilkie v Gordian Runoff Ltd [2005] HCA 17; 221 CLR 522 Category: Principal judgment Parties: St Hilliers Construction Pty Ltd (under Deed of Company Arrangement) (Appellant) Fitzpatrick Investments Pty Ltd (Respondent) Representation: Counsel: D T Miller SC/Ms N Shaw (Appellant) M G Rudge SC/B C A Bradley (Respondent) Solicitors: Colin Biggers & Paisley (Appellant) Clark McNamara Lawyers (Respondent) File Number(s): CA 2012/234689 Decision under appeal Citation: [2012] NSWSC 804 Date of Decision: 2012-07-02 00:00:00 Before: Hammerschlag J File Number(s): 12/234689