Eden Co Construction Pty Ltd v Leed Engineering and Construction Pty Ltd [2018] NSWSC 1882

Supreme Court New South Wales

Medium Neutral Citation: Eden Co Construction Pty Ltd v Leed Engineering and Construction Pty Ltd [2018] NSWSC 1882 Hearing dates: 5 December 2018 Date of orders: 12 December 2018 Decision date: 12 December 2018 Jurisdiction: Common Law Before: Fagan J Decision: (1) Leave to appeal is granted so far as is necessary. (2) The summons is dismissed. (3) The plaintiff is to pay the defendant's costs of the summons. (4) I grant liberty to the Defendant to file an application for indemnity costs by Friday 14 December 2018. (5) The plaintiff to file any evidence in reply by 21 December 2018. Catchwords: CONTRACTS - termination - breach of term - summons seeking leave to appeal judgment for defendant in the Local Court - plaintiff engaged as subcontractor to undertake construction work - where clause of contact provided for procedure to terminate upon breach, including three-day notice period to allow for rectification of breach - plaintiff did not comply with safety policy and directions - where defendant terminated under common law - whether observance of safety policy essential condition or intermediate term - whether clause stipulating procedure for termination excluded common law right to terminate - summons dismissed Legislation Cited: Local Court Act 2007 (NSW) Cases Cited: Concut Pty Ltd v Worrell [2000] HCA 64 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited (2007) 233 CLR 115;[2007] HCA 61 Stocznia Gdanska SA v Latvian Shipping Co [1998] 1 WLR 574 Tan Hung Nguyen v Luxury Design Homes Pty Ltd [2004] NSWCA 178 Category: Principal judgment Parties: Eden Co Construction Pty Ltd (plaintiff) Leed Engineering and Construction Pty Ltd (defendant Representation: Counsel: J Cameron solicitor (plaintiff) R Perla (defendant)