Boss Constructions (NSW) Pty Ltd v Rohrig (NSW) Pty Ltd [2019] NSWSC 374

Supreme Court New South Wales

Medium Neutral Citation: Boss Constructions (NSW) Pty Ltd v Rohrig (NSW) Pty Ltd [2019] NSWSC 374 Hearing dates: 18, 19, 20, 21 March 2019 Decision date: 05 April 2019 Jurisdiction: Equity - Technology and Construction List Before: Hammerschlag J Decision: Claim and Cross-Claim dismissed Catchwords: BUILDING AND CONSTRUCTION – CONTRACT – where each party sues for damages for breach of contract – where each asserts a different contract – HELD: no contract established by either Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Cases Cited: Empirnall Holdings Pty Limited v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 at 534 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 Franklins Pty Limited v Metcash Trading Ltd [2009] NSWCA 407 McMahon's (Transport) Pty Ltd v Ebbage [1995] 1 Qd R 185 Category: Principal judgment Parties: Boss Constructions (NSW) Pty Ltd – First Plaintiff/Cross-Defendant Nicholas Bobos – Second Plaintiff Rohrig (NSW) Pty Ltd – Defendant/Cross-Claimant Representation: Counsel: N Bobos – Director of First Plaintiff/Cross-Defendant, with leave, and for himself M A Ashhurst SC and L D Corbett – Defendant/ Cross‑Claimant

Solicitors: BCP Lawyers & Consultants – Defendant/ Cross‑Claimant File Number(s): 2018/289865

Judgment

Introduction 1. HIS HONOUR: The first plaintiff, Boss Constructions Pty Ltd (Boss), is an engineering and construction company. In its dealings with the defendant builder, Rohrig (NSW) Pty Ltd (Rohrig), Boss was represented principally by its director Mr Nicholas Bobos. Mr Bobos appeared, with leave, for Boss at the hearing. Mr Bobos is joined as second plaintiff but has no claim. Rohrig was principally represented in its dealings with Boss by Anthony Marco, a project manager. At the hearing, Rohrig was represented by Mr M A Ashhurst SC and Mr L Corbett of counsel. 2. Rohrig had the head contract from Penrith Anglican College to design and construct a performing arts centre at Wentworth Rd, Orchard Hills, NSW. The project comprised a central and north section, a west section, and an east section. The works included fabrication and supply of structural steel. Boss does structural steel work. Rohrig invited Boss to tender for that fabrication and supply. Rohrig also invited an organisation called Allarc to tender, but Rohrig decided to go with Boss. 3. There then ensued a lengthy course of dealings between the parties. Various versions of proposed contracts were exchanged, but no version was executed by both of them. They had meetings to discuss the terms of a contract, but the discussions were inconclusive. Boss took some steps to have the steel fabricated and rendered some invoices which Rohrig paid. Boss made a number of claims for alleged variations. Rohrig agreed to some of these, but not to all of them. The parties then fell into dispute. Rohrig alleged that Boss was not performing. Boss complained that it was not being paid amounts to which it was entitled. Boss said it would not perform if its variations were not agreed to and paid. 4. On 25 June 2018, Boss made Payment Claim no 6 against Rohrig under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) for $63,358.08 including GST. The claim included a variation of over $17,000 for additional drafting. 5. On 25 July 2018, Boss made Payment Claim no 7 under the Act against Rohrig for $271,209.46 including GST. Included in this claim was over $170,000 for variations. This Payment Claim comprehended the amount claimed in Payment Claim no 6. 6. On 2 August 2018, Boss gave notice to Rohrig that since Rohrig had not paid Payment Claim no 6, Boss was, pursuant to s 27 of the Act, [1] going to suspend work after two business days, unless in the meantime the amount due was paid in full. There is evidence that Boss actually suspended work some time in July. 7. On 13 August 2018, Rohrig gave Boss a notice of termination of contract, relying on grounds which included breach by Boss. 8. Payment Claim no 7 went to adjudication under the Act. By adjudication determination made on 14 September 2018, Boss was awarded $74,217, which Rohrig paid. The award included various amounts covered by Boss' variation claims. 9. Each now sues the other for breach of what they assert was the contract between them. It is common cause that any contract which may have been entered into between them is no longer on foot. 10. For the reasons which follow, they both fail because, despite lengthy commercial dealings between them, no binding contract was concluded.