Advanced Constructions Pty Ltd v Lainson Holdings Pty Ltd [2019] NSWSC 1484

Supreme Court New South Wales

Medium Neutral Citation: Advanced Constructions Pty Ltd v Lainson Holdings Pty Ltd [2019] NSWSC 1484 Hearing dates: 22 July 2019 Date of orders: 22 July 2019 Decision date: 22 July 2019 Jurisdiction: Equity - Technology and Construction List Before: Rein J Decision: 1. The Defendant is restrained from calling upon either of the Bank Guarantees and they are to be delivered up forthwith to the Plaintiff. 2. A declaration that the Plaintiff was entitled as at 20 March 2019 to return of any security given by the Plaintiff to the Defendant, including any instruments replacing that security. 3. The Defendant to pay the Plaintiff's costs of the proceedings. Catchwords: CONTRACTS – Termination – Consequences of termination – Where the plaintiff seeks return of two bank guarantees given to the defendant pursuant to a contract related to a building project since abandoned – Where, on the plaintiff's case, the contract between the parties had been validly terminated for insolvency and, although the contract did not explicitly require return of the bank guarantees, the defendant can demonstrate no right to retain them – Defendant disputes that the contract was validly terminated due to the plaintiff's alleged non-compliance with notice provisions – Where, in any case, the contract has clearly been frustrated and cannot be performed due to the land having been sold, with the consequence that the bank guarantees should be returned. Legislation Cited: Nil Cases Cited: Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 J. Lauritzen AS v Wijsmuller BV [1990] 1 Lloyd's Rep 1 Joseph Constantine SS Line Ltd v Imperial Smelting Corporation Ltd [1942] AC 154 Texts Cited: J. W. Carter, Contract Law in Australia (LexisNexis Butterworths, 7th ed, 2018) John Dorter and John Sharkey, Building and Construction Contracts in Australia (Thomson Reuters, loose-leaf, 2019) Category: Principal judgment Parties: Advanced Constructions Pty Ltd (Plaintiff) Lainson Holdings Pty Ltd (Defendant) Representation: Counsel: Mr I. G. Roberts SC (Plaintiff) Mr J. Adamopoulos (Plaintiff) File Number(s): 2018/390417 Publication restriction: Nil