Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (formerly SC Land Richmond Pty Ltd) & Ors [2012] VSC 99 (30 March 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/99.html

CONTRACT – building engineering and related contracts – principal served notices to show cause for substantial breach on contractor– whether substantial breach of obligation under cl 30.1 to use the standard of materials or provide the standards of workmanship required by the contract – whether substantial breach of obligation under cl 30.3 to comply with superintendent’s directions – whether substantial breach of obligation under cl 33.1 to proceed with the work with due expedition and without delay – whether notices invalid because defective in content or form, wanting particulars, or being prolix and confusing – general conditions of contract AS 2124–1992, clauses 30, 33, 44.

CONTRACT – building engineering and related contracts – content of the contractual requirement of cl 33 to proceed with the works with due expedition and without delay – obligation to work to approved construction program – whether grounds for unapproved extensions of time relevant – general conditions of contract AS 2124–1992, clauses 33, 35.

CONTRACT – building engineering and related contracts – whether principal obliged to act reasonably in serving show cause notices – whether contractor failed to show reasonable cause why principal should not exercise a right under cl 44.4 to take the work remaining to be completed out of the hands of the contractor – principal’s obligations when evaluating response of contractor to a show cause notice – whether principal obliged to act reasonably in serving notice to take the works out of the hands of the contractor – general conditions of contract AS 2124–1992, cl 44.

CONTRACT – building engineering and related contracts – principal serves notices to take the works out of the hands of the contractor – whether principal repudiated contract.

CONTRACT – building engineering and related contracts – principal takes the works out of the hands of the contractor – principal completes the project works to an enhanced scope of works – principal served on contractor a costs to complete certificate – whether cost to complete certified a cost of the works provided for under the contract – whether costs to complete certificate final and binding or reviewable for error – whether principal entitled to common law damages in addition to debt due under certificate – where no claim made for liquidated damages – entitlement of principal to delay damages at common law – general conditions of contract AS 2124–1992, cl 44.

EVIDENCE – admissibility – opinion evidence – exception under s 79 – requirements for admissibility – Evidence Act 2008 (Vic) ss 55, 56, 76, 79.

PRACTICE AND PROCEDURE – expert evidence taken by concurrent evidence sessions following joint conclaves – late objection to admissibility of expert evidence – conditional admission of evidence – ruling reserved to judgment – whether good reason to defer ruling – circumstances include pre-trial case management of large proceeding by trial judge directed to preparation of expert evidence by concurrent evidence sessions following joint conclaves – Civil Procedure Act 2010 ss 8, 9, 49 – Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 Order 3 Chapter II (Technology Engineering and Construction Cases) (TEC Rules) – Practice Note No. 2 of 2009 The Technology Engineering and Construction List.