The still new Court of Appeal in South Australia has handed down its judgment in Bedrock Construction and Development v Crea [2021] SASCA 66. In short, it was a win for the contractor.

The short story is that the contract contained a defects liability provision. The Court of Appeal adopted (at least in part) the authority in Turner Corporation v Austotel (1994) 13 BCL 378 and Britannia v Parkline [2009] NSWSC 1302 to the effect that:

• the standard clause obliging the contractor to carry out rectification work notified to it by the architect carried with it, as a matter of implication, an entitlement to carry out that work and that
• if the owner denies the contractor the opportunity to rectify, then the owner loses his right to claim damages in respect of those defects.

The idea, perhaps somewhat harsh on owners, and contrary to English High Court authority[1], is that the defects liability arrangement constitutes a complete code dealing with the contractor’s liability for such defects, and there is no room for an additional common law right to recover damages.

Unhappily, however, the Court of Appeal’s decision fails to give us a satisfactory or definitive answer in this interesting area of the law.

The decision says nothing about Continue reading →