The submissions are now in before the High Court in the appeal in Mann v Paterson Constructions. It is all about the right of a contractor to elect for a quantum meruit in the event of a repudiation of a building contract by the owner.

The established law is well known. If an owner commits a repudiatory breach of a building contract, the contractor has two elections. The first election is as to whether or not to accept that repudiation. If the contractor does so elect, the contract is at an end. The contractor then has a second election. He can either recover the portion of the contract price that he has earned, together with damages for loss of profit on the balance of the work. Or, if he prefers, he can recover a quantum meruit for the whole of the work.

The facts in the case are depressingly familiar. The owners purported to terminate the contract, on the ground, into alia, of the contractor’s delay in completing the contract, and refused to allow the contractor back onto site. It was found that the owners were not entitled to do this, and that their conduct was repudiatory. The contractor accepted that repudiation, and elected to recover on a quantum meruit basis.

The contractor succeeded in VCAT Proceedings, and on appeal before a single judge, and in the Court of Appeal of the Supreme Court of Victoria. The owners have obtained special leave to take the matter to the High Court.

Leaving aside some matters peculiar to Victoria, there are essentially two issues Continue reading →

It is suggested on the back cover of Contract and the Australian Consumer Law that it is intended to be read from cover to cover, and since I was sitting on an aeroplane for three hours on Saturday, I did just that.

It is a refreshing read by Emeritus Professor John Carter and Laina Chan about a very dull topic. The Australian Consumer Law reads as though it had been written by some demonic anarchist dreamt up by Evelyn Waugh. It is very long, and full of words that do not bear their ordinary meaning. Statutory liabilities are referred to as “guarantees” although they are nothing of the sort. “Consumers” include companies which are not consumers. A contract with a “consumer” is not necessarily a “consumer contract”. Things are defined as “warranties” when they are not even contractual terms, let alone warranties. Quite how the authors of this book managed to maintain their sanity whilst surveying this awful scene is a mystery.

But we should be grateful to them. Their gentle mockery of the legislation turns out to be rather helpful in getting to grips with it.

At 162 pages, it is a short book, and all the more useful for that. Thoroughly Continue reading →

Each jurisdiction has its own system as to how it recognises the most eminent of its barristers. Some  jurisdictions, such as England and Wales, Victoria, and Queensland appoint Queen’s Counsel or, when there is a king on the throne, King’s Counsel. The distinction is well recognised by the public by the post-nominal QC (or KC). Traditionally, QCs wear court gowns made out of silk, and hence they are colloquially known as silks.

There are those who think the system is elitist, and think it should be abolished. One difficulty with that proposal is that, unless existing QCs are stripped of their title, younger up-and-coming barristers will have no opportunity to compete on a level playing field with those existing QCs.

There are others with more Republican sympathies who dislike the nominal link with the monarchy. Thus, the South Australian Labor government in 2008 ended the practice of appointing QCs, instead allowing the Supreme Court to award the title of SC, or “Senior Counsel”. It gave the option to QCs at the time to change their post-nominal from QC to SC, but none did so except just one, Chris Kourakis, who is now the Chief Justice of South Australia.

Other States tried the same experiment, but reversed it. Those reversals have been widely welcomed. Thus, when in 2013 at Queensland reinstated the title of Queen’s Counsel, 70 of the 73 barristers who had there Continue reading →

I am pleased to be able to note a couple more successes in the Supreme Court of South Australia. The first is in Hansen Yuncken Pty Ltd & Anor v Yuanda Australia Pty Ltd & Anor [2018] SASC 158,  a judgment of Justice Lovell on 5 October 2018. I appeared on behalf of Yuanda with Diana Tang of the New South Wales bar as my junior.

It was a rather unusual adjudication challenge arising out of the new Royal Adelaide Hospital (nRAH) project. Responding to a payment claim under the Building and Construction Industry Security of Payment Act 2009 (SA) the HYLC joint venture put some but not all of its cross claim for liquidated damages in issue. In the adjudication, the adjudicator Sean O’Sullivan allowed the cross claim for the amount that had been put in issue, but no more. HYLC then asked the adjudicator to correct his adjudication under the slip rule, to take account of all of its LD claims. Unsurprisingly, the adjudicator refused to do this and HYLC then made an application to the court for judicial review, not of the adjudication decision itself, but of the adjudicator’s refusal to apply the slip rule.

This was a novel approach which failed at every hurdle, the court finding:

• there was no jurisdictional basis for the challenge;
• in any event, there was no slip; and
• the adjudicator had not acted unreasonably.

The second decision was in the same matter. The very next day, Justice Lovell gave an ex tempore judgment dismissing HYLC’s application for a stay pending the results of the arbitration, now afoot, of the underlying disputes. The dismissal of that stay application appears to have been a conventional application of the relevant principles, and in particular an application of the “pay now, argue later” policy of the legislation.

HYLC then made an alternative application for a stay pending appeal. Justice Lovell rejected that application as well, but allowed Continue reading →