Griffin Energy Pty Ltd v Western Power Corporation [2006] FCA 1241

This case relates to Western Power Corporation’s (WPC) Power Procurement Process (PPP) which took place during 2002 to 2005 for the procurement of 300MW to 330MW of new generation capacity. During the course of the PPP, 4 parties tendered to build the new power station, one of which was the Applicant, Griffin Energy Pty Ltd. Ultimately, the tender was awarded to another party, namely Wambo Power Ventures Pty Ltd.

Griffin brought an application against WPC pursuant to Order 15A of the Federal Court Rules for access to documents relating to the winning bid from Wambo. The grounds of the Application were that Griffin asserted that it required the documents to enable it to have sufficient information to determine whether to commence proceedings against WPC for misleading and deceptive conduct and/or for breach of contract.

Case Note

Bitannia Pty Ltd & Anor v Parkline Constructions Pty Ltd [2006] NSWCA 238

The NSW Court of Appeal has found that a party subject to a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) may raise a defence under the Trade Practices Act 1974 (Cth) (TPA) including for misleading and deceptive conduct. Further, it found that a claimant is not required to have a bona fide belief in its entitlement to money claimed under a payment claim, rather it is the responsibility of the adjudicator to assess the merit of the claim. This New South Wales decision on SOPA also forms considerable weight for other jurisdictions applying the substantially identical provisions of their security of payment legislation.

The case has the following implications:

• Principals may now be able to raise misleading and deceptive conduct, other TPA or possibly any commonwealth law breaches by a contractor as a defence to payment claims under security of payment legislation
• Contractors may claim for any amount of money in a payment claim under SOPA, without the belief that they are entitled to that money.

Case Note

David Jones Ltd v Perpetual Limited & Anor [2006] QSC 337

In David Jones Ltd v Perpetual Ltd and Anor [2006] QSC 337 the Supreme Court of Queensland held the developers’ proposed design changes to the Queens Plaza store were not generally in accordance with the Agreement for Lease.

Relying on sound retail design principles as well as the expert evidence that the proposed changes would have a material adverse impact on the utility and quality of David Jones’ flagship store, the Court held that the proposed changes were in breach of the Agreement. Justice Muir considered the departures from the plan were substantial in physical terms and degraded the quality of the store. His Honour held that ‘it is tolerably plain that the contractual intention did not contemplate that such changes would be generally in accordance with the Master Plan’.

Case Note

Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd, HCNZ, CIV-2005-404-6800

In Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd (Downer Construction) Justice Harrison considered whether an arbitrator erred in ordering a contractor to specifically perform its warranty to construct watertight dwellings by repairing defective workmanship.

In the course of his judgment, Justice Harrison rejected the proposition, based on Lord Justice Romer’s statements in Wolverhampton Corporation v Emmons [1901] 1 QB 515 at 524-525 (Wolverhampton), that specific performance of building contracts should only be awarded in truly exceptional circumstances.

His Honour thereby recognised and affirmed the flexibility and adaptability of the remedy of specific performance as a tool to achieve the ends of equity, namely ‘to do more perfect justice’ between the parties than leaving them to their common law remedies.

Justice Harrison also affirmed that an order for specific performance of a warranty to remedy construction defects is sufficiently specific and precise when its terms enable a court or arbitrator to satisfy itself, once the work is complete, that the covenanted work has been done.

Case Note