Wulguru Heights P/L v Merritt Cairns Constructions P/L

[1995] QCA 273

Queensland Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Construction contracts
3. › Progress payments
4. › Set-off by principal
5. › Meaning of 'money due'
6. › Whether expression includes amounts only contingently due
7. › Australian Standard General Conditions of Contract AS2124, cll 42.1, 42.2, 42.10, 46.1
1. Contract
2. › Construction contracts
3. › Progress payments
4. › Obligation to pay certified amount
5. › Whether principal may withhold payment by asserting unliquidated cross-claim for damages for delay
6. › Australian Standard General Conditions of Contract AS2124, cll 42.1, 42.2, 46.1

Quick Take

Under the AS2124 General Conditions of Contract, a Principal cannot withhold or deduct from progress payments certified by the Superintendent on the basis of disputed unliquidated claims for damages (including delay damages). The expression 'money due' in cl 42.10 does not extend to contingent liabilities where neither liability nor quantum has been determined. The Principal's remedy lies in arbitration and the arbitrator's power to order repayment with interest under cl 42.2.