ACN 060 559 971 Pty Ltd v O’Brien & Anor

[2007] QSC 91

Supreme Court of Queensland

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For Australian Law.

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Grounds of review
4. › Error of law
5. › Adjudicator's decision under Building and Construction Industry Payments Act 2004 (Qld)
6. › Misconstruction of building contract clause
7. › Whether adjudicator erred in construing delay costs clause
8. › Building and Construction Industry Payments Act 2004 (Qld), ss 13, 17, 21, 25, 26, 27, 99
9. › Judicial Review Act 1991 (Qld), ss 4, 30
1. Contract
2. › Building and engineering contracts
3. › Construction of particular contracts
4. › Delay and disruption costs
5. › Extension of time as pre-condition to principal's liability
6. › Whether grant of any extension of time triggered liability for all delay costs or only for delay the subject of the extension
7. › AS4300-1995 General Conditions, cl 35.5, cl 35.6, cl 36
1. Administrative Law
2. › Judicial review
3. › Building and construction industry payments legislation
4. › Valuation of work in later adjudication application
5. › Whether s 27 applies to liquidated damages deductions
6. › Whether liquidated damages claim is 'value of construction work'
7. › Building and Construction Industry Payments Act 2004 (Qld), s 27

Quick Take

Under clause 36 of AS4300-1995, the principal's liability for delay or disruption costs is limited to the delay for which extensions of time have been granted under clause 35.5(b)(i); it is not sufficient that any extension of time has been granted for delay caused by the principal. Section 27 of the Building and Construction Industry Payments Act 2004 (Qld) applies only to the valuation of construction work and does not prevent a later adjudicator from reconsidering deductions for liquidated damages. The court also indicated in obiter that damages calculated by the Hudson formula (loss of overheads and profit) may not constitute 'costs' within the meaning of clause 36.