Grocon Constructors (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd

[2015] VSCA 190

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Construction of commercial contracts
3. › Meaning of 'payable'
4. › Whether 'payable' means 'paid' or 'owed or due'
5. › Objective approach to contractual interpretation
6. › Use of same and different words in same contract
1. Contract
2. › Implied terms
3. › Terms implied in fact
4. › BP Refinery test
5. › Whether term necessary to give business efficacy
6. › Whether term so obvious it goes without saying
7. › Detailed written commercial contract
8. › Whether existing express verification mechanisms preclude implication
1. Contract
2. › Inferred terms
3. › Distinction between implied and inferred terms
4. › Whether terms can be inferred in formal written contracts
5. › Hawkins v Clayton distinction between inference and implication
1. Building and Construction
2. › Building contracts
3. › Payment mechanisms
4. › Relationship between building contract and side deed
5. › Claims verification processes
6. › Whether superintendent's verification role extends to actual trade cost claims

Quick Take

The word 'payable' in a commercial contract means 'owed or due' and does not mean 'actually paid'; the adjective 'actual' qualifying 'cost' emphasises that the cost must be real and existing but does not transmute 'payable' into 'paid'. Where a side deed amends a building contract but is silent on claims verification processes, the verification mechanisms in the building contract apply to claims under the side deed. The BP Refinery conditions for implying a term cannot be satisfied where the contract already contains express verification mechanisms covering the subject matter of the proposed implied term. Terms cannot be inferred into detailed written contracts negotiated by sophisticated commercial parties where the parties have turned their minds to the relevant mechanism.