Where a building contract is discharged by a deed of novation that preserves 'accrued rights, obligations, claims or liabilities', a right to have a superintendent certify liquidated damages is not an accrued right if it requires further performance of the discharged contract (namely, the appointment and supervision of a superintendent). A recourse clause providing that security is subject to recourse 'where the principal remains unpaid after the time for payment' requires the objective fact of money being unpaid, not merely a bona fide claim. The 'risk allocation device' analysis from Fletcher Construction and Clough Engineering, which permits a principal to call on security pending dispute resolution, is relevant to interlocutory injunction applications but not to final determinations of entitlement to recourse.
The full text is available to signed-in members, including the 11 later cases that cite this judgment.
4 of the 11 citing cases carry a classified treatment. How each court treated it is available to signed-in members.