A-Civil Aust Pty Ltd v MESO Solutions Pty Ltd

The Court held that where a subcontract liquidated damages clause provided for $1,000 per day 'until the Subcontractor achieves Substantial Completion … or the date that the Agreement is terminated' and neither end point occurred, the contractor's accrued right to liquidated damages was not dissolved, following Triple Point Technology. On the construction of back-to-back payment obligations, the Court held that where cl 17.4(b) provided payments to the subcontractor were 'on account only' but adjacent cl 17.4(c) imposed an unqualified obligation on the subcontractor to pay amounts due under a payment schedule within five business days, the deliberate contrast meant payments by the subcontractor were not provisional. The Court also held that an informal agreement to 'walk away' between head contractor and contractor did not extinguish the subcontractor's indemnity obligations, as the appropriate remedy was declaratory relief that the subcontractor must indemnify the contractor if the head contractor later enforces its claims, but the scope of indemnity required establishing that each back-charge arose from the subcontractor's breach, negligence, act or omission.