Brooking on building contracts

809 Pages·2013·5.141 MB·English

by  Michael H. Whitten, Damien J. Cremean, Michael F. Sharkey

BROOKING ON BUILDING
CONTRACTS
Fifth edition
The law and practice relating to building
and engineering agreements
Dr Damien J Cremean
LLB (Hons), MA (Melb), PhD (Mon)
Barrister-at-Law
Michael H Whitten
LLB, BCom (UQ)
Barrister-at-Law
Michael F Sharkey
JD, Post-Grad Dip Creative Arts (Melb),
B Teach, BA (Deakin)
Solicitor, Sharrock Pitman Legal
LexisNexis Butterworths
Australia
2014
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National Library of Australia Cataloguing-in-Publication entry
Author: Cremean, Damien J.
Title: Brooking on building contracts.
Edition: 5th edition.
ISBN: 9780409329216 (hbk).
9780409331721 (ebk).
Notes: Includes index.
Subjects: Construction contracts — Australia.
Other Whitten, Michael H, author. Sharkey, Michael F,
Authors/Contributors: author.
Dewey Number: 343.940786928
© 2014 Reed International Books Australia Pty Limited trading as LexisNexis
First edition, 1974; Second edition, 1980; Third edition, 1995; Fourth edition,
2004
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Typeset in Bembo and FrizQuadrata.
Printed in Australia.
Visit LexisNexis Butterworths at www.lexisnexis.com.au
FOREWORD TO FIFTH EDITION
Nearly 40 years have passed since the first edition of Brooking on Building Contracts
was published in 1974. In that time the law on building contracts has changed
considerably. As with many areas of law, it is now one dominated by statute.
That is not to say that case law is no longer relevant. Almost every day, some new
decision is handed down somewhere around Australia, or perhaps in New
Zealand, altering in some way or adding to our understanding of the law. This is,
of course, a problem confronting any author’s account of law: trying to present a
comprehensive, authoritative and up to date account of a body of law which is
forever changing.
The authors of this, the 5th edition, of Brooking on Building Contracts have
achieved this in my view. This edition comprehensively deals with the law
relating to building contracts in a clear and understandable way — and in a way
which will ensure that the book remains the standard text on the subject in
Australia. I can do no better than to quote the words of the Hon Robert
Brooking AO QC himself writing the Foreword to the 3rd edition which were
quoted by the Hon Justice Murray Kellam when writing the Foreword to the 4th
edition published in 2004:
… on going through the book I found it at once comfortingly familiar and agreeably new, like a
building that had been renovated and extended with skill and care.
I congratulate Dr Damien Cremean, Mr Michael Whitten and Mr Michael
Sharkey on a fine renovation and commend them for the evident skill and care
they have shown in producing it.
Justice Stephen Gageler
High Court of Australia
December 2013
FOREWORD TO FIRST EDITION
by
SIR NINIAN STEPHEN, KBE
Justice of the High Court of Australia
The author of any Australasian legal text which is more than an annotation of
local legislation is confronted by a problem little understood in jurisdictions
which do not share our native taste for case law exotica. An Australasian textbook
on any general legal topic must extract the principles of the law from the
decisions of the Supreme Courts of New Zealand, six states and two territories of
Australia and the High Court of Australia and do all this against the background
of the whole developing body of English case law and a great variety of relevant
statute law.
The profession must be grateful indeed to Mr Brooking who has undertaken
this task in the difficult field of building and engineering contract law and has
accomplished it with elegance, producing the first modern Australasian work on
the topic.
It is said of Mr Jarman that he worked much standing ‘at a desk under a tree in
one of his fields with law books all round him’; Mr Brooking, 130 years later, has
no doubt been denied the delights of such rustic surroundings for his own task of
composition but, like the author of Hudson on Building Contracts, his writing
reflects his own considerable experience in litigating disputed building and
engineering contracts. This has given to the basic work of careful research and
schematic analysis a practical realism which must make it of particular use both to
the practitioner who ventures into this field and to the judge who finds himself
precipitated into it.
While the work concentrates particularly upon the Victorian scene, each
chapter has much of relevance throughout Australasia and the detailed
examination of the various standard forms of agreement currently in use may
lighten the burden of those who are concerned in their interpretation. Perhaps,
too, the familiar cry ‘There must be some decision on this point!’ will find a more
fruitful response now that a whole new stockpile of local decisions has been sifted
and the fines and aggregates duly classified.
It is indeed a pleasure to herald the advent of Brooking on Building Contracts.
Judges’ Chambers
450 Law Courts Place
Melbourne
June 1974
PREFACE
In the writing of this edition, Damien Cremean had responsibility for Chapters
1–6, 9–11, 13, 16 and 17; Michael Whitten for Chapters 7, 8, 15, 18 and 19; and
Michael Sharkey for Chapters 12 and 14. Toby Shnookal SC was unable to
participate in this new edition but was responsible for Chapters 9, 11, 12, 14, 16
and 17 in the last edition.
We should like to thank the Hon Justice Stephen Gageler of the High Court
of Australia who found time, in a busy round of duties, to write the foreword to
this fifth edition. The Hon Murray Kellam QC, formerly of the Victorian
Supreme Court, wrote the foreword to the fourth edition, published in 2004.
Also we thank again the Hon Robert Brooking QC, formerly of the Court of
Appeal of the Victorian Supreme Court, for agreeing to write the foreword to
Damien Cremean’s third edition, published in 1995. The work was his originally,
of course. We also must thank Mr David Bennett QC who prepared the second
edition of this work.
Mention must be made as well of various LexisNexis Butterworths personnel
including Hayley Moore and Eleanor O’Connor, and Philippa Findlay of
Puddingburn Publishing Services. Thanks are due to each of them.
The law is as stated 1 November 2013.
Dr Damien J Cremean (Adjunct Professor, University of Queensland)
Mr Michael Whitten
Mr Michael Sharkey
TABLE OF CASES
References are to paragraphs
1–5 Grantham Street Pty Ltd v Glenrich Builders Pty Ltd [2008] VSCA 228 ….
8.5
470 St Kilda Road Pty Ltd v Reed Constructions Australia Pty Ltd [2012] VSC
235 …. 8.7
500 Burwood Highway Pty Ltd v Australian Unity Ltd [2012] VSC 596 …. 9.13,
17.5
526 Olive Street Pty Ltd (rec & mgr appt) v Westpac Banking Corporation
(SC(NSW), Giles J, 7 July 1994, unreported) …. 18.30
620 Collins Street Pty Ltd v Abigroup Contractors Pty Ltd (No 2) [2006] VSC
491 …. 8.5
A
A & P Parkes Constructions Pty Ltd v Como Hotel Holdings Pty Ltd (2006) 22
BCL 45; [2004] NSWSC 588 …. 18.10
A C Robertson Pty Ltd (in liq) v Costa Brava Investments Pty Ltd (1961) 78
WN (NSW) 656 …. 18.39
A Smith & Son (Bognor Regis) Ltd v Walker [1952] 2 QB 319 …. 3.5
A T & N R Taylor & Sons Pty Ltd v Brival Pty Ltd [1982] VR 762 …. 18.10
A Vigers & Co Ltd v Swindell [1939] 3 All ER 590 …. 14.4, 14.16
ABB Power Generation Limited v Chapple (2002) 18 BCL 229 …. 14.4
ABB Power Plants Ltd v Electricity Commission of NSW t/as Pacific Power
(CA(NSW), 8 February 1995, unreported) …. 18.29
ABB Service Pty Ltd v Pyrmont Light Rail Company Ltd [2010] NSWSC 831
…. 18.40
Abdullah M Fahem & Co v Mareb Yemen Insurance Co & Tomen (UK) Ltd
[1997] 2 Lloyd’s Rep 738 …. 18.21
Aberdine Pty Ltd v Vineyard Estate Management Pty Ltd [2001] SASC 442 ….
14.5
Abigroup Contractors Pty Ltd v BPB Pty Ltd [2000] VSC 261 …. 18.10
— v Peninsula Balmain Pty Ltd (2002) 18 BCL 15; 18 BCL 322 …. 7.10, 17.4
— v River Street Developments Pty Ltd [2006] VSC 425 …. 8.7
— v Transfield Pty Ltd [1998] VSC 103 …. 18.21
Abrahams v Flynn [1996] ANZ ConvR 149 …. 19.42, 19.44
ACD Tridon Inc v Tridon Australia Pty Ltd [2002] NSWSC 896 …. 18.32,
18.33
ACN 002 804 702 (formerly Brooks Building) v McDonald [2009] NSWSC 610
…. 8.1
ACN 068 628 268 Pty Ltd v Dubsky Timber Pty Ltd (2000) 76 SASR 571 ….
14.5
Acorn Consolidated Pty Ltd v Hawkslade Investments Pty Ltd (2000) 16 BCL
353 …. 2.1, 2.5, 2.8, 2.10, 2.15
Acrow Pty Ltd v Allen C Smith Pty Ltd (SC(NSW), Street CJ, 22 March 1994,
unreported), …. 12.17
Adam Wood Group Pty Ltd v Procon Builders Pty Ltd [2012] VCC 2001 ….
18.49
Adams v Quasar Management Services Pty Ltd [2002] QSC 223 …. 12.6
Addis v Burrows [1948] 1 KB 444 …. 2.7
Adelaide City Corporation v Jennings Industries Ltd (1985) 156 CLR 274 ….
14.16
Adelaide Oil Exploration Co Ltd v Goldfields Diamonds Drilling Co (Pty) Ltd
[1932] SASR 390 …. 8.6
Adicho v Dankeith Homes Pty Ltd [2012] NSWCA 316 …. 1.1
Administration of the Territory of Papua and New Guinea v Daera Gub (1973)
130 CLR 353 …. 2.18