Mazelow Pty Ltd v Herberton Shire Council [2002] QCA 119

Mazelow Pty Ltd v Herberton Shire Council [2002] QCA 119 (31 August 2002)

SUPREME COURT OF QUEENSLAND

CITATION:

Mazelow P/L v Herberton Shire Council [2002] QCA 119

PARTIES:

MAZELOW PTY LTD

ACN 052 101 229

(respondent/ plaintiff)

v

HERBERTON SHIRE COUNCIL

(appellant/defendant)

FILE NO/S:

Appeal No 11407 of 2001

SC 495 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

5 April 2002

DELIVERED AT:

Brisbane

HEARING DATE:

19 March 2002

JUDGES:

McPherson and Williams JJA and Muir J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

CONTRACTS - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - IMPLIED TERMS - OTHER CASES - whether rights under general law can be considered excluded - where there is no explicit intention expressed to exclude common law rights

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - REPUDIATION - OTHER PARTICULAR CASES - whether the contract is brought to an end after repudiation by one party is accepted by the other - where there is no explicit intention expressed to exclude common law rights.

CONTRACTS - BUILDING AND ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT - POWER TO SUSPEND OR DETERMINE - whether the right to suspend work is a right or remedy available - where there is no express contractual provision.

Amann Aviation Pty Ltd v Commonwealth [1988] FCA 449; (1991) 100 ALR 267, applied

Amann Aviation Pty Ltd v Commonwealth [1990] FCA 55; (1990) 22 FCR 527, distinguished

Heyman v Darwins Ltd [1942] AC 356, applied

McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457, applied

Yasuda Fire & Marine Insurance Co of Europe Ltd v Orion Marine Insurance Underwriting Agency Ltd [1995] QB 174, considered

COUNSEL:

M P Amerena for the appellant

A J Moon for the respondent

SOLICITORS:

MacDonnells for the appellant

Connolly Suthers for the respondent