Planet Build (NSW) Pty. Limited v. Lassgol Pty. Limited [2000] NSWSC 788

Supreme Court of NSW|2000-08-09

CITATION : Planet Build (NSW) Pty. Limited v. Lassgol Pty. Limited [2000] NSWSC 788 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3360/00 HEARING DATE(S) : 03/08/00 JUDGMENT DATE : 9 August 2000

PARTIES : Planet Build (NSW) Pty. Limited - plaintiff Lassgol Pty. Limited - defendant JUDGMENT OF : Hodgson CJinEq at 1

COUNSEL : M.J. Walsh for plaintiff A. Henskens for defendant SOLICITORS : Tress Cocks & Maddox, Sydney for plaintiff Colin Biggers & Paisley, Sydney for defendant CATCHWORDS : CONTRACTS - Building, engineering and related contracts - Retention moneys and security - Performance bond - Rights of owner and builder - Whether set-off available. - INJUNCTIONS - Interlocutory injunctions - Whether questions of law should be decided. Blue Chip Pty. Ltd. v. Concrete Constructions Group Pty. Ltd. (1997) 13 BCL 31 Algons Engineering Pty. Ltd. v. Abigroup Contractors Pty. Ltd. (1998) 14 BCL 215 CASES CITED : Barclay Bowlem Construction Ltd. v. Simon Engineering (Aust) Pty.Ltd. (1991) 23 NSWLR 451 Karguleski v. Vasil Brothers & Co.Pty. Ltd. (1981) NSWLR 267 Hortico (Aust) Pty. Ltd. v. Energy Equipment Co. Aust Pty. Ltd. (1985) 1 NSWLR 545 MCP Muswellbrook Pty. Ltd. v. Deutsche Bank (Asia) AG (1988) 12 NSWLR 11. DECISION : See end of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

NO. 3360 OF 2000 PLANET BUILD (NSW) PTY. LIMITED V. LASSGOL PTY. LIMITED

1 Under a contract dated 27th August 1998, the plaintiff Planet Build agreed with the defendant Lassgol to design and construct an apartment complex at Camperdown for $4.6 million. This agreement was varied by a Deed of Release made on 5th November 1999. 2 On 12th February 1999, Lassgol was provided with a Performance Bond by American Reinsurance Company, in an amount of $115,000.00, in respect of the performance by Planet Build of its obligations under the contract. Lassgol has given notice of its intention to call on this Bond in respect of an alleged default by Planet Build under the contract. I am dealing with an application by Planet Build for an injunction to restrain Lassgol from calling on that Bond.

OUTLINE OF FACTS 3 It is necessary first to set out the relevant terms of the contract. In the contract, Lassgol is called the Principal, Planet Build is called the Contractor, and the contract refers to the person appointed by the Principal to supervise the performance of the contract as the Superintendent. 4 Clause 5 of the contract deals with security, retention moneys, and performance undertakings. According to cl.5.1, "Security, retention moneys and performance undertakings are for the purpose of ensuring the due and proper performance of the Contract". Clause 5.5 provides for retention moneys, which according to Item 15 of Annexure Part A of the Contract are to be 10% of the value of work done until 5% of the contract sum is reached (that is, until the sum of $230,000.00 is reached). Clauses 5.6 and 5.7 are in the following terms: 5.6 A party may have recourse to security, retention moneys or both and may convert into money security that does not consist of money where- (a) the party has become entitled to exercise a right under the Contract in respect of the security, retention moneys or both; (b) the party has given the other party notice in writing for the period stated in Annexure Part A or, if no period is stated, 5 days, of the party's intention to have recourse to the security, retention moneys or both; and (c) the period stated in Annexure Part A or, if no period is stated, 5 days, has or have elapsed since the notice was given.

5.7 The Contractor shall be at liberty at any time to provide in lieu of retention moneys, security in any of the forms permitted in Clause 5.3. To the extent that such security is provided, the Principal shall not deduct retention moneys and shall forthwith release retention moneys. 5 It appears that the Contractor chose under cl.5.7 to provide the Performance Bond in respect of $115,000.00, so that the maximum of retention moneys was reduced to $115,000.00. 6 Clause 5.10 has two alternative provisions for the holding of and interest on retention moneys. This contract provided for the first alternative, which is in the following terms: 5.10 A party holding cash security, retention moneys or both shall forthwith deposit the moneys in an interest bearing account in a bank. That party shall nominate the bank and the type of account. The account shall be in the joint names of the Principal and the Contractor and shall be one from which moneys can only be drawn with the signatures of two persons, one appointed by each of the Principal and the Contractor. The moneys shall be held until the Principal or the Contractor is entitled to receive them.

Interest earned on cash security provided by the Contractor and on retention moneys belongs to the Contractor. Interest earned on cash security provided by the Principal belongs to the Principal.

Upon a party becoming entitled to receive any moneys, including interest in the account, the other party shall forthwith have that other party's appointee sign all documentation necessary to withdraw the moneys and shall promptly give the signed documentation to the party entitled to receive such moneys. 7 Clause 35 deals with the time for commencement and practical completion. Clause 35.2 is in the following terms: The Contractor shall execute the work under the Contract to Practical Completion by the Date for Practical Completion.

Upon the Date of Practical Completion the Contractor shall give possession of the Site and the Works to the Principal. 8 The definitions of "Practical Completion", "Date for Practical Completion" and "Date of Practical Completion" are given in cl.2 of the contract, and are as follows: 'Practical Completion' is that stage in the execution of the work under the Contract when- (a) the Works are complete except for minor omissions and minor defects- (i) which do not prevent the Works from being reasonably capable of being used for their stated purpose; (ii) which the Superintendent determines the Contractor has reasonable grounds for not promptly rectifying; and (iii) rectification of which will not prejudice the convenient use of the Works; (b) those tests which are required by the Contract to be carried out and passed before the Works reach Practical Completion, have been carried out and passed; and (c) documents and other information required under the Contract which, in the opinion of the Superintendent, are essential for the use, operation and maintenance of the Works, have been supplied;

'Date for Practical Completion' means - (a) where Annexure Part A provides a date for Practical Completion, the date; or (b) where Annexure Part A provides a period of time for Practical Completion, the last day of the period, but if any extension of time for Practical Completion is granted by the Superintendent or allowed in any arbitration or litigation, it means the date resulting therefrom;

'Date of Practical Completion' means - (a) the date certified by the Superintendent in a Certificate of Practical Completion to be the date upon which Practical Completion was reached; or (b) where another date is determined in any arbitration or litigation as the date upon which Practical Completion was reached, that other date; 9 Clause 35.5 provides for extensions to the time for practical completion, which I take to be the same as the date for practical completion. Clause 35.6 provides for liquidated damages for delay in reaching practical completion, and is in the following terms: 35.6 If the Contractor fails to reach Practical Completion by the Date for Practical Completion, the Contractor shall be indebted to the Principal for liquidated damages at the rate stated in Annexure Part A for every day after the Date for Practical Completion to and including the Date of Practical Completion or the date that the Contract is terminated pursuant to Clause 44, whichever first occurs.

If after the Contractor has paid or the Principal has deducted liquidated damages, the time for Practical Completion is extended, the Principal shall forthwith repay to the Contractor any liquidated damages paid or deducted in respect of the period to and including the new Date for Practical Completion. 10 Clause 42 deals with certificates and payments. Clause 42.1 deals with payment claims and certificates. The two relevant parts of this clause are in the following terms: 42.1 Within 14 days of receipt of a claim for payment, the Superintendent shall assess the claim and shall issue to the Principal and to the Contractor a payment certificate stating the amount of the payment which, in the Superintendent's opinion, is to be made by the Principal to the Contractor or by the Contractor to the Principal. The Superintendent shall set out in the certificate the calculations employed to arrive at the amount and, if the amount is more or less than the amount claimed by the Contractor, the reasons for the difference. The Superintendent shall also set out, as applicable, in any payment certificate issued pursuant to Clause 42, the allowances made for- (a) the value of work carried out by the Contractor in the performance of the Contract to the date of the claim; (b) amounts otherwise due from- (i) the Principal to the Contractor; and (ii) the Contractor to the Principal; (c) amounts assessed under Clause 46.4 and not duly disputed; (d) amounts paid previously under the Contract; (e) amounts previously deducted for retention moneys pursuant to Annexure Part A; and (f) retention moneys to be deducted pursuant to Annexure Part A, arising out of the Contract resulting in the balance due to the Contractor or the Principal, as the case may be. ... Subject to the provisions of the Contract, within 28 days of reciept by the Superintendent of a claim for payment or within 14 days of issue by the Superintendent of the Superintendent's payment certificate, whichever is the earlier, and within 14 days of the issue of a Final Certificate, the Principal shall pay to the Contractor or the Contractor shall pay to the Principal, as the case may be, an amount not less than the amount shown in such certificate as due to the Contractor or to the Principal, as the case may be, or if no payment certificate has been issued, the Principal shall pay the amount of the Contractor's claim. A payment made pursuant to this Clause 42.1 shall not prejudice the right of either party to dispute under Clause 47 whether the amount so paid is the amount properly due and payable and on determination (whether under Clause 47 or as otherwise agreed) of the amount so properly due and payable, the Principal or the Contractor, as the case may be, shall be liable to pay the difference between the amount of such payment and the amount so properly due and payable. Payment of moneys shall not be evidence of the value of work or an admission of liability or evidence that work has been executed satisfactorily but shall be a payment on account only, except as provided under Clause 42.6. 11 Item 46 of the Annexure Part A permits claims to be made each 21 days, and reduces the time for certification to 7 days and the time for payment to four days. 12 Clause 42.3 provides for the issue by the Superintendent of a certificate practical completion, and contains the following provision in that regard: When the Contractor is of the opinion that Practical Completion has been reached, the Contractor shall in writing request the Superintendent to issue a Certificate of Practical Completion. Within 14 days of the receipt of the request, the Superintendent shall give to the Contractor and to the Principal a Certificate of Practical Completion certifying the Date of Practical Completion or give the Contractor in writing the reasons for not issuing the Certificate. 13 Clause 42.8 deals with the Principal's right to set-off in the following terms: 42.8 The Principal may deduct from moneys due to the Contractor any money due from the Contractor to the Principal otherwise than under the Contract and if those moneys are insufficient, the Principal may, subject to Clause 5.6, have recourse to retention moneys and, if they are insufficient, then to security under the Contract. 14 Clause 42.9 deals with recourse for unpaid moneys, in the following terms: Where, within the time provided by the Contract, a party fails to pay the other party an amount due and payable under the Contract, the other party may, subject to Clause 5.6, have recourse to retention moneys, if any, and, if those moneys are insufficient, then to security under the Contract and any deficiency remaining may be recovered by the other party as a debt due and payable. 15 Clause 43 deals with the payment of workers and sub-contractors. Clause 43.2 is in the following terms: 43.2 Not earlier than 14 days after the Contractor has made each claim for payment under Clause 42.1, and before the Principal makes that payment to the Contractor, the Contractor shall give to the Superintendent a statutory declaration by the Contractor or, where the Contractor is a corporation, by a representative of the Contractor who is in a position to know the facts declared, that all subcontractors have been paid all moneys due and payable to them in respect of work under the Contract. 16 Clause 43.3 provides that, if the Contractor fails to comply with cl.43.2, the Principal may withhold payment of moneys due to the Contractor until the statutory declaration is received by the Superintendent. 17 As noted earlier, a Performance Bond was given on 12th February 1999. According to its terms, it expires at 4pm on the date of issue by Lassgol or Lassgol's representative of "the Certificate of Practical Completion". 18 There were various disputes between the parties, which were resolved by the entry into the Deed of Release of 5th November 1999. This Deed was made between Planet Build and Lassgol, and also the directors of Lassgol who guaranteed Lassgol's obligations under cls.2.5 and 2.6. In the Deed, the parties agreed to amend the contract in accordance with the Second Schedule to the Deed, and Lassgol agreed in cl.2.5 that it would "pay to the releasor [that is, Planet Build] the sum of $425,000.00, less any amount due by [Planet Build] to [Lassgol] for liquidated damages within three months from the Date of Practical Completion as provided for by the contract". The Second Schedule to that Deed was in the following terms: SECOND SCHEDULE

The parties agree to amend the terms of the contract between them dated 27 August 1998 ('the Contract') as set out below and this amendment is to be read as one of the several documents forming the Contract as referred to in clause 8.1. However, where there is any inconsistency between this document ('the Amendment') and the other documents forming the Contract, the terms of the Amendment are to override the terms of any other documents which form part of the Contract.

Defined terms in the Amendment have the same meaning as those terms in the Contract.

The parties now agree to amend the Contract as follows: 1 . Notwithstanding any other provision of the Contract, the Contractor shall, on or before 15 February 2000 ('the Completion Date'), carry out all of the Works and take all such steps as are necessary to enable the final acceptable Council/assessor inspection form to be issued by Marrickville Council in regard to the Works. The Completion Date is not subject to adjustment or extension under any provision of the Contract (including but not limited to clause 35.5) except where the Contractor is entitled to an extension of time arising from the execution of any variations to the Works which arise from any variation requested by the Principal in writing pursuant to clause 40.4 of the Contract.

The rate of liquidated damages applicable for late completion of the Works after the Completion Date ('completion of the Works' being as set out in paragraph 1 hereof) shall now be as follows: - up to 7 days after the Completion Date - no liquidated damages apply; - between 7 days and 14 days after the Completion Date - $5,000.00 for that week; - from l4 days after the Completion Date - $10,000.00 per week.

The handwritten parts of Item 46(a) in Part A of the Contract are to be deleted and replaced with the following: - each 7 days for claims - 2 days for certification - payment to occur on the same day as certification'

The handwritten parts of Item 7 in part A of the Contract are to be deleted and replaced with the following:

Farrell Projects Pty Limited (ACN 062 625 567)

The handwritten parts of Item 8 in part A of the Contract are to be deleted and replaced with the following:

Level 7, 120 Sussex Street, Sydney NSW 2000 19 On 26th June 2000, the Superintendent issued a payment certificate for $114,421.00, in response to Planet Build's Progress Claim No.50. That amount was not paid, and on 28th June 2000, Planet Build sent to Lassgol a Notice to Show Cause why Planet Build should not exercise its rights under cl.44.9 of the contract. Apparently, cause had not been shown by 4pm on 7th July 2000, and shortly thereafter Planet Build suspended work. 20 Meanwhile, it appears that on 29th June 2000, Planet Build made Progress Claim No.51 for the sum of $259,107.00 (which included the $114,421.00). No certificate was issued in response to this claim until 19th July 2000. 21 On 10th July 2000, Lassgol requested from Planet Build a statutory declaration in relation to the Progress Claim No.50, and this was provided on 18th July 2000. 22 On 19th July 2000, the Superintendent issued a certificate in relation to Progress Claim No.51, showing $18,243.00 due from Planet Build to Lassgol. This certificate showed a deduction of $267,000.00 for non-complying work, showed a previous retention of $110,888.00, and provided for a further retention of $4,112.00, making a total retention of $115,000.00 (which, together with the Bond of $115,000.00, made up the maximum total retention of $230,000.00). However, there is evidence that only about $78,000.00 had been paid by Lassgol into the account into which retention moneys were to be paid. 23 On 20th July 2000, Marrickville Council issued a certificate, described as a final certificate, certifying that the building was suitable for occupation for use. 24 On 25th July 2000, Lassgol gave notice to Planet Build that it proposed to claim retention moneys and the Performance Bond to satisfy liquidated damages of $215,000.00 in respect of Planet Build's failure to reach practical completion. 25 In a letter dated 2nd August 2000, Lassgol's solicitors claimed that there had been no breach by Lassgol in respect of payment of progress claims, because of Planet Build's failure to supply the statutory declaration until 18th July 2000. In their reply dated 3rd August 2000, Planet Build's solicitors claimed that Lassgol could not rely on the failure to provide a statutory declaration, because cl.43.2 was inconsistent with the Deed and therefore excluded by it, and on the ground of estoppel.

SUBMISSIONS 26 Mr. Walsh for Planet Build has provided a written outline of submissions, which I will leave with the papers. He submitted that cl.2.5 of the Deed provided a fund against which any liquidated damages to which Lassgol might be entitled was to be claimed, so that the Deed prevailed over the contract and excluded Lassgol's right to satisfy the claim for liquidated damages from the Performance Bond. Mr. Walsh sought to support that submission by reference to correspondence leading up to the execution of the Deed, but I am clearly of the view that that correspondence cannot affect the interpretation of the Deed. Next, Mr. Walsh submitted that time had ceased running, due inter alia to Lassgol's failure to pay the two progress claims, in respect of which Planet Build was entitled to summary judgment: see Blue Chip Pty. Limited v. Concrete Constructions Group Pty. Limited (1997) 13 BCL 31, Algons Engineering Pty. Limited v. Abigroup Contractors Pty. Limited (1998) 14 BCL 215. In any event, Mr. Walsh submitted, the Performance Bond had expired by 20th July at the latest, because the Deed substituted the provision of the final Council inspection form for practical completion, and the Performance Bond was therefore either displaced by the Deed or else must expire on the date of what is substituted for practical completion. The balance of convenience favoured the grant of an interlocutory injunction: see Barclay Mowlem Construction Limited v. Simon Engineering (Aust) Pty. Limited (1991) 23 NSWLR 451. 27 Mr. Henskens for Lassgol submitted that cl.2.5 of the Deed did not exclude Lassgol's right to claim the liquidated damages from the Performance Bond. It did not provide that all liquidated damages, whenever arising, should be set off against the $425,000.00, but merely that any liquidated damages still outstanding at the relevant time should be thus set off. If the Deed had intended to limit or displace Lassgol's rights in relation to the Performance Bond, it would have said so. 28 Mr. Henskens submitted that I should not dispose of the matter on the basis that there was a serious question to be tried as to the effect of cl.2.5, but rather should decide that question: see Karguleski v. Vasil Brothers & Co. Pty. Limited (1981) 1 NSWLR 267, Hortico (Australia) Pty. Limited v. Energy Equipment Co. Australia Pty. Limited (1985) 1 NSWLR 545, MCP Muswellbrook Pty. Limited v. Deutsche Bank (Asia) AG (1988) 12 NSWLR 11.

DECISION 29 I accept Mr. Henskens' submission that normally pure questions of law (including questions of construction) should be decided if they can determine interlocutory applications. However, this is not universally required, particularly if, as suggested by Young, J. in Hortico, time does not permit of proper consideration of the questions of law, or if a more complete factual matrix is required than can be provided at the interlocutory hearing. 30 In this case, I do not think there is any relevant dispute affecting the factual matrix necessary for construction of the contract. There are disputes concerning the basis of Planet Build's claim for the amount by which its Progress Claim No.51 exceeded the amount certified in relation to Progress Claim No.50, and also concerning Lassgol's claim to be entitled to deduct $267,000.00 for non-complying work; and these disputes plainly involve factual questions. It seems clear that there are serious questions to be tried concerning these matters. 31 However, it is submitted for Lassgol that, even if I decided these questions in favour of Planet Build, Lassgol would still be entitled to call on the Performance Bond, because it is entitled to over $200,000.00 in liquidated damages, cl.2.5 of the Deed does not affect Lassgol's rights to call on the Bond, and the Bond has not yet expired in that practical completion has not been achieved and no Certificate of Practical Completion has issued. As I understand it, Lassgol also submits that Planet Build is not entitled to $259,107.00, or even to $114,421.00, because of the failure to provided a statutory declaration; and that anyway, even if it was, it cannot claim to have these amounts set off against Lassgol's entitlement to liquidated damages. 32 I will deal in turn with these matters, giving in the first instance my prima facie views; and then I will state my opinion on whether I should proceed to finally determine these questions. 33 I think it is correct to say that Lassgol is entitled to over $200,000.00 in liquidated damages. My present view is that its entitlement to liquidated damages ceased when Marrickville Council issued its certificate on 20th July 2000; but even on that basis, on my calculation, Lassgol is entitled to liquidated damages of $215,000.00. 34 At present, I am inclined to think that cl.2.5 of the Deed does not detract from Lassgol's right to call on the Performance Bond in respect of liquidated damages. On its true construction, I think it means that what is to be deducted from the $425,000.00 is so much of liquidated damages as then should be owing. 35 I think also that the Bond has not yet expired. Although the Deed made a different provision for the calculation of liquidated damages, substituting for practical completion in that regard a date referable to the grant of a Certificate by Marrickville Council, I do not think it took all references to practical completion out of the contract: for example, I do not think it affected the provision that practical completion was the date for handing over possession. In those circumstances, I do not think it affected the provision in the Performance Bond to the effect that expiry of that Bond would take place when the Superintendent gave the Certificate of Practical Completion. 36 At present, I think Planet Build is entitled to payment of $259,107.00, notwithstanding the late provision of the statutory declaration and notwithstanding the Superintendent's Certificate given on 19th July 2000. The Superintendent's Certificate was required to be given within two days, and otherwise, in my tentative opinion, the Principal was required to pay the amount of the claim. Clause 43.2 of the contract provided for a statutory declaration to be given "not earlier than 14 days after" each claim for payment, and before actual payment; and yet the Deed of Release required payment within two days of the making of a claim. The two provisions therefore cannot stand together, and that in the Deed of Release must prevail. In my opinion, it prevails by removing the requirement that the statutory declaration must be given before payment, and removing the entitlement of the Principal to withhold payment until the statutory declaration was given. (Indeed, it may be that this was the effect of the original contract, because it provided for payment within 11 days.) Furthermore, in my opinion, the certificate issued on 19th July 2000 was of no effect, because there had already crystallised a liability for $259,107.00. I would note however that these matters were not adequately argued; and in those circumstances I would not, without further argument, make a final decision on them. 37 Turning to the question of whether a set-off would be available to the Contractor, my present view is that it would be. Again, this was a matter not adequately argued before me, and I would not make a final decision without further argument. However, I would note the following matters. 38 Lassgol's right to call on the Performance Bond is governed by cl.42.9 of the contract; and having regard to the terms of cl.5.6, in my opinion it has no wider right: cf. Barclay Bowlem. Clause 42.9 requires recourse first to retention moneys, and then to security (including a performance bond) only if those moneys are insufficient. The retention moneys are security for both parties; so that, just as Lassgol could have recourse to them for its liquidated damages, Planet Build could have recourse to them for its unpaid progress claims. Access to retention moneys requires participation of both parties: see cl.5.10, first alternative. I do not think it could have been intended that, if for example there was $100,000.00 in the retention moneys, the Contractor owed the Principal $100,000.00 in liquidated damages for late completion, and the Principal owed the Contractor $100,000.00 for unpaid progress claims, the one that gave the first notice under cl.5.6(b) would become entitled to the whole of the retention moneys; and accordingly, I think the contract implies that there should be a set-off when recourse is sought to retention moneys. Because the Principal must have recourse first to retention moneys before having recourse to security, I think there must also be an implied set-off in relation to the Principal's claim on the Performance Bond. 39 If there is no set-off, it would seem that Planet Build is immediately entitled to summary judgment for $259,107.00: see Algons. If Planet Build claimed and obtained such a judgment, and claimed to have Lassgol's entitlement to the moneys from the Performance Bond applied in part-satisfaction of that summary judgment, prima facie it would be entitled to do so. Again, this is a matter on which I have not heard adequate argument. 40 In my opinion, if I am to finally decide the questions that Lassgol wishes me to finally decide, I should also finally decide the other questions I have mentioned, on which I have not yet heard adequate argument. It would be necessary to fix a further time for that argument. I believe I would also give Planet Build an opportunity at the same time to apply for summary judgment in respect of the $259,107.00. 41 On the other hand, if Lassgol does not press for a final determination of these matters, and if I proceed on the basis of a serious question to be tried, in my opinion the balance of convenience plainly favours Planet Build. My prima facie view is that Lassgol owes Planet Build over $259,000.00, whereas Planet Build owes Lassgol around $215,000.00. Lassgol has a further sum of $425,000.00 against which it can satisfy any additional damages to which it may be entitled. Lassgol appears to have defaulted in relation to its payments into the retention moneys, to an extent in excess of $30,000.00. I would also note that, in all these circumstances, it seems to me there would be a very real question as to whether the claim against the Performance Bond proposed by Lassgol is justified in terms of cl.5.1: there seems to be a serious question to be tried as to whether it is pursuing 'due and proper performance of the Contract'. 42 For those reasons, I would propose to continue the existing injunction until further order. I would give leave to Lassgol to have the matter re-listed before me for further argument of the interlocutory application, on the basis outlined above. 43 Finally, I note that it is not satisfactory that there be a summons claiming only interlocutory relief. Planet Build should amend the summons to claim final relief, which could be for declarations as to the construction of the contract, and possibly also for judgment for the amounts of the progress claims.

ON DELIVERY OF JUDGMENT

44 HIS HONOUR: I have not made a final determination of the issue concerning construction because I came to the view that, on a closer reading of the contract, there were other issues which would need to be determined, which either were not argued, or were not adequately argued. 45 If the defendant wishes to have the matter re-listed before me for further argument, with a view to finally determining all the issues of law or construction, then I would probably permit that to happen. Otherwise, the matter would proceed towards a final hearing. 46 I note at the end of the judgment that the summons should seek final relief, either by way of declaration concerning construction, or maybe summary judgment for some amount. 47 One further matter I would add. On re-reading the judgment this morning, I have realised that, in setting out the matters in relation to the balance of convenience, there were two matters I omitted, namely the District Court attachment order, and the circumstance that on 28th July 2000, Lassgol had topped up the joint retention fund to the appropriate amount. Those two matters would not alter my view as to the balance of convenience. 48 I stand the matter over to the Registrar's list on 16th August 2000. 49 I give liberty to the parties to approach my Associate in the meantime if the defendant wishes to seek further argument concerning the interlocutory relief. 50 Upon the plaintiff by its Counsel giving to the Court the usual undertaking as to damages, I continue the existing injunction until further order. 51 I order that, if there is no further interlocutory hearing, the costs of the contested hearing before me be plaintiff's costs in the proceedings, and that other costs incurred to date be costs in the proceedings. ********

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Judgment (27 paragraphs)

Cases Cited (4)