JENNINGS CONSTRUCTION LTD V Q H & M BIRT PTY LTD [1986] 8 NSWLR 18
Supreme Court of New South Wales – 6 November 1986
FACTS
Jennings Construction Ltd (‘Jennings’) entered into a subcontract with Q H & M Birt Pty Ltd (‘Birt’) earthworks relating to the construction of State Highway No. 3 near Goulburn. Birt performed earthworks and made a claim against Jennings for reasonable remuneration. Jennings rejected the claim on the basis that clause 47 of the subcontract operated to bar the claim.
Clause 47 of the subcontract stated:
“47. The Contractor shall not be liable upon any claim by the Sub-Contractor in respect of any matter arising out of this Contract unless the claim, together with full particulars thereof, is lodged in writing with the Contractor not later than fourteen (14) days after the date of the occurrence of events or circumstances on which the claim is based or written notice of intention to make a claim specifying the nature of the claim is lodged with the Contractor within that time and the claim together with full particulars thereof, is lodged in writing with the Contractor not later than fourteen (14) days before the issue of the Final Certificate under the Head Contract.”
ISSUE
Does clause 47 operate as a precondition to payment?
FINDING
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