KANE CONSTRUCTIONS V SOPOV [2005] VSC 237
Supreme Court of Victoria – 26 July 2005
FACTS
Kane Constructions (“Kane”) entered into a contract with Sopov for the renovations and extensions to a former industrial building at 158-172 Oxford St, Collingwood in Melbourne. The works involved the internal construction and installation within the existing building of a gallery, office space, restaurant, basement car park and entrance areas. Clause 23 of the contract provided that “the Principal shall ensure that the Superintendent … (a) acts honestly and fairly; (b) acts within the time prescribed under the contract; (c) arrives at a reasonable measure or value of work”. The works under the contract were to be completed in 130 days. However, a series of delays occurred such that, a year later, the works were incomplete. Kane, the builder, complained of a number of matters including the lack of a suitably qualified Superintendent and suspended the works. Kane contended that the Superintendent failed to resolve discrepancies in the contract drawings, refused to grant extensions of time and did not respond within the prescribed time and that the Superintendent was not independent and was at the whim of Sopov. Kane further contended that the Superintendent did not allow Kane to put its position forward on a number of items and the Superintendent was effectively “rubber stamping” Sopov’s position. Therefore, Kane submitted that the Principal was in fundamental breach of its obligations which were required to be discharged via an appropriate, competent, honest and fair Superintendent.
ISSUE
Whether the Superintendent was appropriate, competent, honest and fair.
FINDING
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