LEE KONG NELDER NOMINEES V JOHN HOLLAND CONSTRUCTION & ENGINEERING [1998] WASCA 135
Full Court of the Supreme Court (WA) – 27 May 1998
FACTS
Lee Kong had traded as an aluminum and glazing business and had agreed to sell the business to Acegold, a company employed by one of its employees. Lee Kong at the time had a subcontract with John Holland and wished to assign that contract to Acegold.
The contract could only be assigned with the consent of John Holland and negotiations were conducted between the three parties to arrange an assignment. The three parties executed a Deed of Assignment on 18 December 1991 and the whole benefit of the contract was assigned to Acegold.
Lee Kong alleged that the Deed had left out an agreement between the parties whereby Lee Kong was entitled to payment for all work completed under the contract up to 31 October 1991. Lee Kong sued John Holland for unpaid accounts for work allegedly completed before 31 October 19991. John Holland denied that such an agreement had been made and claimed that Acegold, which had been liquidated, was entitled to payment for any unpaid work completed up to 31 October 1991.
ISSUES
Should the Deed of Assignment be rectified to include a provision that Lee Kong was entitled to payment for work completed up to 31 October 1991?
Could John Holland defend the claim on the basis that Lee Kong had unreasonably delayed its claim for payment and mayhave paid the claimed amount to Acegold?
FINDING
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