TURNER CORPORATION PTY LTD V AUSTOTEL PTY LTD (1994) 13 BCL 378
FACTS
Turner Corporation Pty Ltd (‘Turner’), as Builder, entered into a “Building Works Contract – JCCA 1985 with Quantities” with Austotel Pty Ltd (‘Austotel’), the Proprietor. The Architect certified an entitlement to Austotel to liquidated damages and ascertained damages in the sum of $2,250,000 calculated at the rate of $75,000 per week from the period 3 October 1991 to 1 May 1992, being the Date of Practical Completion certified by the Architect.
During the course of the project Turner requested an instruction from the Architect regarding the provision of a gas leak detector. The Architect provided an instruction five months later which was after the Date for Practical Completion. Turner claimed an extension of time of seven days to the critical path as a result of the late provision of instructions, which was granted. In addition, Turner was awarded $13,500 per day, namely, $94,500 being delay costs for that seven days.
Further, Turner asserted it was not only entitled to an extension of time to the Date for Practical Completion arising from the delay in provision of instructions, thus minimizing the time for which it might be liable for liquidated damages for failure to achieve practical completion by the Date for Practical Completion, but that achievement of its contractual obligation of Practical Completion by the extended Date for Practical Completion was prevented by the late receipt of those instructions.
This latter aspect was said to result in the Proprietor not being entitled to recover any sum by way of liquidated damages pursuant to the provisions of the contract because it had prevented performance.
ISSUE
Whether prevention principle applies in relation to failure to perform contractual obligation to bring works to practical completion by agreed date as a result of asserted preventing act for which proprietor is responsible.
FINDING
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