Darwin Taxi Trucks Pty Ltd (“DTT”) engaged Building Consultants Pty Ltd (“BC”)

QUESTION 1

Answer each of the 10 sub-questions arising from this problem situation. Briefly discuss relevant cases and principles in relation to each sub-question Each is worth 2 marks.

In June 2015 Darwin Taxi Trucks Pty Ltd (“DTT”) engaged Building Consultants Pty Ltd (“BC”) to design and construct additions to DTT’s premises at Winnellie. The additions included a new 2 level loading bay and extra warehouse space. Jim Joiner, managing director of DTT, consulted DTT’s lawyers in relation to the preparation of their contract with BC and in the course of this consultation discussed the specifications in the contract. The lawyer had experience with building warehouses and queried the drafting of the provisions in relation to the thickness of the concrete floor, particularly given the fact that trucks would be driving on it when loading and unloading deliveries. She offers to call her friend at Top End Engineering to obtain information on appropriate specifications to be included in the contract. The lawyer’s notes of the call record that her friend advised that specification of a 240 mm floor will be OK for weights up to 10 tonnes as long as the floor was given at least 15 days to cure properly. Jim Joiner accordingly insists that the contract specify a 240 mm floor, but the contract is silent as to the period for the cure.

BC duly constructs the floor to the required thickness but fails to allow the concrete to cure for 15 days. BC is anxious to receive its next contract progress payment, which is due on building certification of the floor slab. Accordingly it immediately (the day after the concrete pour) calls in a Building Inspector to undertake a progress certification. The Inspector refuses to certify the works, and informs the Principal DTT that in his opinion the only way of remedying the problem is to jackhammer the floor and start over again. BC refuses to do this unless DTT agrees to pay for the additional work as a contract variation, asserting that it has constructed the works in accordance with specifications inserted in the contractual documents at DTT’s insistence.

DTT commences legal proceedings against BC in the NT Supreme Court for damages for breach of contract and negligence, and a declaration that it is entitled to rescind the contract in reliance on BC’s refusal to remedy defective works. BC counter-claims seeking payment from DTT for building works already completed. BC seeks discovery of the lawyer’s notes of the call to her friend at Top End Engineering.

(1) What is the relevance of the information in the notes? Would you describe the notes as directly relevant?

(2) Are the notes discoverable?
(3) Are the notes covered by legal professional privilege?

BC instructs its solicitors to find a way to preserve the floor of the premises in its current condition and to arrange for detailed testing of the floor.
Three procedures BC’s solicitors could use to achieve their instructions are:

  • order to inspect and test property
  • order to preserve property
  • interim and/or interlocutory injunction
  1. (4)  Specify the Supreme Court Rules applicable to each of these possible procedural remedies.
  2. (5)  ) Outline the arguments that BC would use to seek an interim or interlocutory injunction.
  3. (6)  What do you think the court would decide, and why?

Now assume that the Court granted BC an interlocutory injunction restraining any remedial or removal work on the floor for a period of 8 weeks to enable BC’s engineering expert to undertake tests and inspections as to the structural strength/adequacy of the floor. Assume that you now act for BTT, which instructs you that it desperately needs to begin remedial work on the floor without delay, and cannot afford to wait 8 weeks. The uncompleted building works are seriously obstructing access to the existing loading bay and causing drastic delays in deliveries and therefore loss of customers and profits (taxi truck services being very time- sensitive), and DTT’s bank is threatening to implement default procedures in relation to the loan DTT took out to finance the building works.

(7) What procedures would you advise DTT to implement?
(8) What arguments would you advance to the Court?
(9) What arguments would you anticipate BC might advance? (10) What do you think the court would decide, and why?

Get a 10 % discount on an order above $ 100
Use the following coupon code :
CPW2015