Codelfa Construction Pty Ltd V State Rail Authority (NSW)

149 CLR 337
41 ALR 367

---

Between: Codelfa Construction Pty Ltd
And: State Rail Authority (NSW)

Court:

Judges: Stephen J
Mason J
Aickin J
Wilson J
Brennan J

Subject References:
Contract

Judgment date: 11 May 1982

Canberra

---

ORDER

Action No. 71 of 1981.

1. Appeal allowed in part. Cross appeal allowed in part.

2. Order of the Court of Appeal set aside and in lieu thereof order as follows : -

(1) Appeal allowed in part. Cross appeal allowed in part. Order of Ash J. set aside and in lieu thereof answer the questions in the case stated by the Arbitrator as follows: -

Paragraph 63. In respect of the First Issue:

(A) Q. Whether the term implied by the Arbitrator as set forth in par. 20 hereof can in law be implied either on the basis of the proper construction of the Contract, business efficacy or otherwise.

A. No.

In respect of the Fifth Issue:

(a) Q. Whether upon the proper construction of Clause G.28 of the Contract the "value of the uncompleted portion of the Contract" in sub-cl. (3) and (5) of the said Clause should be calculated at the respective unit prices set out in the Schedule of Rates and not otherwise.

A. No.

(c) Q. Whether the Arbitrator is erroneous in law in his finding and determinations that at the time when the formula in sub-cl. (3) or the formula in sub-cl. (5) of Clause G.28 comes to be applied it operates upon a value of the uncompleted portion of the Contract which is not calculated at tender rates except for the first variation under either of such sub-clauses after the date of tender but which is calculated after such first variation at rates which increase in a compound manner so that the second application of either formula operates upon rates into which there has been compounded the effect of the first application of either formula and thereafter each application of either formula operates upon rates which have been progressively increased in such compound manner upon each and every application of either formula.

A. No.

(1) (Question added by consent during the hearing at first instance.)

Q. Whether upon the proper construction of Clause G.28 of the Contract additional sick leave entitlements under the Engineers, etc. (State) Award, the Carpenters, Joiners, etc. (State) Award and the Transport Industry (State) Award fall within the operation of sub-cl. (3) thereof.

A. Yes. In respect of the First, Second, Third, Fifth, Sixth and Seventh Issues: A.

Q. Whether the Arbitrator is entitled in law to award interest upon interest prior to the date of his Award in respect of the monetary sums awarded under the First, Second, Third, Fifth, Sixth and Seventh Issues.

A. No.

B. Q. Whether upon proper construction of the Contract ESR 1005 and Clause G.46 (particularly sub-cl. (5) and (6) thereof) the Arbitrator is entitled in law to award any interest in respect of the monetary sums awarded under the First, Second, Third, Fifth, Sixth and Seventh Issues.

A. Yes. The Arbitrator has power to award simple interest . Paragraph 64 (k)

Q. Whether upon the proper construction of Clause G.28 of Contract ESR 1005: -

(1) there is to be taken into account for the purpose of calculations thereunder the effect on the cost to the contractor of executing the works of -

(i)

shift allowance;

(ii)

wash and change time;

(iii)

crib time;

(iv)

overtime;

(v)

long service leave;

(vi)

changes in shift allowance;

(vii)

(Added by consent during hearing) accident make-up pay.

A. No, except to the extent that the awards mentioned in sub-cl. (3) provide for the inclusion of accident make-up pay in the computation of the ordinary hourly rate.

It is unnecessary to answer the remaining questions in the stated case.

3. Remit the Award to the Arbitrator -

(a)

to make a decision on the frustration claim,

(b)

to make calculations in accordance with the answers given to the questions raised in the case stated by him and generally to recalculate and re-assess the claims made by the parties in relation to work performed under the contract, and

(c)

in the event of a finding that the contract was frustrated to resolve the claims of the parties in relation to work performed subsequently to that frustration.

4. The respondent pay 70 per cent of the appellant's costs of the proceedings before Ash J., and the appeals to the Court of Appeal and to this Court.

Action No. 72 of 1981

1. Set aside the order of Ash J. and the order of the Court of Appeal.

2. Strike out the action for want of jurisdiction.