The case concerned the fit out, plastering and ceiling works at the new NAB offices at Docklands.
The Plaintiff, a plastering subcontractor, alleged that the Defendant, the head contractor, was guilty of misleading and deceptive conduct contrary to s 18 of the Australian Consumer Law (“Consumer Law”) by providing a construction program with the tender documentation which did not take into account significant structure and facade procurement delays which were known to the Defendant. The Plaintiff alleged that it priced the works based on the time, manner and sequence of works prescribed in the construction program. The Plaintiff alleged that these delays would preclude the Plaintiff's works from being able to be commenced in the time and manner prescribed in the construction program and that, had it been informed of the Defendant's structure and facade procurement delays, it would not have accepted the contractual risk allocation in the contract and not proceeded with the works and entered into the subcontracts.
The Defendant argued among other things that clause 46.3 of the subcontracts operated to exclude liability for such a claim in the event that the Plaintiff did not give a compliant notice within the time prescribed.
It was common ground that a prescribed notice had not been served within the time limit set out in the contract.
The Judge in charge of the TEC List made orders referring the matter to a Special Referee for determination.