The discussions of the parties at the time of forming the Contract and what they intended when they reached the agreement, are generally irrelevant, when the documents are clear. While documents produced had showed a different type of construction, including the separated verandahs and the absence of the full enclosure, these documents did not form part of the Contract and were not relevant to the enquiry as to what the parties had agreed. Given the reversal of the decision of the District Court on the issue of the Contract, the contingent findings as to liability for the costs of the ERD Court proceedings were also reversed. The matter was remitted to be heard by another Judge in the District Court with the following issues to be determined: • resolution of the McIntyre’s’ cross-action and counterclaim; • costs of the proceedings in the ERD Court; • costs of the proceedings in the Magistrates and District Courts; and • questions of pre and post-judgment interest.
Conclusion The legal fees incurred by the parties in this dispute are not known but will almost certainly exceed by an order of magnitude the quantum of the original contract sum. The intention of one or other of the parties is irrelevant to the meaning of the written contract. Subsequent conduct is irrelevant to the bargain that has been struck. Contractors who construct at variance to the approved plans and specifications run the risk of alienating both their clients and the relevant authorities. This case is a stark reminder of the way in which disputes escalate in magnitude with the passage of time. Prompt attention to dispute resolution, including seeking appropriate expert advice, in the early stages of a dispute, is the most economic and sustainable way of construction contracting.
1 Quality Roofing Services P/L v McIntyre & Anor [2017] SADC 118 [2] McIntyre v Quality Roofing Services Pty Ltd [2019] SASCFC 29 About the author
Tom Grace Partner Construction and Engineering, commercial dispute resolution, environment and planning, administrative law Fenwick elliot grace construction and engineering lawyer