Case Reports

Contract — Terms and conditions — Latent conditions — Material change in circumstances

In BMD Major Projects Pty Ltd v Victorian Urban Development Authority [2009] VSCA 221 (7 October 2009), the Victorian Court of Appeal considered whether a Contractor was entitled to recover extra payment for work to deal with latent conditions different from those which the contractor should reasonably have contemplated.  The Appellant claimed that the respondent did not give adequate notice of latent conditions based on delay and that the latent conditions were exacerbated by unexplained delay of respondent.  Held: i) adequate notice given as delay short and area needed to be properly surveyed before material change in physical conditions became apparent; ii) VSC did not err in invoking estoppel as respondent's pleading and particulars sufficiently wide enough to justify decision; and iii) Appeal allowed due to VSC error in applying rate for additional wet based treatment and value of delay caused by latent conditions.