Liquidated damages: Contract specifying nil rate: J-Corp Pty Ltd v Mladenis [2009] WASCA 157

Does a contract that specifies a rate of "NIL DOLLARS ($00.00) per day" for liquidated damages exclude the principal's right to claim from the contractor both liquidated and unliquidated damages?

Facts

The parties to a conventional construction contract completed the annexure to the contract and inserted the words "NIL DOLLARS ($00.00) per day" in specifying the rate for liquidated damages.

The project was delayed and the principal sought to recover unliquidated damages for the contractor's delay. The contractor contended that the contract operated to exclude entirely any liability of the contractor for damages for delay.

Finding

The court held that on the proper construction of the contract the provision did not exclude the principal's right to claim from the contractor unliquidated damages for failing to complete the works by the Date for Practical Completion.