Construction Law Review

Construction Law Review – September

Please refer below to our Construction Law Review, selected from AR Conolly’s Daily Bulletins covering Insurance, Banking, Construction & Government.

Cappello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021
Supreme Court of New South Wales
Ball J
Construction contract – first defendant agreed ‘to undertake renovation work’ at plaintiffs’ residence – second defendant was a director of first defendant – second defendant ‘supervised the building work’ – whether first defendant ‘validly terminated’ contract on basis of ‘non-payment of part of invoice’ – whether first defendant, subject to any set-offs of plaintiffs, was entitled to recover invoice’s balance and sum for ‘work performed but not invoiced’ before contract was terminated – whether plaintiffs ‘entitled to damages for delay’ in building work’s completion and/or for defects and amounts allegedly overcharged by first defendant – whether second defendant liable for damages – quantum meruit – implied warranties – liquidated damages – ss18B & 18G Home Building Act 1989 (NSW) – held: judgment for first defendant against plaintiffs – plaintiff’s claim against second defendant dismissed.

One Pro Baulkham Hills Pty Ltd v Ming Tian Real Property Pty Ltd [2020] NSWSC 1043
Supreme Court of New South Wales
Stevenson J
Contract – consumer law – plaintiff principal and defendant contractor entered building contract for townhouses’ construction on property which developer owned – contractor did not build the townhouses – by “Deed of Termination” parties ’agreed to “mutually terminate”’ building contract – plaintiff sought damages from defendant for “twin failures” – the alleged twin failures were failures ’to provide “contractor’s security” by way of a bank guarantee and evidence of home warranty insurance’ – plaintiff also sought damages from defendant’s sole director for alleged misleading or deceptive conduct – whether conditions precedent satisfied – whether exclusion clause survived termination – held: plaintiff did not establish damage due to any breach by defendant, or loss due to any misleading or deceptive conduct by director – proceedings dismissed.
View Decision

Michael Kuehn & Jennifer Kuehn v Masterton Homes (NSW) Pty Ltd t/as Masterton Homes (NSW) Pty Ltd [2020] NSWSC 1049
Supreme Court of New South Wales
Hammerschlag J
Contract – compromise – proceedings concerning whether plaintiffs had compromise ‘in binding fashion’ claim against first defendant ‘home builder’ in NSW Civil & Administrative Tribunal – plaintiffs denied ‘binding compromise’ had been reached – plaintiffs contended that if binding compromise reached, compromise had occurred due to breaches by plaintiffs’ lawyers – plaintiffs had joined lawyers as defendant – whether plaintiffs had compromised claims such that they could not claim against first defendant – held: there was no ‘binding compromise or settlement’ – proceedings against lawyers dismissed.
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Leeda Projects Pty Ltd v Zeng [2020] VSCA 192
Court of Appeal of Victoria
Tate, Kaye & McLeish JJA
Contract – respondent engaged applicant ‘to perform building works for the fitting out of a private art gallery’ – applicant, in breach of contract, did not complete works ‘within a reasonable time’ – Victorian Civil and Administrative Tribunal awarded ‘only nominal damages’ to applicant – primary judge awarded ‘substantial damages’ to respondent – applicant sought to appeal – ‘appropriate assessment for damages’ for contractual breach causing loss of use of asset – whether assessment to be made ‘by reference to ‘notional’ or ‘wasted’ costs of ownership’ – whether issues concerning ‘mitigation of damages and costs’ should have been remitted to Tribunal – held: appeal allowed – notice of contention allowed.

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