Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWSC 1302

Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWSC 1302

The referee's report (except for two sentences) was adopted: clause 9.10 applied and, in absence of the required consent/notice/written agreement, deemed practical completion occurred on 23 August 2004; contract did not entitle plaintiffs to liquidated damages as only compensatory damages up to a capped amount were recoverable, and no such loss was proven; plaintiffs had repudiated the contract on 14 January 2005, and by excluding Parkline from site could not recover substantial rectification costs, especially given failures of proof as to what defects were attributable to Parkline or what reasonable rectification would cost. Only nominal damages against Parkline were awarded. Claims...

Jurisdiction
Australia
Judgment Date
30 November 2009
Procedural Posture
Building Dispute (equity Division, Technology & Construction List) / Judgment on Adoption of Referee's Report After Reference of Whole Proceedings Under Court Orders
Outcome
Referee's report (save for parts of paragraph 250) adopted; judgment for 1st defendant (Parkline) on cross-claim; nominal damages of $10 to plaintiffs; set off; judgment for 2nd defendant (Quirk) on plaintiffs' claims; costs to be determined.
Legal Topics
["adoption of Referee's Report" 'practical Completion Under Building Contracts' 'liquidated Damages' 'repudiation of Contract' 'rectification of Defects' 'statutory Warranties (home Building Act 1989)' 'measure of Damages' 'onus of Proof' "architect's Duties"]
['construction Law' 'contract Law' 'civil Procedure'] ["adoption of Referee's Report" 'practical Completion Under Building Contracts' 'liquidated Damages' 'repudiation of Contract' 'rectification of Defects' 'statutory Warranties (home Building Act 1989)' 'measure of Damages' 'onus of Proof' "architect's Duties"]

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Procedural Posture

Building Dispute (equity Division, Technology & Construction List) / Judgment on Adoption of Referee's Report After Reference of Whole Proceedings Under Court Orders

Legal Issues

  1. 1 ["Whether referee's report should be adopted in whole or part" 'Proper construction and operation of clause 9.10 (Occupation before Practical Completion) of JCC-D 1994 contract' 'Entitlement to liquidated damages/measure of damages for delay' 'Entitlement to damages for rectification of defects where contract repudiated and builder excluded from site' "Architect's duty to warn about contract provisions and consequences of early occupation" 'Effect of statutory warranties under Home Building Act 1989 (NSW)']

Ratio Decidendi

The referee's report (except for two sentences) was adopted: clause 9.10 applied and, in absence of the required consent/notice/written agreement, deemed practical completion occurred on 23 August 2004; contract did not entitle plaintiffs to liquidated damages as only compensatory damages up to a capped amount were recoverable, and no such loss was proven; plaintiffs had repudiated the contract on 14 January 2005, and by excluding Parkline from site could not recover substantial rectification costs, especially given failures of proof as to what defects were attributable to Parkline or what reasonable rectification would cost. Only nominal damages against Parkline were awarded. Claims...

Court Disposition

Referee's report (save for parts of paragraph 250) adopted; judgment for 1st defendant (Parkline) on cross-claim; nominal damages of $10 to plaintiffs; set off; judgment for 2nd defendant (Quirk) on plaintiffs' claims; costs to be determined.

Orders

  • ['The report of the referee, the Honourable Mr Robert Hunter QC dated 30 April 2009 be adopted, except for the last two sentences of para [250];' 'Judgment for the plaintiffs against the first defendant in the sum of $10;' "Judgment for the cross-claimant (first defendant) against the cross-defendants (plaintiffs)...