Bannister & Hunter v Transition Resort Holdings (No.3) [2013] NSWSC 1943

Bannister & Hunter v Transition Resort Holdings (No.3) [2013] NSWSC 1943

BH breached its duties in design, supervision, project management, and contract administration by failing to minimise required fill, to call tenders as required, to use appropriate conversion rates for certification, and to adequately monitor performance of other contractors, causing financial loss to Transition quantified in damages. The presence of defective fill required cost-based assessment of damages subject to rectification, which is not precluded by Transition's sale of the land. BH's claim for fees is extinguished by Transition's entitlements to damages (set-off), and Transition's cross-claim succeeds in part. Precise damages for rectification to be resolved by agreement or...

Jurisdiction
Australia
Judgment Date
20 December 2013
Procedural Posture
Principal Judgment / After Final Hearing on Both Claim and Cross Claim, Reasons for Judgment With Directions for Further Orders
Outcome
Plaintiff's claim for fees is dismissed subject to set-off; defendant's cross-claim for damages succeeds in part.
Legal Topics
['building Contracts' 'professional Negligence' 'project Management' 'contract Tenders' 'damages for Defective Work' 'assessment of Damages' 'supervision of Contractors' 'set Off' 'rectification Costs']
['contracts' 'building & Construction' 'damages'] ['building Contracts' 'professional Negligence' 'project Management' 'contract Tenders' 'damages for Defective Work' 'assessment of Damages' 'supervision of Contractors' 'set Off' 'rectification Costs']

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Procedural Posture

Principal Judgment / After Final Hearing on Both Claim and Cross Claim, Reasons for Judgment With Directions for Further Orders

Legal Issues

  1. 1 ['Is BH entitled to fees claimed or are they subject to set-off by Transition?' "Did BH's design work fail to minimise fill, and should road grades have been less than 1%?" 'Was the design defective for lack of pavement box out and optimal cut to fill?' 'Did BH fail to call tenders as required for bulk earthworks, depriving Transition of opportunity for cost savings?' 'Did BH use inappropriate conversion rates and over-certify contractor progress claims, causing loss?' 'Did BH fail to adequately supervise Coffey and Robson regarding fill quality and contract compliance?' 'Was the fill to standard, and is rectification necessary and reasonable given sale of land?']

Ratio Decidendi

BH breached its duties in design, supervision, project management, and contract administration by failing to minimise required fill, to call tenders as required, to use appropriate conversion rates for certification, and to adequately monitor performance of other contractors, causing financial loss to Transition quantified in damages. The presence of defective fill required cost-based assessment of damages subject to rectification, which is not precluded by Transition's sale of the land. BH's claim for fees is extinguished by Transition's entitlements to damages (set-off), and Transition's cross-claim succeeds in part. Precise damages for rectification to be resolved by agreement or...

Court Disposition

Plaintiff's claim for fees is dismissed subject to set-off; defendant's cross-claim for damages succeeds in part.

Orders

  • ['Parties to confer and bring in agreed orders to give effect to these reasons, or return for directions.' 'Matter stood over for parties to attempt agreement on rectification damage amount; if not agreed, issue to be referred out for assessment.' 'Parties to address any computational errors and mechanism for costs...