Dewu Pty Ltd v Fabiano [2015] NSWSC 1915

Dewu Pty Ltd v Fabiano [2015] NSWSC 1915

The contract included the quotation and schedules, and the parties adopted the amended schedule of payment by conduct or Dewu was estopped from denying it. Mr Fabiano completed the stages necessary to be entitled to the relevant progress payments, and invoice non-compliance did not make payment conditional or justify Dewu's refusal to pay. Dewu's non-payment was a breach enlivening Mr Fabiano's contractual right to suspend, and the suspension notice was validly received. Dewu did not prove significant defects and had no contractual right to require rectification during the valid suspension. Dewu later placed goods on the site in a way that interfered with Mr Fabiano's exclusive...

Jurisdiction
Australia
Judgment Date
09 December 2015
Procedural Posture
Construction Contract Dispute in Equity Technology and Construction List / Principal Judgment After Hearing
Outcome
Judgment for defendant on plaintiff's claim. Judgment for cross-claimant for $511,762.00 plus interest.
Legal Topics
['construction Contract Terms' 'progress Payments' 'suspension of Works' 'defective Workmanship' 'practical Completion' 'repudiation and Termination' 'expert Evidence' 'damages']
['contract' 'construction Law' 'evidence'] ['construction Contract Terms' 'progress Payments' 'suspension of Works' 'defective Workmanship' 'practical Completion' 'repudiation and Termination' 'expert Evidence' 'damages']

Case Brief

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Procedural Posture

Construction Contract Dispute in Equity Technology and Construction List / Principal Judgment After Hearing

Legal Issues

  1. 1 ['What were the terms of the contract between Dewu Pty Ltd and Mr Fabiano, including whether the quotation, preliminaries and labour schedule, and schedule of payment formed part of it.' 'Whether the parties adopted the amended schedule of payment.' 'Whether Dewu failed to pay amounts due under the contract, including whether the progress payment schedule applied, whether the work had reached the required stage, and whether non-compliant invoices entitled Dewu to withhold payment.' 'Whether Mr Fabiano validly suspended the works under the contract.' 'Whether Dewu was entitled to require rectification of allegedly defective work.' 'Whether Dewu retook possession of the site so as to trigger practical completion under cl 22(f) of the contract.' "Whether Dewu's or Mr Fabiano's purported termination of the contract was valid." 'Whether Dewu proved its claim for damages.' 'Whether Mr Fabiano proved his cross-claim, and in what amount.']

Ratio Decidendi

The contract included the quotation and schedules, and the parties adopted the amended schedule of payment by conduct or Dewu was estopped from denying it. Mr Fabiano completed the stages necessary to be entitled to the relevant progress payments, and invoice non-compliance did not make payment conditional or justify Dewu's refusal to pay. Dewu's non-payment was a breach enlivening Mr Fabiano's contractual right to suspend, and the suspension notice was validly received. Dewu did not prove significant defects and had no contractual right to require rectification during the valid suspension. Dewu later placed goods on the site in a way that interfered with Mr Fabiano's exclusive...

Court Disposition

Judgment for defendant on plaintiff's claim. Judgment for cross-claimant for $511,762.00 plus interest.

Orders

  • ["Direct entry of judgment for the defendant on the plaintiff's claim." 'Direct entry of judgment on the cross-claim for the cross-claimant against the cross defendant in the sum of $511,762 together with interest.' 'Stand the proceedings over to 9.30am on 15 December 2015 with the parties to bring in an agreed or...