Canterbury-Bankstown Council v Payce Communities Pty Ltd [2022] NSWCA 74

Canterbury-Bankstown Council v Payce Communities Pty Ltd [2022] NSWCA 74

The appeal was allowed in part in respect of the builder's margin—Payce’s entitlement to an additional 10% margin was not established by evidence for certain variations; otherwise, the judgment in favour of Payce on variation claims, scope determination, GST exclusion from restitution, and rejection of claims for additional consultancy and architect fees was correct. The cross-appeal was dismissed as Payce was not entitled to recover additional fees beyond the contract price.

Jurisdiction
Australia
Judgment Date
19 May 2022
Procedural Posture
Appeal and Cross Appeal / Court of Appeal Decision
Outcome
Appeal allowed in part; cross-appeal dismissed.
Legal Topics
['contract Variations' 'scope of Works' "builder's Margin" 'gst' 'restitution' 'consultancy Fees' 'acoustic Insulation' 'hearing Loop' 'adjudication' 'interpretation of Agreements']
['building and Construction Law' 'contract Law'] ['contract Variations' 'scope of Works' "builder's Margin" 'gst' 'restitution' 'consultancy Fees' 'acoustic Insulation' 'hearing Loop' 'adjudication' 'interpretation of Agreements']

Case Brief

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Procedural Posture

Appeal and Cross Appeal / Court of Appeal Decision

Legal Issues

  1. 1 ['Whether claimed variations fell within the contractual scope of works' 'Entitlement to builder’s margin on variations' 'Correct calculation of sums payable excluding GST' 'Entitlement to reimbursement for consultancy and architect fees' 'Scope and valuation of variations for mechanical, lighting, ceiling, acoustic insulation, and hearing loop']

Ratio Decidendi

The appeal was allowed in part in respect of the builder's margin—Payce’s entitlement to an additional 10% margin was not established by evidence for certain variations; otherwise, the judgment in favour of Payce on variation claims, scope determination, GST exclusion from restitution, and rejection of claims for additional consultancy and architect fees was correct. The cross-appeal was dismissed as Payce was not entitled to recover additional fees beyond the contract price.

Court Disposition

Appeal allowed in part; cross-appeal dismissed.

Orders

  • ['Appeal allowed in part.' 'Vary declaration (1) made on 18 May 2021 by substituting for the figure $1,068,304.75 the figure $1,020,601.46, and substituting for the figure of $255,728.99 in order (2) the figure of $303,432.28.' 'Otherwise dismiss the appeal.' 'Dismiss the cross-appeal.' "Order that the appellant pay...