Conditionex Design & Construct Pty Ltd trading as Conditionex Mechanical Services v Nationwide Builders Pty Ltd (No 3) [2022] NSWDC 565

Conditionex Design & Construct Pty Ltd trading as Conditionex Mechanical Services v Nationwide Builders Pty Ltd (No 3) [2022] NSWDC 565

The defendant/cross-claimant did not discharge the burden of proof on liability or quantum concerning alleged defective works across three projects. Claims were either compromised via settlement agreement or outside relevant defect liability periods. The Referee’s report was thorough and free of manifest error. The cross-claim is dismissed, and the prior stay on the plaintiff’s judgment is lifted.

Parties
Plaintiff/cross Defendant: Conditionex Design & Construct Pty Ltd trading as Conditionex Mechanical Services; Defendant/cross Claimant: Nationwide Builders Pty Ltd
Jurisdiction
Australia
Judgment Date
18 November 2022
Procedural Posture
Civil / Post Referee Report and Cross Claim Determination
Outcome
Defendant's cross-claim dismissed; Referee's report adopted; Stay on plaintiff's judgment lifted; Costs to be determined.
Legal Topics
Defective Building Works, Referee's Report Adoption, Scott Schedule, Measure of Damages, Compromise and Settlement
Building and Construction Defective Building Works Referee's Report Adoption Scott Schedule Measure of Damages Compromise and Settlement

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Parties

Conditionex Design & Construct Pty Ltd trading as Conditionex Mechanical Services

Plaintiff/cross Defendant

Nationwide Builders Pty Ltd

Defendant/cross Claimant

Procedural Posture

Civil / Post Referee Report and Cross Claim Determination

Legal Issues

  1. 1 Should the Referee’s report be adopted to resolve the defendant’s cross-claim regarding alleged defective building works?
  2. 2 Has the defendant/cross-claimant discharged the burden of proof for damages for alleged defects and incomplete works?
  3. 3 Do claims fall outside the defects liability period and/or have they been compromised via settlement agreement?

Ratio Decidendi

The defendant/cross-claimant did not discharge the burden of proof on liability or quantum concerning alleged defective works across three projects. Claims were either compromised via settlement agreement or outside relevant defect liability periods. The Referee’s report was thorough and free of manifest error. The cross-claim is dismissed, and the prior stay on the plaintiff’s judgment is lifted.

Court Disposition

Defendant's cross-claim dismissed; Referee's report adopted; Stay on plaintiff's judgment lifted; Costs to be determined.

Orders

  • Pursuant to rule 20.14 of the Uniform Civil Procedure Rules 2005 (NSW), the Referee's report (Exhibit "B") is adopted to determine disputed cross-claim items.
  • The defendant's cross-claim, as amended 17 August 2021, is dismissed.