Mick Fabar Constructions Pty Limited as Trustee for the M Fabar Family Trust No 2 v Lingrp Pty Ltd t/as Lindfield Group [2019] NSWSC 158

Mick Fabar Constructions Pty Limited as Trustee for the M Fabar Family Trust No 2 v Lingrp Pty Ltd t/as Lindfield Group [2019] NSWSC 158

The appeal was dismissed because the Local Court's finding that the subcontract was formed on 11 March 2016 and had a commencement date of 11 March 2016 was open on the evidence and involved no error of law; leave was not justified for the related mixed fact and law ground; the construction ground wrongly assumed that the written schedule dates governed; the liquidated damages ground did not arise after the commencement date grounds failed; and MFC was not permitted to raise a new Security of Payment Act point on appeal that had not been run below and might have been met by evidence or different conduct of the case.

Jurisdiction
Australia
Judgment Date
26 February 2019
Procedural Posture
Appeal From Local Court of New South Wales Decision in Building Subcontract Dispute / Supreme Court Determination of Appeal and Application for Leave to Appeal
Outcome
The amended summons commencing an appeal was dismissed; leave to appeal in respect of the ground in paragraph 6 was refused; the plaintiff was ordered to pay the defendant's costs.
Legal Topics
['offer and Acceptance' 'contract Formation' 'contract Construction' 'variation of Commencement and Completion Dates' 'liquidated Damages and Penalties' 'security of Payment Claims' 'new Point on Appeal' 'leave to Appeal']
['contract Law' 'building and Construction' 'civil Procedure' 'local Court Appeals'] ['offer and Acceptance' 'contract Formation' 'contract Construction' 'variation of Commencement and Completion Dates' 'liquidated Damages and Penalties' 'security of Payment Claims' 'new Point on Appeal' 'leave to Appeal']

Case Brief

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Procedural Posture

Appeal From Local Court of New South Wales Decision in Building Subcontract Dispute / Supreme Court Determination of Appeal and Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether the Local Court erred in finding that the subcontract commencement date was 11 March 2016 rather than 1 March 2016.' 'Whether leave should be granted for a ground involving mixed fact and law concerning the commencement date.' 'Whether, on proper construction of the subcontract, the works had the commencement and completion dates stated in the written schedule.' 'Whether the liquidated damages clause was a penalty.' 'Whether MFC should be permitted to raise for the first time on appeal a point that the 22 April 2016 invoice was not a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW).']

Ratio Decidendi

The appeal was dismissed because the Local Court's finding that the subcontract was formed on 11 March 2016 and had a commencement date of 11 March 2016 was open on the evidence and involved no error of law; leave was not justified for the related mixed fact and law ground; the construction ground wrongly assumed that the written schedule dates governed; the liquidated damages ground did not arise after the commencement date grounds failed; and MFC was not permitted to raise a new Security of Payment Act point on appeal that had not been run below and might have been met by evidence or different conduct of the case.

Court Disposition

The amended summons commencing an appeal was dismissed; leave to appeal in respect of the ground in paragraph 6 was refused; the plaintiff was ordered to pay the defendant's costs.

Orders

  • ['The amended summons commencing an appeal filed on 12 February 2016 is dismissed.' "The plaintiff is to pay the defendant's costs as agreed or assessed."]