H & M Constructions (NSW) Pty Ltd v Golden Rain Development Pty Ltd (No 4) [2023] NSWSC 925

H & M Constructions (NSW) Pty Ltd v Golden Rain Development Pty Ltd (No 4) [2023] NSWSC 925

The Conditional Certificate had no contractual effect because cl 34.7 did not authorise the Superintendent to issue a conditional certificate and the document did not evidence an actual date on which practical completion was reached. Even if it had contractual effect, it was not conclusive in the litigation. Because no occupation certificate had been issued for the Terraces, practical completion had not occurred. The Builder failed to establish that the Developer induced the relevant assumption for estoppel, failed to make out its pleaded unconscionable conduct case, and failed to show that the Developer prevented performance or the making of extension of time claims. There was therefore...

Jurisdiction
Australia
Judgment Date
09 August 2023
Procedural Posture
Building and Construction Design and Construct Contract Dispute / Principal Judgment
Outcome
Plaintiff builder's case fails; defendant developer entitled to liquidated damages and access to security provided in accordance with the contract.
Legal Topics
['practical Completion' 'certificate of Practical Completion' 'conditional Certificate' 'liquidated Damages' 'security Under Construction Contract' 'prevention Principle' 'australian Consumer Law S 21' 'remediation Conditions' 'occupation Certificate']
['building and Construction' 'contracts' 'estoppel' 'unconscionable Conduct'] ['practical Completion' 'certificate of Practical Completion' 'conditional Certificate' 'liquidated Damages' 'security Under Construction Contract' 'prevention Principle' 'australian Consumer Law S 21' 'remediation Conditions' 'occupation Certificate']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Building and Construction Design and Construct Contract Dispute / Principal Judgment

Legal Issues

  1. 1 ['Whether the Conditional Certificate issued by the Superintendent had contractual effect as a Certificate of Practical Completion under cl 34.7 of the Contract.' 'Whether 7 September 2018 was conclusively certified as the date of practical completion or could be determined by the Court in the litigation.' 'Whether practical completion had occurred when no occupation certificate had been issued for the Terraces.' 'Whether the Developer was estopped from denying that 7 September 2018 was the date to be applied for liquidated damages and delay costs.' 'Whether the Developer engaged in unconscionable conduct within the meaning of s 21 of the Australian Consumer Law.' 'Whether the prevention principle prevented the Developer from claiming liquidated damages.' 'Whether the Developer was entitled to access the Security and recover liquidated damages.']

Ratio Decidendi

The Conditional Certificate had no contractual effect because cl 34.7 did not authorise the Superintendent to issue a conditional certificate and the document did not evidence an actual date on which practical completion was reached. Even if it had contractual effect, it was not conclusive in the litigation. Because no occupation certificate had been issued for the Terraces, practical completion had not occurred. The Builder failed to establish that the Developer induced the relevant assumption for estoppel, failed to make out its pleaded unconscionable conduct case, and failed to show that the Developer prevented performance or the making of extension of time claims. There was therefore...

Court Disposition

Plaintiff builder's case fails; defendant developer entitled to liquidated damages and access to security provided in accordance with the contract.

Orders

  • []