Tresedar Pty Ltd v Property Builders (Constructions) Pty Ltd (In Liquidation) [2014] NSWSC 382

Tresedar Pty Ltd v Property Builders (Constructions) Pty Ltd (In Liquidation) [2014] NSWSC 382

The Settlement Deed was a construction contract, but the $300,000 payment was not a 'progress payment' under the Building and Construction Industry Security of Payment Act 1999 (NSW); thus, PBC was not entitled to suspend work under the Act for its non-payment. Terms of good faith and cooperation were considered implied, but on the facts, PBC did not breach any such term regarding consent to strata registration or variations. Tresedar failed to establish any loss or entitlement to set-off and could not prove damages. PBC was entitled to amounts due under the Settlement Deed and for a proven variation. All other cross-claims and defences failed for lack of evidence or legal basis.

Jurisdiction
Australia
Judgment Date
04 April 2014
Procedural Posture
Principal Judgment / Final Judgment After Hearing
Outcome
Plaintiffs' summons dismissed; judgment for cross-claimant on the cross claim for specified sums.
Legal Topics
['security of Payment' 'implied Terms' 'good Faith in Contracts' 'unconscionable Conduct' 'variation Claims' 'progress Payments' 'suspension of Works']
['building and Construction' 'contract' 'civil Procedure'] ['security of Payment' 'implied Terms' 'good Faith in Contracts' 'unconscionable Conduct' 'variation Claims' 'progress Payments' 'suspension of Works']

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

Principal Judgment / Final Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Settlement Deed is a 'construction contract' within the meaning of the Building and Construction Industry Security of Payment Act 1999 (NSW)" "Whether payment under the deed is a 'progress payment' under the Act" 'Whether a term of good faith and cooperation should be implied into the agreements and whether there was a breach' 'Whether PBC acted unconscionably' 'Entitlement to variation and delay claims under the contract and Settlement Deed' 'Entitlement to set-off for alleged lost opportunity']

Ratio Decidendi

The Settlement Deed was a construction contract, but the $300,000 payment was not a 'progress payment' under the Building and Construction Industry Security of Payment Act 1999 (NSW); thus, PBC was not entitled to suspend work under the Act for its non-payment. Terms of good faith and cooperation were considered implied, but on the facts, PBC did not breach any such term regarding consent to strata registration or variations. Tresedar failed to establish any loss or entitlement to set-off and could not prove damages. PBC was entitled to amounts due under the Settlement Deed and for a proven variation. All other cross-claims and defences failed for lack of evidence or legal basis.

Court Disposition

Plaintiffs' summons dismissed; judgment for cross-claimant on the cross claim for specified sums.

Orders

  • ["The plaintiffs' summons be dismissed." 'Judgment for the cross-claimant on its cross claim against the cross defendants in the sum of $688,220.66.' 'Judgment for the cross-claimant on its cross claim against the first and second cross defendants in the sum of $40,839.19.']