Bettar Holdings Pty Limited v All Sydney Plumbing Pty Limited [2019] NSWSC 940

Bettar Holdings Pty Limited v All Sydney Plumbing Pty Limited [2019] NSWSC 940

The contract appeared regularly executed by the second defendant as guarantor and he gave no evidence to rebut the inference that he assented to it. The first defendant failed to attend the site after 12 October 2016, did not complete the subcontract works by the validly nominated completion date of 26 November 2016, and had no evidenced reasonable cause for suspension. The plaintiff was therefore entitled under the guarantee and indemnity to recover liquidated damages of $297,500 and rounded loss of bargain damages of $487,000, and, having obtained judgments substantially exceeding its offer of compromise, to ordinary costs up to 19 March 2019 and indemnity costs thereafter.

Jurisdiction
Australia
Judgment Date
23 July 2019
Procedural Posture
Equity Commercial List Proceeding Concerning Contract Guarantee and Indemnity Claims / Hearing and Ex Tempore Principal Judgment After No Appearance by the Second Defendant
Outcome
Judgment for the plaintiff against the second defendant for liquidated damages and loss of bargain damages, with costs ordered against the second defendant.
Legal Topics
['liquidated Damages' 'termination Damages' 'guarantee and Indemnity' 'no Appearance' 'costs Following Offer of Compromise']
['contracts' 'civil Procedure'] ['liquidated Damages' 'termination Damages' 'guarantee and Indemnity' 'no Appearance' 'costs Following Offer of Compromise']

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

Equity Commercial List Proceeding Concerning Contract Guarantee and Indemnity Claims / Hearing and Ex Tempore Principal Judgment After No Appearance by the Second Defendant

Legal Issues

  1. 1 ['Whether the second defendant assented to the contract as guarantor despite asserting in his Commercial List Response that he had not signed the contract as guarantor.' 'Whether the first defendant failed to complete the subcontract works by the contractual date for practical completion so as to trigger liquidated damages.' 'Whether the plaintiff validly terminated the subcontract and could recover loss of bargain damages from the guarantor.' 'Whether the plaintiff was entitled to indemnity costs after serving an offer of compromise.']

Ratio Decidendi

The contract appeared regularly executed by the second defendant as guarantor and he gave no evidence to rebut the inference that he assented to it. The first defendant failed to attend the site after 12 October 2016, did not complete the subcontract works by the validly nominated completion date of 26 November 2016, and had no evidenced reasonable cause for suspension. The plaintiff was therefore entitled under the guarantee and indemnity to recover liquidated damages of $297,500 and rounded loss of bargain damages of $487,000, and, having obtained judgments substantially exceeding its offer of compromise, to ordinary costs up to 19 March 2019 and indemnity costs thereafter.

Court Disposition

Judgment for the plaintiff against the second defendant for liquidated damages and loss of bargain damages, with costs ordered against the second defendant.

Orders

  • ['Judgment in favour of the plaintiff against the second defendant, in the sum of $297,500, on account of liquidated damages, under the contract between the plaintiff and the first defendant, dated April 2015.' 'Judgment for the plaintiff against the second defendant, in the further sum of $487,000, on account of...