One Pro Baulkham Hills Pty Ltd v Ming Tian Real Property Pty Ltd [2020] NSWSC 1043

One Pro Baulkham Hills Pty Ltd v Ming Tian Real Property Pty Ltd [2020] NSWSC 1043

The proceedings failed because the Principal did not prove damage caused by the Contractor or Mr Dai. The cl 9 conditions precedent were to performance, not formation, and were sequential and cumulative; because the financing conditions precedent in cl 9(a)(ii)(B) were not satisfied when the purported Notice to Proceed was served, that notice was ineffective. The Contractor was therefore not obliged to perform the Work Under Contract or provide evidence of home warranty insurance, and the Principal did not prove what loss was caused by any failure to provide a bank guarantee within a reasonable time. The claimed heads of damage were either unproved, unavailable as loss of bargain damages...

Jurisdiction
Australia
Judgment Date
10 August 2020
Procedural Posture
Equity Technology and Construction List; Building Contract and Australian Consumer Law Claims / Principal Judgment After Hearing
Outcome
Proceedings dismissed with costs.
Legal Topics
['construction of Building Contract' 'conditions Precedent' 'notice to Proceed' "contractor's Security by Bank Guarantee" 'home Warranty Insurance' 'exclusion Clause' 'consequential Loss' 'damages' 'misleading or Deceptive Conduct']
['contracts' 'building and Construction' 'consumer Law'] ['construction of Building Contract' 'conditions Precedent' 'notice to Proceed' "contractor's Security by Bank Guarantee" 'home Warranty Insurance' 'exclusion Clause' 'consequential Loss' 'damages' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Equity Technology and Construction List; Building Contract and Australian Consumer Law Claims / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the conditions precedent in cl 9 of the Building Contract were conditions precedent to formation of the contract or to performance of contractual obligations.' 'Whether the Principal issued an effective Notice to Proceed under cl 9(a)(ii)(D).' 'Whether the conditions precedent to the first drawdown under the Facility Agreement were satisfied for the purposes of cl 9(a)(ii)(B).' 'Whether the Contractor breached obligations to provide a bank guarantee and evidence of home warranty insurance and whether any such breach caused loss.' 'Whether the exclusion clause for consequential loss survived mutual termination of the Building Contract and excluded claimed losses.' "Whether Mr Dai's provision of a non-genuine bank guarantee caused loss by misleading or deceptive conduct under the Australian Consumer Law."]

Ratio Decidendi

The proceedings failed because the Principal did not prove damage caused by the Contractor or Mr Dai. The cl 9 conditions precedent were to performance, not formation, and were sequential and cumulative; because the financing conditions precedent in cl 9(a)(ii)(B) were not satisfied when the purported Notice to Proceed was served, that notice was ineffective. The Contractor was therefore not obliged to perform the Work Under Contract or provide evidence of home warranty insurance, and the Principal did not prove what loss was caused by any failure to provide a bank guarantee within a reasonable time. The claimed heads of damage were either unproved, unavailable as loss of bargain damages...

Court Disposition

Proceedings dismissed with costs.

Orders

  • ['Proceedings dismissed with costs.']