Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd [2013] NSWCA 6

Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd [2013] NSWCA 6

The appeal succeeds in respect of the allowance of the margin for variations (no sufficient evidence of 'saving'), requiring that entitlement to such payment be set aside. The damages for delayed completion should be increased to $18,400, following market rent evidence. In all other respects, the primary judge's findings are upheld as the referee's findings on extensions of time were reasonably available on the evidence and the approach to pre-judgment interest was correct.

Jurisdiction
Australia
Judgment Date
11 February 2013
Procedural Posture
Appeal / Judgment on Appeal From Supreme Court (equity Division); Review of Referee Report Adoption and Subsequent Orders
Outcome
Appeal allowed in part; orders varied
Legal Topics
['extensions of Time' 'variations' 'referee Reports' 'damages for Late Completion' 'pre Judgment Interest']
['contracts' 'building and Construction Law' 'civil Procedure' 'damages'] ['extensions of Time' 'variations' 'referee Reports' 'damages for Late Completion' 'pre Judgment Interest']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From Supreme Court (equity Division); Review of Referee Report Adoption and Subsequent Orders

Legal Issues

  1. 1 ["Whether the primary judge erred in adopting the referee's report on extensions of time for practical completion and margin on variations under the contract" 'Appropriate method for assessing damages for late completion of works' 'Entitlement to and commencement date for pre-judgment interest']

Ratio Decidendi

The appeal succeeds in respect of the allowance of the margin for variations (no sufficient evidence of 'saving'), requiring that entitlement to such payment be set aside. The damages for delayed completion should be increased to $18,400, following market rent evidence. In all other respects, the primary judge's findings are upheld as the referee's findings on extensions of time were reasonably available on the evidence and the approach to pre-judgment interest was correct.

Court Disposition

Appeal allowed in part; orders varied

Orders

  • ["Order of primary judge adopting referee's report varied to except allowance under clause 40.5 (margin on variations); Walton's claim on that basis dismissed." 'Damages awarded to Illawarra for late completion increased from $4,000 to $18,400.' 'Directions issued for parties to file agreed minutes or submissions...