White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277

White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277

The Developer Works Deed, properly construed in its statutory and commercial context, did not confer warranties by PBS or IWS on White; the relevant warranties were for Sydney Water's benefit. The primary judge's finding that White, through Mr Unicomb, instructed IWS not to pursue a gravity-fed underbore solution was supported by objective contemporaneous evidence and was not shown to be erroneous. Given that instruction, White could not establish breach or causative delay based on IWS not propounding the underbore solution. The appeal was therefore dismissed with costs.

Jurisdiction
Australia
Judgment Date
04 November 2020
Procedural Posture
Appeal From Supreme Court of New South Wales, Equity – Technology and Construction List / Court of Appeal Decision
Outcome
Appeal dismissed with costs.
Legal Topics
['contractual Interpretation of Multi Party Deed' 'warranties' 'appellate Review of Factual Findings' 'demeanour Findings' 'delay and Damages' 'developer Works Deed' 'sydney Water Section 73 Certificate']
['contract Law' 'civil Procedure' 'construction Law'] ['contractual Interpretation of Multi Party Deed' 'warranties' 'appellate Review of Factual Findings' 'demeanour Findings' 'delay and Damages' 'developer Works Deed' 'sydney Water Section 73 Certificate']

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Procedural Posture

Appeal From Supreme Court of New South Wales, Equity – Technology and Construction List / Court of Appeal Decision

Legal Issues

  1. 1 ['Whether PBS Holdings Pty Ltd and Illawarra Water & Sewer Design Pty Ltd owed warranties to White Constructions Pty Ltd under the Developer Works Deed, or whether obligations were owed only pursuant to the Fee Proposal.' "Whether the primary judge's finding that Mr Unicomb instructed Mr Edwards not to pursue a gravity-fed underbore design solution was based in part on demeanour findings." 'Whether the primary judge erred in finding that the instruction was given, including as to its timing and terms.' 'Whether it was necessary or appropriate to determine contingent grounds concerning delay, damages and the adviser appointed under Uniform Civil Procedure Rules 2005 (NSW) r 31.54.']

Ratio Decidendi

The Developer Works Deed, properly construed in its statutory and commercial context, did not confer warranties by PBS or IWS on White; the relevant warranties were for Sydney Water's benefit. The primary judge's finding that White, through Mr Unicomb, instructed IWS not to pursue a gravity-fed underbore solution was supported by objective contemporaneous evidence and was not shown to be erroneous. Given that instruction, White could not establish breach or causative delay based on IWS not propounding the underbore solution. The appeal was therefore dismissed with costs.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']