Conditionex Design & Construct Pty Ltd trading as Conditionex Mechanical Services v Nationwide Builders Pty Ltd (No 2)

[2022] NSWDC 320

District Court

New South Wales

Medium Neutral Citation:	Conditionex Design & Construct Pty Ltd trading as Conditionex Mechanical Services v Nationwide Builders Pty Ltd (No 2) [2022] NSWDC 320
Hearing dates:	5 August 2022
Date of orders:	5 August 2022
Decision date:	05 August 2022
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	See paragraph [6] for orders
Catchwords:	PROCEDURAL ORDERS – appointment of a Referee to report on building work the subject of a cross-claim pursuant to UCPR r 20.14 and ancillary orders
Legislation Cited:	Uniform Civil Procedure Rules 2005, Division 3 of Pt 20, r 20.14, r 20.20, r 28.2
Cases Cited:	Conditionex Design & Construct Pty Ltd trading as Conditionex Mechanical Services v Nationwide Builders Pty Ltd [2022] NSWDC 166
Category:	Procedural rulings
Parties:	Conditionex Design & Construct Pty Ltd trading as Conditionex Mechanical Services (Plaintiff) Nationwide Builders Pty Ltd (Defendant)
Representation:	Counsel: Ms C Gazi, Solicitor (Plaintiff) Ms N Dewan (Defendant) Solicitors: Eden King Lawyers (Plaintiff) Law Bridge Lawyers & Consultants (Defendant)
File Number(s):	2020/333882
Publication restriction:	None

Judgment

1. On 26 May 2022, judgment on a separate question was entered in favour of the plaintiff in the sum of $119,224.78 in respect of monies owing by the defendant in respect of unpaid building works carried out by the plaintiff.

2. On that date, the defendant’s cross-claim was not ready to proceed, particularly due to the lack of a Scott Schedule. In those circumstances, pursuant to the Uniform Civil Procedure Rules (“UCPR”) r 28.2, the cross-claim was stood over to be heard as a separate question: Conditionex Design & Construct Pty Ltd trading as Conditionex Mechanical Services v Nationwide Builders Pty Ltd [2022] NSWDC 166.

3. On 21 June 2022, as part of consequential case management, the parties were required to attend to the preparation and completion of a Scott Schedule and to appear at a supervisory directions hearing on 7 July 2022.

4. On 7 July 2022, Mr Tim Sullivan was nominated as the Referee to report on separate questions. The parties were required to prepare and file a Scott Schedule by 13 July 2022 and to identify the questions to be directed to the Referee.

5. Today, the Scott Schedule was made available to the Court for consideration as were the draft questions for the Referee.

Orders

6. On reviewing those matters, I make the following orders:

1. Pursuant to rule 20.14 of the Uniform Civil Procedure Rules, the matters referred to in the Schedule to these reasons are referred to Mr Tim Sullivan of Contrax Group for enquiry and report.

2. The parties are jointly and severally liable to the Referee for his fees.

3. The parties are to deliver to the Referee a copy of this order together with a copy of Division 3 of Pt 20 of the UCPR.

4. I direct that:

1. subject to paragraphs (b) and (c), the provisions of UCPR r 20.20 will apply to the conduct of the proceedings under the reference;

2. the Referee is to consider and implement the manner of conducting the proceedings under the reference to enable a just determination to be made without undue formality or delay including, if the Referee thinks fit:

1. the making of inquiries by telephone;

2. site inspection;

3. inspection of plant and equipment;

4. communication with experts retained on behalf of the parties;

5. communication with the parties' legal representatives;

3. the evidence in chief before the Referee is to be given by way of the written statements or affidavits served in the proceedings;

4. except as set out in (b) above, all applications for additional orders with respect to pleadings or evidence are to be made to the Court.

5. The reference will commence on 8 August 2022 unless otherwise ordered by the Referee.

6. The Referee is to submit his report to the Court in accordance with UCPR r 20.23 addressed to the Registrar of the District Court on or before 16 September 2022.

7. If the Referee is unable to comply with the order for delivery of the report to the Court by the date in sub-paragraph (6) above, the Referee is to provide an interim report to the Judicial Registrar setting out the reasons for such inability and make an application to extend the time within which to deliver the report to the Court.

8. Grant liberty to the Referee or any party to seek directions with respect to any matter arising in proceedings under the reference upon application to the Court through my Associate on 3 days’ notice.

9. If necessary, any application to amend these orders or the content of the Schedule, is to be made by an order of the Court. This applies to an amendment made by agreement or on a contested basis.

10. Costs of the cross-claim and the reference are reserved.

11. The proceedings are stood over for directions before me at 10.00am on 12 October 2022.

**********

Schedule

1. Whether the plaintiff / cross-defendant (Conditionex) was under an obligation to undertake, perform and/or rectify any of the works listed in the Scott Schedule pursuant to the Canley Heights Subcontract, Villawood Subcontract and/or Penrith Subcontract (Subcontracts)?

2. Whether any of the work performed by Conditionex pursuant to the Subcontracts was defective, incomplete, or performed in breach of the terms of the Subcontracts?

3. Whether Conditionex has failed to undertake, perform, and/or rectify any of the works listed in the Scott Schedule in accordance with the terms of any of the Subcontracts, the Building Code of Australia and Australian standards, the Australian fire safety standards, the statutory warranties contained in the Home Building Act 1989 (NSW), and/or common law duties?

4. Whether there were any defective or incomplete works, or works performed in breach of the terms of the Subcontracts which were communicated to Conditionex by the defendant / cross-claimant (Nationwide) prior to the expiry of the defects liability period or the commencement of these proceedings or at all and which Conditionex failed to rectify?

5. What impact, if any, does the 12-months defects liability period or the limitation period under the Home Building Act 1989 (NSW) have on Conditionex's obligations to undertake or rectify any defective or incomplete works, or works performed in breach of the terms of the Subcontracts?

6. Whether Nationwide failed to communicate to Conditionex any defective and/or incomplete works prior to engaging a third party to carry out or rectify the defective or incomplete works, or at all, and in doing so has Nationwide acted unreasonably?

7. Whether Nationwide has suffered any relevant loss and damage as a result of any breach by Conditionex or at all?

8. What is the quantum of damages (if any) for rectification of any defective and/or incomplete works by Conditionex which ought to be deducted from the amounts payable under the Subcontracts, and/or otherwise awarded to Nationwide?