Core Building Group Pty Ltd v Dickson Developments

[2024] ACTSC 93

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Core Building Group Pty Ltd v Dickson Developments Precinct 5 Pty Ltd

Citation: 

[2024] ACTSC 93

Hearing Date: 

5 April 2024

Decision Date: 

8 April 2024

Before:

McCallum CJ

Decision: 

The application is dismissed.

Catchwords: 

CIVIL LAW – PRACTICE AND PROCEDURE – Application to strike out pleading – whether pleading disclosed any reasonable cause of action or was frivolous, scandalous, unnecessary and/or vexatious – building contract – where developer served notice certifying date of practical completion 175 days after contractual date triggering builder’s liability for liquidated damages  – where builder alleges superintendent represented notice would not be relied upon – where developer later called on security bond for liquidated damages in reliance on notice – whether pleading disclosed any reasonable case that builder suffered any loss

Legislation Cited: 

Building and Construction Industry (Security of Payment) Act 2009 (ACT)

Competition and Consumer Act 2010 (Cth), s 236

Court Procedures Act 2004 (ACT), s 5A

Court Procedures Rules 2005 (ACT), r 425(1)

Cases Cited: 

Core Building Group Pty Ltd v Dickson Developments Precinct 1 Pty Ltd [2023] ACTSC 202

Core Building Group Pty Ltd v Dickson Developments Precinct 1 Pty Ltd (No 2) [2023] ACTSC 221

Dickson Developments Precinct 5 Pty Ltd v Core Building Group Pty Ltd [2024] FCA 86

Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132; 19 ACTLR 238

Parties: 

Core Building Group Pty Ltd ( Plaintiff)

Dickson Developments Precinct 5 Pty Ltd ( First Defendant)

Johnny Roso ( Second Defendant)

Marinko Vukoja ( Third Defendant)

Representation: 

Counsel

D Cook SC with W Chan ( Plaintiff)

M Dempsey SC with B Buckland ( Defendants)

Solicitors

Crisp Law ( Plaintiff)

HFW Australia ( Defendants)

File Number:

SC 346 of 2023

McCALLUM CJ:       

EX TEMPORE REASONS (REVISED)

1․Dickson Developments Precinct 5 Pty Ltd retained Core Development Group Pty Ltd as the builder for a development in the suburb of Dickson.  Their contractual relationship was governed by an agreement titled the “Design and Construct Agreement Mulberry” entered into on 6 September 2019.  In this judgment, I refer to the parties to that agreement as the developer and the builder respectively.

2․The agreement required the builder to achieve practical completion of the works 24 months from the start date.  The original date for practical completion on that basis was 3 November 2021.  That was extended, in accordance with the agreement, to 9 November 2021.  There was a liquidated damages clause which provided that, if the builder failed to bring the works to practical completion by the date for practical completion, it was required to pay or allow the developer the sum of $24,000 for every day after the date for practical completion: clause 48.1.  The builder was required to provide security for its performance of its duties and obligations under the agreement: clause 16.1.  In accordance with that requirement, securities in the amount of $4,499,796 were provided by the builder in the form of Vero insurance bonds.

3․The agreement provided for…