DCT Projects Pty Ltd v Champion Homes Sales Pty Ltd

The appeal concerned a dispute between DCT Projects Pty Ltd (the principal) and Champion Homes Sales Pty Ltd (the builder) arising from a building contract. The principal alleged the builder had engaged in repudiatory conduct by suspending works, while the builder counterclaimed for amounts due under the contract, including extensions of time. The case also involved claims of misleading and deceptive conduct under the *Trade Practices Act 1974* (Cth) concerning the builder's knowledge of the need for retaining walls and provisional sums for rock excavation.

The Court of Appeal was required to determine whether the builder's suspension of works constituted repudiatory conduct, particularly in light of the principal's alleged non-payment and failure to serve a notice to remedy breaches. It also had to consider the validity of the builder's claims for extensions of time and the principal's objections thereto, as well as the nature of a deposit paid under the contract. Furthermore, the court needed to assess whether the builder engaged in misleading or deceptive conduct by failing to disclose its awareness of the need for significant retaining walls prior to the contract's formation, and whether the principal, represented by its own project manager, could recover damages on a "no contract" basis for this alleged conduct.

The court found that the builder's threats to suspend work were made in the context of non-payment by the principal, and that the builder's subsequent suspension of works was justified as a response to the principal's breaches. The court held that the onus was on the principal to prove the work that could have been done, and that the principal had not served a notice requiring the builder to remedy alleged breaches. Regarding extensions of time, the court noted that the principal had not objected when these claims were first made in closing submissions at trial, and it considered the contractual regime for claims and notices. The court also addressed the nature of the deposit, determining it was part of the contract sum. On the misleading and deceptive conduct claim, the court found that while the builder was aware of the need for retaining walls, the principal was represented by its own project manager, and no complaint was made contemporaneously with the need becoming apparent, thus limiting recovery.

The appeal was allowed in part, and the orders of the primary judge were set aside. The Court of Appeal entered judgment in favour of the plaintiff (DCT Projects Pty Ltd) against the first defendant (Champion Homes Sales Pty Ltd) for $61,593.23 and against the second to ninth defendants for $6,843.69 each, with these judgments taking effect on 26 May 2015. The parties were ordered to agree on the calculation of interest on these judgments, or otherwise submit their calculations and submissions for the court to determine. The appellants were ordered to pay 90% of the respondent's costs of the appeal.