Forrest v Yuncken Builders & Project Managers Pty Limited - [2025] NSWSC 1054

Supreme Court

New South Wales

Medium Neutral Citation: Forrest v Yuncken Builders & Project Managers Pty Limited [2025] NSWSC 1054
Hearing dates: 16 September 2025
Date of orders: 16 September 2025
Decision date: 16 September 2025
Jurisdiction: Equity - Technology and Construction List
Before: Hammerschlag CJ in Eq
Decision:
Application for the determination of separate questions is dismissed.

Catchwords:
CIVIL PROCEDURE — Uniform Civil Procedure Rules 2005 (NSW) r 28.2 — Design and Building Practitioners Act 2020 (NSW) ss 37, 40, Schedule 1 Para 5 — Application for separate determination of questions involving contractual and statutory construction — Where an appeal is likely — Where the principal proceedings are in an advanced state of preparation — Where the Applicant has recently amended its defence which amendment gives rise to the issue sought to be dealt with by the separate questions — HELD — Application for separate determination of questions dismissed

Legislation Cited:
Design and Building Practitioners Act 2020 (NSW) ss 37, 40, Schedule 1 Para 5
Uniform Civil Procedure Rules 2005 (NSW) r 28.2

Cases Cited:
Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Neumann Contractors Pty Ltd v Wyong Shire Council [2011] NSWSC 481
Owners - Strata Plan No 84674 v Pafburn Pty Ltd (2023) 113 NSWLR 105; [2023] NSWCA 301
Roberts v Goodwin (2023) 110 NSWLR 557; [2023] NSWCA 5

Category: Procedural rulings
Parties: John Ewing Forrest (Plaintiff/Respondent)
Yuncken Builders & Project Managers Pty Ltd (First Defendant)
Corben Architects Pty Ltd (Second Defendant/Applicant)
Form Building Certifiers Pty Ltd (Third Defendant)
Representation:
Counsel:
JP Knackstredt (Plaintiff/Respondent)
J Giles SC / M Sheldon (Second Defendant/Applicant)
Solicitors:
Macpherson Kelley (Plaintiff/Respondent)
MinterEllison (Second Defendant/Applicant)

File Number(s): 2023/00465238
Publication restriction: Nil

Ex Tempore JUDGMENT

On 12 August 2011, the plaintiff Mr John Ewing Forrest (Forrest) entered into a written contract with the second defendant architects (the Architects) under which he appointed them to act as architects and project managers for a new house Forrest intended to build on his property at Mosman, a Sydney suburb. The contract comprises a Fee Commission letter, Scope for Works, and Terms and Conditions of Engagement (the Conditions).
Clause 1 of the Conditions is headed Architectural Services and provides that the Architects shall provide the services in the Fee Commission letter in accordance with the Conditions and shall exercise reasonable skill and care in conformity with the normal standards of the practice of architecture.
Clause 11 of the Conditions provides:

11 Type of Loss and Amount of Liability
The liability of CA to the Client arising out of the performance of the Architectural Services, whether under the law of contract or tort shall be limited to the cost of rectifying the Works which are the subject of the Architectural Services and notwithstanding the foregoing, the maximum amount of liability of the Architect to the Client arising out of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 1054
Decision Date: 16 September 2025

CaseChat Overview and Summary

Forrest v Yuncken Builders & Project Managers Pty Limited involved a dispute between Forrest and Yuncken Builders & Project Managers Pty Limited. The case centred on questions of contractual and statutory construction in the context of a building project. The matter was heard in the Supreme Court of New South Wales.

The central legal issue was whether the court should grant an application for the separate determination of certain questions under the Uniform Civil Procedure Rules 2005 (NSW) r 28.2. Specifically, the applicant sought to have issues involving contractual and statutory construction determined separately. The application arose because the principal proceedings were in an advanced state of preparation, and the applicant had recently amended its defence, introducing new issues. The court had to consider the criteria under the Rules and relevant statutory provisions, including sections 37 and 40 of the Design and Building Practitioners Act 2020 (NSW), as well as Schedule 1 Para 5.

The court dismissed the application, holding that the circumstances did not warrant the separate determination of the questions. The court found that an appeal was likely, and the amendment to the defence did not sufficiently justify departing from the usual course of allowing the issues to be resolved in the principal proceedings. The court emphasised the importance of avoiding unnecessary duplication and the potential for confusion in the litigation process. The decision highlighted the need for careful consideration of the factors relevant to applications for separate determinations under the Rules.

No specific final orders were made in this summary. The court's dismissal of the application means that the questions of contractual and statutory construction will be addressed in the context of the ongoing principal proceedings.

Orders