Grandview Ausbuilder Pty Ltd v Budget Demolitions and Excavations Pty Ltd (No 2)

Grandview Ausbuilder Pty Ltd brought an action against Budget Demolitions and Excavations Pty Ltd, alleging breaches of contract and seeking various forms of relief including liquidated damages for delay, damages for failure to complete contract works, restitution for overpayments, and an entitlement to set-off debts due to the defendant. Budget Demolitions and Excavations Pty Ltd applied to strike out certain claims and also sought leave to tender a deed of company arrangement and an affidavit from the administrator. The court was required to decide whether Grandview Ausbuilder Pty Ltd's claims had no reasonable cause of action or defence and whether they tended to cause embarrassment, confusion or delay or were an abuse of the court's process. The court also needed to determine whether the proceedings should be transferred to the Technology and Construction List and whether leave should be granted to tender the deed of company arrangement and the administrator's affidavit.

The court found that Grandview Ausbuilder Pty Ltd's claims for liquidated damages for delay and restitution for overpayments were struck out because they had no reasonable cause of action. However, the claims for damages for failure to complete contract works and an entitlement to set-off debts due to the defendant were allowed to proceed. The court found that the proceeding should not be transferred to the Technology and Construction List as it was uncertain whether they would remain in the Supreme Court of New South Wales. The court granted leave to tender the deed of company arrangement but refused leave to tender the administrator's affidavit as it was of limited probative value. The court found that Budget Demolitions and Excavations Pty Ltd was not granted leave under s 444E(3) of the Corporations Act 2001 to bring its cross-claim and proceed with the motion for judgment. However, judgment was ordered on condition that Budget Demolitions and Excavations Pty Ltd was not entitled to execute against Grandview Ausbuilder Pty Ltd's assets.

The court ordered that the claims for liquidated damages for delay and restitution for overpayments be struck out, and that the claims for damages for failure to complete contract works and an entitlement to set-off debts due to the defendant be allowed to proceed. The court also granted leave to tender the deed of company arrangement and refused leave to tender the administrator's affidavit. Judgment was ordered on condition that Budget Demolitions and Excavations Pty Ltd was not entitled to execute against Grandview Ausbuilder Pty Ltd's assets.