Infinity Constructions Group Pty Limited v Bliss Hire Pty Limited

[2022] NSWDC 25

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

INFINITY CONSTRUCTIONS GROUP PTY LIMITED v BLISS HIRE PTY LIMITED [2022] NSWDC 25

Hearing dates:

17 February 2022

Date of orders:

17 February 2022

Decision date:

17 February 2022

Jurisdiction:

Civil

Before:

Montgomery DCJ

Decision:

(1) Judgement for the plaintiff against the defendant in the sum of $750,000

(2) The defendant pay the plaintiffs costs

Catchwords:

COSTS — Costs assessment — Determination

CIVIL PROCEDURE — Hearings — Ex parte

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) r 29.7

Category:

Principal judgment

Parties:

Infinity Constructions Group Pty Limited, Plaintiff
Bliss Hire Pty Limited, Defendant

Representation:

Counsel:
Mr Sud, Counsel for the Plaintiff
No appearance for the Defendant

Solicitors:
Salim Rutherford Lawyers, Solicitors for the Plaintiff
No appearance for the Defendant

File Number(s):

2021/00242676

Judgment EX TEMPORE

1. HIS HONOUR: Judgment for liability was obtained in the plaintiff’s favour against the defendant on 10 November 2021. By notice of motion, dated 11 October 2021 and filed 12 October 2021, the plaintiff proceeds for judgment against the defendant for damages as assessed, and seeks an order that the defendant pay the plaintiff’s costs.

2. I am satisfied, on the affidavit evidence, of Ms Su Ts’en Johnson, 2 February 2022, and the affidavit of Mr Claridge, of 17 February 2022, that the defendant has, in accordance with the orders of the Court, remained informed by the plaintiff of the obtaining of the judgment, of the callover of the matter on 4 February 2022, before Judge Weber, and of today’s date. The defendant has been served with the whole of the affidavit material upon which the plaintiff today proceeds. In the circumstances, I am prepared to proceed on an ex parte basis, the defendant having elected not to be represented or to otherwise appear today.

3. Indeed, the notifications to the person who has throughout been communicating on behalf of the defendant, a Mr Bliss, include my associate’s email of yesterday, informing of the AVL login procedure.

4. I am satisfied that the defendant is an absent party within the meaning of UCPR 29.7.

5. The affidavit of Mr Orfanos, who is an officer of the plaintiff company authorised to swear the affidavit on its behalf, explains the claim is made only for work falling within the scope of work provided for in the subcontractor agreement between the plaintiff and the defendant made 15 July 2016. That contract, expert reports relied upon by the plaintiff, and other substantial documentation (in total a documentary affidavit and exhibit of approximately 2500 pages) has been efficiently guided through by counsel for the plaintiff. And may I say he has done so in a frank and appropriate manner, given this is an ex parte hearing.

6. In the briefest of summaries, this is essentially a claim by the plaintiff structured upon Mr Orfanos' extraction from a bigger claim brought by another entity, being the owners of the building constructed. He identifies the plaintiff’s claim at para 24 of his affidavit as costs incurred in the form of subcontractor's costs performing rectification works in respect of the works contracted by the defendant. Paragraph 24 specifically refers to past works, the approach of Mr Orfanos to damages concerns also expert quantification of works yet to be performed. Of the claim, I am not satisfied on Mr Orfanos' evidence, only of the item of accommodation expenses for workers performing the defect and completion works.

7. I have explained to Mr Sud of counsel my dissatisfaction is only that the affidavit does not expose that it was reasonable and more efficient to have accommodated Sydney workers at Warners Bay, Newcastle, rather than to have contracted Newcastle workers. In this, I have considered that the defendant itself was a Newcastle contractor.

8. Counsel has argued in favour of accommodation on the basis of an assumption of efficiency in circumstances of rectification and he may not have said it, but I would by common sense recognise, that efficiency and timeliness was deserved because the works were for hydraulic and for fire services. However, whilst that may have been the case, it is not exposed in the affidavit. For those reasons, I have not allowed the items of accommodation claimed in para 20(d) and as a component of the sum described in para 22.

9. Indeed, the plaintiff’s claim on an ex parte basis is well supported in the expert report evidence. That evidence was from Mr McGill in relation to the hydraulic claim. His three reports are dated 12 February 2019, 22 December 2020 and 15 April 2021. The fire services claim is well described in the reports of Mr Harriman, 3 August 2020 and 16 April 2021. Counsel has guided me in a very efficient way through that documentation.

10. In the result, on an exclusive‑of‑GST basis, and the item of worker accommodation having been extracted from both past and future components of the claim, Mr Sud calculates the claim at $1,069,957.43. The plaintiff states that it accepts the $750,000 jurisdiction of the Court and I order judgment for the plaintiff, against the defendant, assessed in the sum of $750,000. I order the defendant to pay the plaintiff’s costs.

ORDERS

11. I make the following orders:

1. Judgement for the plaintiff against the defendant in the sum of $750,000.

2. The defendant pay the plaintiffs costs.

3. Return to the plaintiff Exhibit TO-1 to the affidavit of Mr Theofilos Orfanos dated 7 December 2021.

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Amendments

22 February 2022 - Grammatical corrections

Decision last updated: 22 February 2022