Mossop Group Pty Ltd v Contek Pty Ltd - [2025] SASCA 101

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MOSSOP GROUP PTY LTD v CONTEK PTY LTD
[2025] SASCA 101
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Auxiliary Justice Mullins)
9 September 2025
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - THE CONTRACT - CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS - VARIATIONS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS
The respondent (Contek) issued proceedings against the appellant (Mossop) for payments due under various of the invoices it had issued to Mossop for its concreting work on two building projects, including for variations to the contractual works. Mossop denied the claimed variations and counterclaimed for various ‘back charges’.
A number of the claims made by the parties were resolved during the course of the proceedings, and the judge determined the 13 claims ultimately in dispute in the amount of $58,685.84 in favour of Contek. The judge later published further reasons and entered judgment, including orders that Mossop pay Contek $194,605.65 and that Mossop pay 75 per cent of Contek’s costs of action.
Mossop appeals on several grounds. Grounds 1 and 2 involve a complaint that the judge erred in entering judgment in an amount which went beyond the resolution of the 13 claims addressed at trial. Grounds 3 and 4 challenge the judge’s approach to the issue of costs, and Grounds 5 and 6 concern the judge’s approach to Contek's failure to provide notice of some variations.
Held, per the Court, refusing leave to appeal on Ground 4, and dismissing the appeal:
1.The judge did not err in entering judgment inclusive of all unpaid amounts pleaded and claimed by Contek.
2.Consequently, costs were awarded on the correct basis that the judgment sum reflected the whole of the disputed amounts pleaded and claimed by Contek.
3.No error has been established in the judge’s conclusion that Mossop did not properly plead or pursue its claim that certain of the variations were not properly notified.

Supreme Court Act 1935 (SA) s 27; District Court Act 1991 (SA) s 8(1), referred to.
Contek Pty Ltd v Mossop Group Pty Ltd [2024] SADC 1; Contek Pty Ltd v Mossop Group Pty Ltd [2024] SADC 163, considered.

MOSSOP GROUP PTY LTD v CONTEK PTY LTD
[2025] SASCA 101
Court of Appeal – Civil: Livesey P, S Doyle JA and Mullins AJA

THE COURT (ex tempore): The appellant (‘Mossop’) was the builder in two construction projects. The first related to an aged care facility in Joslin, known as the Lifecare Roselin Court Stage 1 project (‘the Lifecare project’), and the second related to an Aldi Supermarket in Berri (‘the Aldi project’).
The respondent (‘Contek’) specialises in concreting and was a subcontractor for the Lifecare and Aldi projects.
Contek brought proceedings against Mossop for payments due under various invoices it had issued across the two projects, including for…

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] SASCA 101
Decision Date: 9 September 2025

CaseChat Overview and Summary

Mossop Group Pty Ltd appealed a decision of the trial judge concerning a dispute with Contek Pty Ltd over unpaid invoices related to building works on the Lifecare and Aldi projects. Contek's claim, initially for approximately $197,000 in unpaid invoices, evolved to include 25 invoices for the Lifecare project and five for the Aldi project, many of which related to variations. Mossop denied liability for most of these sums, alleging entitlement to back charges, but eventually admitted owing $30,767.84, which it paid into court. Despite this admission and subsequent agreements on some disputed amounts, the parties continued to dispute the net amount owed under the subcontracts.

The appeal raised two primary grounds concerning the judgment sum and two grounds concerning costs. The grounds relating to the judgment sum alleged that the trial judge erred by entering judgment for an amount that encompassed the broader dispute between the parties, rather than being confined solely to the specific claims resolved at trial. The grounds relating to costs challenged the judge's approach to awarding costs, particularly in relation to an alleged unpleaded claim.

The appellate court dismissed the appeal, finding the appellant's complaints misconceived. The court held that the trial judge was correct to enter judgment reflecting the entire unpaid amount under the contracts, as this represented sums that were in dispute at the commencement of proceedings and remained unpaid at their conclusion. The court reasoned that the agreement on certain undisputed portions during the proceedings did not preclude Contek from obtaining a judgment that included these amounts, especially as they remained unpaid. The court also found no merit in the grounds relating to costs, concluding that the judge's assessment of the parties' relative success properly reflected both the pleaded issues and the practical realities of the litigation.

Consequently, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, the appeal should be dismissed.Background Given the limited nature of the issues in dispute on appeal, it is not necessary to summarise much of the detail addressed by the trial judge in her January and December 2024 reasons. Contek issued these proceedings in June 2018. Contek’s statement of claim sought relief which included payment of a large number of unpaid invoices. As initially formulated, the claim was confined to the Lifecare project and claimed a total of approximately $197,000. The claim identified 30 different invoices in respect of which amounts were said to be payable, including a number which related to variations. By the time of its third statement of claim, dated March 2022, Contek relied upon 25 unpaid invoices in respect of the Lifecare project, 16 of which related to variations; and five unpaid invoices in respect of the Aldi project, three of which related to variations. The total amounts sought in respect of these invoices were approximately $165,000 for the Lifecare project, and approximately $40,000 for the Aldi project. In its defence and cross-claim, Mossop denied any obligation to pay most of the unpaid sums claimed by Contek, and alleged an entitlement to various amounts by way of back charges. Mossop acknowledged that when certain retention monies became payable, and after allowance for about $18,000 for the back charges it claimed, it would owe Contek a net amount of about $9,000. By the time of its amended pleading in May 2020, Mossop had reassessed the claimed variations and back charges and formally admitted that it owed Contek $30,767.84 (inclusive of GST). In April 2021, Mossop paid this amount into Court. However, it did not agree to pay that amount over to Contek. It maintained its denial of any further contractual liability to Contek and its denial that it would ultimately owe anything to Contek. Throughout the course of the interlocutory stages of these proceedings, and indeed during the trial itself, the parties agreed various of the amounts initially in dispute. As mentioned, by the end of the trial, only 13 claims remained in issue.[3] Having identified these disputed claims earlier in her reasons,[4] the judge included the following table at the conclusion of her reasons, setting out both the disputed and determined figures of each these claims:[5][3] Noting that there was ultimately agreement in relation to item B3.1, leaving only 12 claims in dispute.[4] See Tables 1 and 2 in the January 2024 reasons at [9], [14].[5] The January 2024 reasons at [574].Table 12 Although the judge made orders on the day she published her January 2024 reasons reflecting the dollar sums in the above table, her Honour plainly anticipated that there would be further submissions before determining the form of the ultimate judgment. This was apparent from the concluding paragraphs from her Honour’s reasons:[6]For neither the Lifecare nor Aldi subcontracts is the resulting judgment sum simply the product of the value of the discrete variation and back charge claims determined by the Court. There are undisputed unpaid invoiced amounts that need to be taken into account. Some are due to Mossop withholding payment of invoiced amounts due on account of its back charge claims and others are for concessions made during the course of the proceedings as to certain other amounts in dispute. To complicate matters further, amounts were paid into Court by Mossop.As stated above, the parties have not reached final agreement on the impact of their differing positions as to the disputed variation and back charge claims on the adjusted subcontract sums net of payments made by Mossop (either to Contek or into Court) under either the Lifecare or Aldi subcontracts.Whilst there is much common ground, the Court will hear the parties on any remaining dispute as to the net amount due under each of the Lifecare and Aldi subcontracts and interest once the parties have had a proper opportunity to consider the Court’s determination of the disputed (Contek) variation and (Mossop) back charge claims set out in [Table 12].[6] The January 2024 reasons at [572]-[574].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The judge then made orders to the effect set out at the commencement of these reasons. These orders were made in substitution for those that had been made back in January 2024.Grounds 1 & 2: the judgment sum Grounds 1 and 2 involve a complaint that the judge erred in entering judgment in an amount which reflected the broader dispute between the parties, rather than being confined to her Honour’s resolution of the 13 claims addressed at trial. The appellant’s complaints are misconceived. For the reasons explained by the judge, she was correct to enter judgment in terms that addressed the entire amount unpaid under the two contracts. Whilst described as comprised of undisputed and disputed components, both components reflected amounts which were in dispute at the commencement of the proceedings and remained unpaid at the end of the proceedings. Contek pleaded a claim for, and was entitled to, recovery of this combined sum. The fact that the undisputed portions of the unpaid amounts were agreed during the course of the proceedings did not mean that Contek was not entitled to a judgment in terms that reflected these amounts, particularly in circumstances where they remained unpaid. Her Honour’s approach in this respect was entirely orthodox. Whilst interim judgments for lesser amounts were entered in January 2024, these were unorthodox and unnecessary, but did not detract from what was necessary and appropriate by way of final judgment. There was no procedural unfairness given the opportunity to argue the issue after the January 2024 reasons. This is not a case where undisputed amounts were paid, and where any final judgment need not include those amounts because a final judgment is ordinarily exclusive of amounts paid. The appellant complains that Contek did not plead any claim for an adjusted contract sum. Whilst not using these words, the plain substance of what Contek sought, and ultimately obtained, was a determination of the amount it was entitled to under the contracts, as adjusted for the variations and any back charges, and which remained unpaid. Having pleaded a claim that related to all unpaid amounts, there was no reason to deny Contek a judgment which reflected this amount. Whilst the judge made reference to the Court’s statutory powers to grant remedies intended to resolve all disputes between the parties, this is of no consequence in circumstances where the judge did not grant relief which went beyond what was pleaded. There is no merit in Grounds 1 and 2.Grounds 3 & 4: costs Grounds 3 and 4 involve a consequential or related challenge to the judge’s approach to the issue of costs. To the extent that the appellant’s challenge to the judge’s orders was merely consequential upon its challenge to the judgment sum, it obviously fails. Further, to the extent that the appellant maintained a separate submission to the effect that the judge erred in assessing costs by reference to an unpleaded claim, it also fails. The judge’s assessment of the parties’ relative measures of success properly reflected both the pleaded issues and the practical reality of the proceedings.

Ratio Decidendi

Legal Principle Established

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