Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151 Hearing dates: 15 September 2016 Decision date: 23 June 2017 Before: Beazley ACJ at [1],
McColl JA at [2],
Macfarlan JA at [146]Decision: Appeal dismissed with costs.
Catchwords: BUILDING AND CONSTRUCTION – subcontract for renovation works – payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – where variations directed by principal after Date for Practical Completion – where Date of Practical Completion 114 days late – where principal sought to reduce payment claim to nil by way of set-off based on liquidated damages claim for delayed completion
ADMINISTRATIVE LAW – procedural fairness – where adjudicator rejected liquidated damages claim – whether adjudicator applied prevention principle – whether application of prevention principle denial of procedural fairnessLegislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedures Rules 2005 (NSW)Cases Cited: 620 Collins Street Pty Ltd v Abigroup Contractors Pty Ltd (No 2) [2006] VSC 491
Abel Point Marina (Whitsundays) Pty Ltd v Uher [2006] QSC 295
Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349
Built Environs Pty Ltd v Tali Engineering Pty Ltd [2013] SASC 84
Cardinal Project Services Pty Ltd v Hanave Pty Ltd (2011) 81 NSWLR 716; [2011] NSWCA 399
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190
Clarence Street Pty Ltd v Isis Projects Pty Ltd (2005) 64 NSWLR 448; [2005] NSWCA 391
Falgat Constructions Pty Ltd v Equity Australia Corp Pty Ltd (2005) 62 NSWLR 385; [2005] NSWCA 49
Gaymark Investments Pty Ltd v Walter Construction Group Ltd (1999) 16 BCL 449; [1999] NTSC 143
Gipping Construction Ltd v Eaves Ltd [2008] EWHC 3134 (TCC)
Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) (2009) 26 VR 172; [2009] VSC 426
Hawkins Construction (Aust) Pty Ltd v Mac’s Industrial Pipework Pty Ltd [2002] NSWCA 136
Holme v Guppy (1838) 150 ER 1195; 3 M&W 387
John Holland Pty Ltd v Roads and Traffic Authority of New South Wales [2007] NSWCA 140
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140
Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No 2) [2007] EWHC 447
Musico v Davenport [2003] NSWSC 977
Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (in liq) (2005) 64 NSWLR 462; [2005] NSWCA 409
Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd [2012] 1 Qd R 525; [2011] QCA 22
Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd [1970] 1 BLR 111
Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd [2002] NSWCA 211; (2002) 18 BCL 322
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Re…
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Details
- Case
- [2017] NSWCA 151
- Decision Date
CaseChat Overview and Summary
The dispute in *Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd* concerned a payment claim made by DDI Group Pty Ltd (the respondent) under the *Building and Construction Industry Security of Payment Act 1999* (NSW) for renovation works carried out for Probuild Constructions (Aust) Pty Ltd (the appellant). The appellant sought to reduce the payment claim to nil by claiming set-off for liquidated damages due to the respondent's alleged delay in completing the works. The matter came before the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the adjudicator, in rejecting the appellant's claim for liquidated damages, had wrongly applied the prevention principle, and if so, whether this constituted a denial of procedural fairness to the appellant. The court also considered the impact of variations directed by the principal after the date for practical completion and the fact that practical completion was ultimately achieved 114 days late.
The Court of Appeal held that the adjudicator had correctly applied the prevention principle. This principle dictates that a party cannot rely on a breach of contract by the other party to found a claim for damages if the first party's own conduct prevented the other party from performing their obligations. In this instance, the appellant's direction of variations after the date for practical completion was found to have prevented the respondent from achieving practical completion by the stipulated date. Consequently, the appellant was not entitled to claim liquidated damages for the delay. The court found no denial of procedural fairness, as the appellant had been given an opportunity to present its case regarding the liquidated damages claim.
The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
The primary legal issues before the Court of Appeal were whether the adjudicator, in rejecting the appellant's claim for liquidated damages, had wrongly applied the prevention principle, and if so, whether this constituted a denial of procedural fairness to the appellant. The court also considered the impact of variations directed by the principal after the date for practical completion and the fact that practical completion was ultimately achieved 114 days late.
The Court of Appeal held that the adjudicator had correctly applied the prevention principle. This principle dictates that a party cannot rely on a breach of contract by the other party to found a claim for damages if the first party's own conduct prevented the other party from performing their obligations. In this instance, the appellant's direction of variations after the date for practical completion was found to have prevented the respondent from achieving practical completion by the stipulated date. Consequently, the appellant was not entitled to claim liquidated damages for the delay. The court found no denial of procedural fairness, as the appellant had been given an opportunity to present its case regarding the liquidated damages claim.
The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed with costs.
Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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