Project 4301 Pty Ltd v Buildcarp Constructions Pty Ltd

Case [2022] NSWCATCD 30

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Project 4301 Pty Ltd v Buildcarp Constructions Pty Ltd [2022] NSWCATCD 30
Hearing dates: 10 November 2022
Date of orders: 17 February 2022
Decision date: 17 February 2022
Jurisdiction:Consumer and Commercial Division
Before: D Goldstein, Senior Member
Decision:

1. Buildcarp Constructions Pty Ltd must pay Project 4301 Pty Ltd $55,158.00 immediately.

2. Buildcarp Constructions Pty Ltd must carry out the work referred to in [98] of the reasons within 8 weeks of the date of this order.

3. The parties are at liberty to apply for an extension of the time referred to in order 2, such application to be supported by brief submissions and appropriate evidence.

4. Project 4301 Pty Ltd has leave to renew these proceedings if order 2 is not complied with within the period specified.

5. In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.

6. The costs respondent will have 14 days after the date it receives the application to lodge in the Tribunal and serve on the costs applicant its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.

7. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.

8. Subject to the parties’ submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.

Catchwords:

BUILDING and CONSTRUCTION – Parties to contract – Ostensible authority – Extension of time claims – Practical Completion - Notices – Compliance – Liquidated damages

Legislation Cited:

Home Building Act 1989 (NSW)

Cases Cited:

Dante De Grazia trading as All Sydney Building Services v Nicholas Solomon & Ors [2010] NSWSC 322

Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2015] NSWSC 354

Junker v Hepburn [2010] NSWSC 88

Kapeller v BH Australia Constructions Pty Ltd [2019] NSWCATAP 40

Northside Developments Pty Ltd v Registrar-General [1990] HCA 32; (1990) 170 CLR 146

Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9

Texts Cited:

Nil

Category:Principal judgment
Parties: Project 4301 Pty Ltd (Applicant)
Buildcarp Constructions Pty Ltd (Respondent)
Representation:

Counsel:
B. Ilkovski (Project 4301 Pty Ltd)
M. Klooster (Buildcarp Constructions Pty Ltd)

Solicitors:
Tom Howard Legal (Project 4301 Pty Ltd)
New South Wales Lawyers (Buildcarp Constructions Pty Ltd)
File Number(s): HB 21/02938
HB 21/10258
Publication restriction: Nil

REASONS FOR DECISION

  1. In these proceedings Project 4301 Pty Ltd entered into a NSW Fair Trading Home building contract with Buildcarp Constructions Pty Ltd on 19 November 2018 for a dual occupancy strata title subdivision…

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Details
AGLC
Project 4301 Pty Ltd v Buildcarp Constructions Pty Ltd [2022] NSWCATCD 30
Case
[2022] NSWCATCD 30
Decision Date

CaseChat Overview and Summary

Project 4301 Pty Ltd, the plaintiff, brought an action against Buildcarp Constructions Pty Ltd, the defendant, in the Civil and Administrative Tribunal of New South Wales, seeking a declaration, among other things, that Buildcarp Constructions Pty Ltd was bound by an extension of time clause and had failed to complete practical completion within the stipulated time, as well as claiming liquidated damages and costs. The dispute arose from a building contract between the parties for the construction of a factory. The plaintiff claimed that the defendant had failed to complete the works by the contractual completion date, and subsequently sought liquidated damages for the delay. The defendant argued that the plaintiff had failed to provide proper notices in accordance with the contract and that the plaintiff's director did not have the authority to sign the contract.

The primary legal issues before the court were whether the plaintiff had provided the required notices and if the plaintiff's director had the authority to sign the contract. The court found that the plaintiff had provided the necessary notices and that the defendant had failed to complete the works within the stipulated time. The court also found that the plaintiff's director had ostensible authority to sign the contract, as the defendant had held the plaintiff out as having the authority to do so. The court further held that the defendant was liable for liquidated damages for the delay in completing the works.

The court ordered that Buildcarp Constructions Pty Ltd must pay Project 4301 Pty Ltd $55,158.00 immediately, and that Buildcarp Constructions Pty Ltd must carry out the work referred to in [98] of the reasons within 8 weeks of the date of this order. The parties were at liberty to apply for an extension of the time referred to in order 2, such application to be supported by brief submissions and appropriate evidence. Project 4301 Pty Ltd had leave to renew these proceedings if order 2 was not complied with within the period specified. If a party wished to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application. The costs respondent would have 14 days after the date it received the application to lodge in the Tribunal and serve on the costs applicant its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon. The parties must state in their submissions whether or not they consented to the costs application being determined on the basis of the parties' written submissions and attached documents, if any, without the need for a hearing. Subject to the parties’ submissions, the Tribunal would determine any costs application on the basis of the papers lodged in the Tribunal.

Orders

Orders of the court

1. Buildcarp Constructions Pty Ltd must pay Project 4301 Pty Ltd $55,158.00 immediately.

2. Buildcarp Constructions Pty Ltd must carry out the work referred to in [98] of the reasons within 8 weeks of the date of this order.

3. The parties are at liberty to apply for an extension of the time referred to in order 2, such application to be supported by brief submissions and appropriate evidence.

4. Project 4301 Pty Ltd has leave to renew these proceedings if order 2 is not complied with within the period specified.

5. In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.

6. The costs respondent will have 14 days after the date it receives the application to lodge in the Tribunal and serve on the costs applicant its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.

7. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.

8. Subject to the parties’ submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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