Tresedar Pty Ltd v Property Builders (Constructions) Pty Ltd (In Liquidation)

The case involved Tresedar Pty Ltd, the plaintiff, and Property Builders (Constructions) Pty Ltd, the defendant, which was in liquidation. The dispute was centred around whether a settlement deed constituted a "construction contract" under the Building and Construction Industry Security of Payment Act 1999 (NSW) and whether a payment made under the deed was a "progress payment". The matter was heard in the Supreme Court of New South Wales.

The court had to determine several key legal issues. Firstly, whether the settlement deed was a "construction contract" under the Act. Secondly, if the deed was a construction contract, whether the payment made under the deed was a "progress payment" within the meaning of the Act. Additionally, the court needed to consider whether an implied term of good faith and cooperation existed between the parties, and whether the conduct of the parties met the threshold for unconscionability. The court also had to evaluate the appropriateness of permitting the plaintiff to amend its claim and the effect of any delay on the defendant's right to a fair opportunity to respond.

The court found that the settlement deed was indeed a "construction contract" under the Act. It held that the payment made under the deed was a "progress payment". The court did not find it necessary to address the implied term of good faith and cooperation, as it did not impact the outcome of the case. The court concluded that neither party had engaged in unconscionable conduct. Regarding the amendment to the claim, the court allowed the amendment despite the delay, as the defendant was not prejudiced by the delay and had sufficient time to respond to the amended claim. The court ultimately ruled in favour of the plaintiff, ordering the defendant to pay the amount claimed, along with interest and costs.

The final orders of the court included a declaration that the settlement deed was a "construction contract" and that the payment made under the deed was a "progress payment". The court ordered the defendant to pay the amount claimed by the plaintiff, along with interest from the date of the payment until the date of judgment and the costs of the application.