Trusted Building Group Pty Ltd v Everitt

[2024] NSWSC 1259

Supreme Court

New South Wales

Medium Neutral Citation:

Trusted Building Group Pty Ltd v Everitt [2024] NSWSC 1259

Hearing dates:

3 October 2024

Date of orders:

3 October 2024

Decision date:

03 October 2024

Jurisdiction:

Equity - Technology and Construction List

Before:

Stevenson J

Decision:

Plaintiff’s claim struck out; judgment for defendants on plaintiff’s claim; judgment for cross-claimants on their cross-claim with damages assessment to be referred out

Catchwords:

BUILDING AND CONSTRUCTION – contract – damages – defects – where plaintiff builder and cross-claimant owners entered contract for construction of duplex – where plaintiff builder made claim for works and variations – where cross-claimant owners made cross-claim for defective works – where owners terminated building contract – where property with partly constructed duplex has been sold

CIVIL PROCEDURE – summary disposal – judgment for cross-claimant owners – where plaintiff builder no longer legally represented – where plaintiff builder failed to comply with orders to serve evidence – where cross-claimant owners sought order striking out plaintiff builder’s claim and judgment on their cross-claim

Category:

Principal judgment

Parties:

Trusted Building Group Pty Ltd (Plaintiff/Cross-Defendant)
Raymond Earnest Everitt (First Defendant/Cross-Claimant)
Christine Joy Everitt (Second Defendant/Cross-Claimant)

Representation:

Counsel:
M Klooster (Defendants/Cross-Claimants)

Solicitors:
Macdessi Lawyers Pty Ltd (Defendants/Cross-Claimants)

File Number(s):

2023/346609

EX TEMPORE JUDGMENT (REVISED)

1. The plaintiff, Trusted Building Group Pty Ltd (the “Builder”), and the defendants, Mr and Mrs Raymond and Christine Everitt (the “Owners”), entered a contract on 5 February 2022, under which the Builder agreed to construct a duplex on the property owned by the Owners in Bombo for a contract sum of a little more than $2 million.

2. The contract provided the project would be completed on or about 27 March 2023.

3. The parties fell out and, on 8 March 2023, the Owners issued a notice of termination. The Owners sold the property earlier this year.

4. On 9 August 2023, the Builder commenced proceedings in the New South Wales Civil and Administrative Tribunal seeking some $563,075.84 in damages for works and variations.

5. In anticipation of the Owners bringing a Cross-Claim against the Builder, which would be for an amount in excess of the Tribunal’s jurisdiction, the proceedings were transferred to this Court on 16 October 2023.

6. The Builder served its List Statement on 19 February 2024. The Owners served their List Response and a Cross-Claim Summons and List Statement on 18 March 2024.

7. In that Cross-Claim, the Owners sought damages.

8. On 4 April 2024, the Court ordered that the Builder serve the evidence upon which it relied and the Owners serve the evidence on which they relied by 31 May 2024.

9. The Owners served their evidence on 13 May 2024.

10. The Builder did not serve its evidence by 31 May 2024 and has not served its evidence since that date.

11. On 24 June 2024, the solicitors for the Builder filed a Notice of Ceasing to Act.

12. On 12 July 2024, the time for the Builder to serve its evidence was extended to 30 August 2024.

13. At a directions hearing on 6 September 2024, there was no appearance for the Builder. I then stood the matter over to 13 September 2024.

14. On 10 September 2024, Mr Waelle Darwiche sent my Chambers an email as follows:

“I hope this email finds you well. I am currently overseas and have attached proof of my situation for your reference.

Given these circumstances, I kindly request an extension of time for the hearing scheduled on 13 September 2024 until the 4^th October 2024 as originally scheduled. If you require further proof of my absence I will gladly provide.

Alternatively, I would greatly appreciate the opportunity to represent myself via AVL. If that is possible, please let me know, and I will ensure to provide the necessary evidence for the matter. Thank you very much for your understanding. I look forward to your response.”

15. Contrary to what Mr Darwiche said in this email, there was no “originally scheduled” hearing on 4 October 2024.

16. On 12 September 2024, my Chambers received an email from a Mr Tehsin El-ech:

“I hope this email finds you well. I, Tehsin El-ech, the director of Trusted Building Group Pty Ltd (ABN 94 616 741 041), am writing to formally grant full authority to Waelle Darwiche to act on behalf of Trusted Building Group Pty Ltd in relation to the above-mentioned matter. This authority includes representation for the proceedings scheduled on 13 September 2024 and all subsequent hearings.”

17. That document purported to give Mr Darwiche authority to act for the Builder in relation to this matter. Indeed, on 13 September 2024, Mr Darwiche appeared before me via AVL, evidently from overseas. I explained to Mr Darwiche that it was necessary for the Builder to obtain legal representation and to take steps to prosecute the proceedings, and that is what it intended to do. I granted the Owners leave to file an application for summary judgment to be made returnable on Friday 20 September 2024, and suggested to Mr Darwiche that the Builder needed to obtain legal representation to deal with that.

18. Also on 13 September 2024, my Associate sent to Mr Darwiche an email:

“His Honour made the following orders:

1. Grant leave to the defendants to file in the Registry, by 17 September 2024, any such motion as it may be advised to, and send it by email to my Associate and to the plaintiff at the email addresses in MFI 1.

2. That motion to be made returnable on 20 September 2024.

3. Direct that the plaintiff [and] their legal representative appear at the directions listing on 20 September 2024.

4. Reserve the costs of today.

5. Stand the matter over for directions on 20 September 2024.

If you require a sealed copy please contact the Registry.”

19. On 17 September 2024, the Owners filed a Notice of Motion seeking orders that the Builder’s List Statement be struck out, judgment on the Cross-Claim, and a listing of the matter for assessment of damages. That is the matter that I am dealing with now.

20. On 19 September 2024, my Associate received an email from a solicitor, Ms Mona Harmouch of Hodroj and Associates:

“We refer to the above matter and confirm we have only been instructed today to act for Mr Waelle Darwiche.

Could you please advise as to what is required to have the directions hearing adjourned to enable us to review the matter and seek instructions from our client who is currently overseas?”

21. My Associate replied shortly thereafter:

“The matter will remain in the list tomorrow.

On 13 September 2024 his Honour directed that the plaintiff’s legal representative appear on 20 September 2024.

A Notice of Appearance will need to be filed online or at the Registry.”

22. On 19 September 2024, my Chambers received a further email from Mr Darwiche:

“I hope this email finds you well. As per your order, I have consulted with Mona Harmouch from Hodroj and Associates. While she is willing to proceed with the case, she is unable to represent me tomorrow due to the volume of material and short notice for review. Ms. Harmouch did contact the court to request more time but was unfortunately declined.

In light of this, I kindly request an extension. I am happy for you to determine the length of the extension, and I will work diligently within the timeframe you choose to ensure we are fully prepared.”

23. On 20 September 2024, there was no appearance for the Builder. I fixed the Owners’ 17 September 2024 motion down for hearing before me today.

24. I directed Mr Klooster, who appeared for the Owners, to cause his instructors to notify Ms Harmouch and Mr Darwiche of today’s hearing date. That was done. Indeed, on 1 October 2024, my Associate received a further communication from Mr Darwiche attaching, without further elaboration, a quantity surveyor report dated 27 July 2023 in relation to the Bombo property:

“Dear Associate,

With reference to the above matter.

Please find the attached expert witness report.

Should you have any questions or concerns, please do not hesitate to contact our office.”

25. I have marked that document as MFI 1.

26. The matter was called on before me today and there was no appearance for the Builder.

27. The evidence I set out above shows that the Builder is not prepared, or able, timeously to prosecute its claim, nor resist the Owners’ Cross-Claim. It has had every opportunity to do so. I am persuaded that the Owners are entitled to a final resolution of the proceedings.

28. The Builder’s claim should be struck out and judgment entered for the Owners on the Builder’s claim.

29. Turning to the Owners’ Cross-Claim, the Owners are entitled to damages sufficient to place them in the position that they would have been in had the Builder performed the work in accordance with the contract and the Owners paid the Builder for that work.

30. The Owners seek to establish their loss on the basis of a document called “Defendants’ Schedule of Damages”, which I attach to these reasons.     Schedule of Damages

31. For reasons not necessary to outline now, the Owners are not today in a position finally to quantify the amount of their loss.

32. I will enter judgment for the Owners against the Builder on the Owners’ Cross-Claim.

33. I am not prepared to allocate further hearing time for the assessment of damages. That is the matter that was fixed for hearing today. I will make an order for reference on the question of quantification of the Owners’ damages.

34. I will order that the Builder pay the Owners’ costs of the proceedings.

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Decision last updated: 08 October 2024