Trusted Building Group Pty Ltd v Everitt

Trusted Building Group Pty Ltd (the builder) brought an action against the owners (the cross-claimants) seeking payment for works and variations completed under a building contract. The cross-claimants, in turn, brought a cross-claim against the builder for defective works. The property, a partly constructed duplex, was subsequently sold. The cross-claimants sought to strike out the builder’s claim and to obtain judgment on their cross-claim, arguing that the builder had failed to comply with orders to serve evidence and had ceased to be legally represented.

The primary legal issue was whether the builder's claim should be struck out due to non-compliance with procedural orders, and if the cross-claimants were entitled to judgment on their cross-claim. The court had to consider whether the builder's failure to serve evidence and lack of legal representation constituted sufficient grounds to strike out their claim and to enter judgment in favour of the cross-claimants on their cross-claim.

The court found that the builder's failure to comply with procedural orders, specifically the failure to serve evidence, justified striking out the builder’s claim. Additionally, the court noted that the builder was no longer legally represented, which further supported the decision to strike out the claim. Given these circumstances, the court determined that the cross-claimants were entitled to judgment on their cross-claim for defective works. The court emphasised the importance of adhering to procedural requirements and the consequences of non-compliance.

The court struck out the builder's claim and entered judgment in favour of the cross-claimants on their cross-claim for defective works. The court also awarded the cross-claimants costs of the proceedings.