White Constructions Pty Ltd v PBS Holdings Pty Ltd - [2019] NSWSC 1166

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: White Constructions Pty Ltd v PBS Holdings Pty Ltd [2019] NSWSC 1166
Hearing dates: 15, 16, 17, 18, 22, 23, 24, 25, 29 July 2019
Decision date: 06 September 2019
Jurisdiction: Equity - Technology and Construction List
Before: Hammerschlag J
Decision:
Proceedings dismissed

Catchwords: BUILDING AND CONSTRUCTION LAW – CONTRACT – DAMAGES – Contract to design a sewerage system for a subdivision and submit it for approval – alleged breach consisting of failure to create and submit a design acceptable to the approval authority allegedly having the effect of delaying completion of the subdivision – whether breach established – whether damages established – programming experts called on question of delay – appropriate method of delay analysis – requirement to have regard to evidence – requirement for the plaintiff to establish damages.
HELD – no breach established – damages not established.
Legislation Cited: Sydney Water Act 1994 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Adhesives Pty Ltd v Aktieselskabet Dansk Gaerings-Industri (1935) 55 CLR 523
Alstom Ltd v Yokogawa Pty Ltd (no 7) [2012] SASC 49
Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd [2019] NSWCA 185
JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768
State of New South Wales v Moss (2000) 54 NSWLR 536
Troulis v Vamvoukakis [1998] NSWCA 237
Texts Cited: NSW Civil Procedure Handbook 2019
Category: Principal judgment
Parties: White Constructions Pty Ltd - Plaintiff
PBS Holdings Pty Ltd - First Defendant
Illawarra Water & Sewer Design Pty Ltd - Second Defendant
Representation:
Counsel:
M. Dempsey SC with M. Sheldon - Plaintiff
G. Sirtes SC with D. Weinberger - First and Second Defendants
Solicitors:
Jones Day - Plaintiff
Colin Biggers & Paisley - First Defendant
Indemnity Legal Pty Ltd - Second Defendant

File Number(s): 2017/285371

Judgment

Introduction

HIS HONOUR: This is a claim for damages alleged to have been suffered by the plaintiff (White), a developer, by the conduct of the second defendant (IWS), a sewer designer and the first defendant (SWC), a water servicing coordinator, in connection with the development of a 100 lot subdivision, known as Cedar Grove, at 59 Jamberoo Road, Kiama NSW.
White is an experienced property developer. It has previously developed a number of subdivisions, including in the Illawarra region of NSW, into which Kiama falls.
IWS and SWC are associated with Mr Joel Edwards (Edwards), an accredited water and sewer designer. IWS and SWC were represented by Edwards in their dealings with White.
White retained Mr Trevor Unicomb (Unicomb) to be its project manager for the project. White and Unicomb had worked together before. In its dealings with IWS, White was, for the most part, represented by Unicomb. On White’s side Mr Graham Morcom (Morcom), a director of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 1166
Decision Date: 06 September 2019

CaseChat Overview and Summary

The case of White Constructions Pty Ltd v PBS Holdings Pty Ltd involved a dispute between the plaintiff, White Constructions, and the defendant, PBS Holdings, concerning a contract to design a sewerage system for a subdivision. The matter was heard in the Supreme Court of New South Wales. The plaintiff alleged that the defendant breached the contract by failing to create and submit a design acceptable to the approval authority, which resulted in a delay in the completion of the subdivision. The plaintiff sought damages for the delay caused by the defendant's alleged breach.

The court was required to determine whether the defendant had indeed breached the contract and, if so, whether the plaintiff had established the extent of the damages claimed. Programming experts were called to provide evidence on the question of delay and the appropriate method of delay analysis. The court had to consider the evidence presented and determine whether the plaintiff had established a causal link between the defendant's actions and the delay, as well as the quantum of damages.

The court found that the plaintiff had not established a breach of contract by the defendant. It was determined that the plaintiff had not provided sufficient evidence to show that the defendant's actions caused the delay in the completion of the subdivision. As a result, the plaintiff's claim for damages was also unsuccessful. The court emphasised the requirement for the plaintiff to establish damages and the importance of having regard to the evidence presented. The court concluded that the plaintiff had not met the necessary burden of proof to establish either a breach of contract or the damages claimed.

The court dismissed the plaintiff's claim in its entirety, and no orders were made in favour of the plaintiff. The defendant was not required to pay any damages to the plaintiff for the alleged breach of contract.

Orders