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 237Texts 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 DefendantRepresentation: Counsel:
Solicitors:
M. Dempsey SC with M. Sheldon - Plaintiff
G. Sirtes SC with D. Weinberger - First and Second Defendants
Jones Day - Plaintiff
Colin Biggers & Paisley - First Defendant
Indemnity Legal Pty Ltd - Second Defendant
File Number(s): 2017/285371
Judgment
Introduction
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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.
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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.
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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.
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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…
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- Case
- [2019] NSWSC 1166
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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