Xu v Jinhong Design & Constructions Pty Ltd

In *Xu v Jinhong Design & Constructions Pty Ltd*, the Court of Appeal of New South Wales considered an appeal from a decision of the primary judge concerning a building contract dispute. The appellants, directors of a property owner, appealed against findings that they had promised for consideration to sign forms of guarantee for the respondent builder's obligations. The respondent had also alleged misleading and deceptive conduct by the appellants.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the appellants had made a promise to sign guarantees for consideration, and whether the form of guarantee contemplated oral variations to the building work when the contract required such variations to be in writing. Additionally, the court had to determine if the primary judge erred in finding that representations made by the appellants constituted misleading and deceptive conduct, specifically concerning their intention to sign the guarantees. The court also considered the application of the *Home Building Act 1989* (NSW) to variations of building contracts.

The Court of Appeal allowed the appeal in part. It set aside certain orders made at first instance and remitted the proceedings to the Common Law Division. The matter was to be heard by a different judge to determine the respondent's contract claim, specifically concerning unpaid portions of the original contract sum and damages arising from an alleged written variation to the building contract. The court also directed the parties to make submissions regarding costs orders for both the first instance proceedings and the appeal.