One Pro Baulkham Hills Pty Ltd v Ming Tian Real Property Pty Ltd [2020] NSWSC 1043

Supreme Court New South Wales

Medium Neutral Citation: One Pro Baulkham Hills Pty Ltd v Ming Tian Real Property Pty Ltd [2020] NSWSC 1043 Hearing dates: 3 and 4 August 2020; further submissions 5 and 6 August 2020 Date of orders: 10 August 2020 Decision date: 10 August 2020 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Proceedings dismissed with costs Catchwords: CONTRACTS – building contract – construction – conditions precedent – whether conditions precedent were to formation of contract or parties' performance of their obligations under the contract – whether defendant contractor obliged to commence work under contract – whether failure by defendant to provide bank guarantees and evidence of home warranty insurance caused plaintiff to suffer damage CONTRACTS – ambit of exclusion clause – whether exclusion clause survived consensual termination of contract CONTRACTS – remedies – damages – whether plaintiff principal proved it had suffered damage by reason of defendant's conduct CONSUMER LAW – misleading or deceptive conduct – where director of defendant represented guarantee was genuine – where bank guarantee was not genuine – where plaintiff general manager saw at once that bank guarantee was not genuine – whether plaintiff has suffered any loss by director's conduct Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 ('Australian Consumer Law') Cases Cited: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Canning v Temby (1905) 3 CLR 419; [1905] HCA 45 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500; [1986] HCA 82 Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VR 358; [2008] VSCA 26 Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd (1980) 144 CLR 300 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537; [1982] HCA 29 Regional Power Corporation v Pacific Hydro Group Two Pty Ltd 46 WAR 281; [2013] WASC 356 Scott v Ennis-Oakes [2019] NSWSC 1257 Upper Hunter Timbers Pty Ltd v Forestry Commission of NSW [1999] NSWCA 125 Texts Cited: J D Heydon, Heydon on Contract (2019, Lawbook Co) K Lewison & D Hughes, The Interpretation of Contracts in Australia (2012, Lawbook Co) Category: Principal judgment Parties: One Pro Baulkam Hills Pty Ltd (Plaintiff) Ming Tian Real Property Pty Ltd (First Defendant) Meng Dai (Second Defendant) Representation: Counsel: C Tam and C Hamilton-Jewell (Plaintiff) D F Elliott (Defendants)