Deane Projects Building Pty Ltd v Kinda Kapers Holdings Pty Ltd [2020] NSWDC 622

District Court New South Wales

Medium Neutral Citation: Deane Projects Building Pty Ltd v Kinda Kapers Holdings Pty Ltd [2020] NSWDC 622 Hearing dates: 6-9 October 2020 Date of orders: 19 October 2020 Decision date: 19 October 2020 Jurisdiction: Civil Before: Abadee Decision: See paragraphs 346-350 Catchwords: CONTRACTS – building and construction – variation claims – whether provision for variations was itself varied – whether implied term incorporated through prior course of dealing – alleged defective works – whether owner's claim limited in time – whether claimed defects appeared during defects liability period – whether builder liable for "design defects" in commercial contract for construction DAMAGES – claim for rectification costs for defective works – whether owner intended to rectify – whether proposed works reasonable PRACTICE AND PROCEDURE – building disputes – building experts – conflicting evidence about defects and scope of rectification works – desirability of practitioners ensuring building experts confer and jointly produce report prior to hearing Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) Environmental Planning Regulations 1994 (NSW) Home Building Act 1989 (NSW) Cases Cited: Bellgrove v Elridge (1954) 90 CLR 613 Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWSC 1302 Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213 Cordon Investments Pty Ltd v Lesdor Properties [2012] NSWCA 184 The Owners – Strata Plan No 66375 v King [2018] NSWCA 170 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Repfix Industries Pty Ltd v FBD Group [2020] NSWDC 514 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 Trimis & Anor v Mina [1999] NSWCA 140; (2000) 16 BCL 288 TSW Analytical Pty Ltd v The University of Western Australia [2017] WASCA 67 Turner Corporation Ltd (Receiver and Manager Appointed) v Austotel Pty Ltd (1994) 13 BCL 378 Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251 Westpoint Management Ltd v Chocolate Factory Apartments Ltd; Chocolate Factory Apartments v Westpoint Finance & Ors [2007] NSWCA 253 Wheeler & Anor v Ecroplot [2010] NSWCA 61 Texts Cited: J D Heydon, Heydon on Contract (Lawbook Co, 2019) Category: Principal judgment Parties: Deane Projects Building Pty Ltd (Plaintiff/Cross-Defendant) Kinda Kapers Holdings Pty Ltd (Defendant/Cross-Claimant) Representation: Counsel: Mr M Maconachie for the plaintiff/cross-defendant Mr G Carolan for the defendant/cross-claimant