Invictus Development Group Pty Ltd v Versatile Fitout Pty Ltd [2022] NSWDC 477

District Court New South Wales

Medium Neutral Citation: Invictus Development Group Pty Ltd v Versatile Fitout Pty Ltd [2022] NSWDC 477 Hearing dates: 12, 13, 14 September 2022 (supplementary written submissions on 23 September 2022 for the defendant and 30 September 2022 for the plaintiff) Date of orders: 17 October 2022 Decision date: 17 October 2022 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 222 - 224 Catchwords: BUILDING AND CONSTRUCTION – dispute between head contractor and sub-contractor – whether there was a defect in the appearance of bowing on stairs after works - whether sub-contractor failed to comply with direction to repair defect within a stipulated timeframe – whether right to issue a direction was an essential term or intermediate term in the subcontract - whether any such failure gave rise to an express right in the contractor to terminate or amounted to a repudiation – whether contractor's termination lawful – whether sub-contractor elected to terminate for contractor's repudiation by wrongful termination DAMAGES – contractor claim for damages for breach of contract – compensation for cost of rectifying defective work – whether, upon termination of the contract, contractor entitled to retain sums withheld under contract – whether contractor entitled to keep monies accrued under provision for retention and damages for breach by sub-contractor PRACTICE AND PROCEDURE – building disputes – the Court's expectations of practitioners to consider and raise with the Court the desirability of orders for joint expert conferences and reports well in advance of hearing Legislation Cited: Building and Construction (Security of Payment) Act 1999 (NSW) ss 8, 9, 15, 32 Civil Procedure Act 2005 (NSW) s 56 Uniform Civil Procedure Rules 2005 (NSW) r 15.2 Cases Cited: Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544 Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2016] NSWCA 123 Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26 Ilija Stojanovski v Australian Dream Homes Pty Ltd [2015] VSC 404 J Kitchen & Sons Pty Ltd v Stewart's Cash and Carry Stores (1942) 66 CLR 116 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 Koompahtoo Local Aboriginal Land Council v Sanpine (2007) 233 CLR 115 Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 Owners of SP 80458 v TQM Design & Construct Pty Ltd [2018] NSWSC 1304 Serong v Dependable Developments Pty Ltd [2009] VCAT 760 Shevill v Builders Licensing Board (1982) 149 CLR 620 Visscher v Honourable President Justice Giudice (2009) 239 CLR 361 Texts Cited: J Carter, Breach of Contract (2011) N Dennys and R Clay (eds) Hudson's Building and Engineering Contracts (14th ed, Sweet and Maxwell) (2020) Category: Principal judgment Parties: Invictus Development Group Pty Ltd (plaintiff/cross-defendant) Versatile Fitout Pty Ltd (defendant/cross-claimant) Representation: Counsel: Mr P Tiliakos for the plaintiff/cross-defendant Mr F Corsaro SC for the defendant/cross-claimant