Yisheng Construction Pty Ltd v City Garden Australia Pty Ltd [2022] NSWCA 269

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Yisheng Construction Pty Ltd v City Garden Australia Pty Ltd [2022] NSWCA 269 Hearing dates: 7 December 2022 Date of orders: 15 December 2022 Decision date: 15 December 2022 Before: Meagher JA at [1]; Mitchelmore JA at [2]; Basten AJA at [3] Decision: (1) Allow the appeal from the judgment and orders made in the Equity Division on 9 March 2022. (2) Set aside orders 2 and 3 made and entered on that date. (3) Give judgment in favour of Yisheng Construction Pty Ltd against City Garden Australia Pty Ltd in the amount $667,140. (4) Give judgment for Yisheng Air Con Pty Ltd against City Garden Australia Pty Ltd in the amount of $113,255. (5) Order that City Garden Australia Pty Ltd pay the plaintiffs' costs of the proceedings in the Equity Division against City Garden Australia Pty Ltd. (6) Order that the respondent pay the appellants' costs in this Court. Catchwords: CONTRACTS – remedies – damages – proof of loss or damage – developer promised to pay amounts owing by builder to subcontractors – builder issued payment schedules – subcontractors received some payments from builder and developer – whether "previous payment" in payment schedules referred to payments paid CIVIL PROCEDURE – pleadings – calculation of loss or damage – whether appellants' case in final submissions was pleaded or run at trial – amount owing under payment schedules deducting amounts paid to appellants – case not materially different – sufficient notice – evidence supported calculations EVIDENCE – documentary evidence – business records – payment schedules – no issue of authenticity or sufficiency – no need to prove extraneously matters disclosed in payment schedules Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 13-17, 27 Evidence Act 1995 (NSW), s 183 Cases Cited: Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26 Gregg v R [2020] NSWCCA 245 Maaz v Fullerton Property Pty Ltd [2021] NSWCA 79 National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309; [1999] NSWSC 539 Category: Principal judgment Parties: Yisheng Construction Pty Ltd (First Appellant) Yisheng Air Con Pty Ltd (Second Appellant) City Garden Australia Pty Ltd (Respondent) Representation: Counsel: B Coles KC / D Neggo (Appellants) D R Pritchard SC / J C Lee (Respondent)