Project 4301 Pty Ltd v Buildcarp Constructions Pty Ltd [2022] NSWCATAP 396

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Project 4301 Pty Ltd v Buildcarp Constructions Pty Ltd [2022] NSWCATAP 396 Hearing dates: 30 May 2022 Date of orders: 19 December 2022 Decision date: 19 December 2022 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member A Suthers, Principal Member Decision: 1. The appeal is allowed in part. 2. Order 1 made on 17 February 2022 (as amended on 13 April 2022) in HB 21/02938 and HB 21/10258 is set aside. 3. In substitution for order 1, the following order is made: Buildcarp Constructions Pty Ltd must pay Project 4301 Pty Ltd $110,542.00 immediately. 4. The parties are to pay their own costs of the appeal proceedings. 5. If either party seeks a different costs order, order 4 above ceases to have effect and the following orders apply: (a) The party seeking a different costs order (the costs applicant) is to file and serve evidence and submissions in support of the different costs order within 14 days of the date of publication of these orders. (b) The costs respondent is to file and serve any evidence and submissions in response to the application for a different costs order within 14 days thereafter. (c) The costs applicant is to file and serve any material in reply within 7 days thereafter. (d) The parties are to indicate in their submissions whether they agree that the costs application can be determined on the basis of the written material provided. (f) In the event that both parties seek a different costs order, they are to file an indexed and paginated consolidated bundle of submissions, in hard copy, at the end of the submission period. Catchwords: APPEAL – Liquidated damages – Payment of invoices – interest – interpretation of contract Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Civil and Administrative Rules (NSW) 2014 Home Building Act (NSW) 1989 Cases Cited: Associated Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109; [1973] HCA 36 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Collins v Urban [2014] NSWCATAP 17 International Air Transport Association v Ansett Australia Holdings Ltd (2008) 82 ALJR 419 [2008] HCA 3 Electricity Generation Corporation v Woodside Energy Ltd; (2014) 251 CLR 640 at 656; [2014] HCA 7 James & Ors v Surf Road Nominees Pty Limited & Ors [No 2] [2005] NSWCA 29 Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181 Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 145 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 Texts Cited: None cited Category: Principal judgment Parties: Project 4301 Pty Ltd – Appellant Buildcarp Constructions Pty Ltd – Respondent Representation: Counsel: Mr B Ilkovski (Appellant) Mr M Klooster (Respondent)