Ganghui Pty Ltd v YTO Construction Pty Ltd [2023] NSWSC 729

Supreme Court New South Wales

Medium Neutral Citation: Ganghui Pty Ltd v YTO Construction Pty Ltd [2023] NSWSC 729 Hearing dates: 26 – 28 April, 1, 8 – 9, 11 May 2023; further written submissions 20 and 22 June 2023 Date of orders: 28 June 2023 Decision date: 28 June 2023 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Developer's claim under handwritten agreement succeeds; developer's final payment certificate not effective; builder's claim under s 18 of the Australian Consumer Law fails; builder's claim for $600,000 loan fails; builder's claim for variations fails Catchwords: BUILDING AND CONSTRUCTION – multi-storey residential development – dispute between developer and builder – whether there was an "arrangement" or "further arrangement" outside the contract – whether developer engaged in misleading or deceptive conduct – developer's claim under "handwritten agreement" – whether developer's final payment certificate effective – whether director of developer appointed as developer's principal's representative – purported variations – whether work in question was within scope of works under the contract EVIDENCE – witness evidence – interpreter – where interpreter reported that plaintiff's director's translator had advised director as to the evidence he should give in their native tongue during court adjournment – whether such conduct is established Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law Corporations Act 2001 (Cth) Evidence Act 1995 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bucknell v Commercial Banking Company of Sydney Ltd (1937) 58 CLR 155; [1937] HCA 35 Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82; [1984] FCA 180 Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 Piggott v Townsend [1926] 27 SR(NSW) 25 Robins v Goddard [1905] 1 KB 294 YTO Construction Pty Ltd v Innovative Civil Pty Ltd [2018] NSWSC 1354 YTO Construction Pty Ltd v Innovative Civil Pty Ltd [2019] NSWCA 110 Texts Cited: Keith Mason, Mason & Carter's Restitution Law in Australia (4th ed, 2021, LexisNexis) Category: Principal judgment Parties: Ganghui Pty Ltd (Plaintiff/First Cross-Defendant) Fu Ming Guo (Second Cross-Defendant) YTO Construction Pty Ltd (Defendant/Cross-Claimant) Representation: Counsel: M Christie SC with B Ilkovski (Plaintiff/Cross-Defendants) F Corsaro SC (Defendant/Cross-Claimant)