C&V Engineering Services Pty Ltd v Metropolitan Demolitions Pty Ltd [2023] NSWCA 167

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: C&V Engineering Services Pty Ltd v Metropolitan Demolitions Pty Ltd [2023] NSWCA 167 Hearing dates: 21 June 2023 Date of orders: 24 July 2023 Decision date: 24 July 2023 Before: Kirk JA at [1]; Adamson JA at [2]; Stern JA at [3]. Decision: (1) Allow the appeal in part; (2) Set aside the orders made on 21 September 2022; (3) Declare that on 5 July 2018 the appellant and respondent made a contract for the appellant to procure and fabricate soldiers for Building C and that contract was not conditional upon any further direction to fabricate being made by the respondent; (4) Remit the issue of the quantum of damages for breach of contract as regards Building C to the trial judge on the basis that it is a matter for the trial judge whether to refer that issue to a referee; (5) Note that C&V is entitled to have the judgment sum in respect of Building B increased from $42,438.62 to $50,783.28 together with pre-judgment interest under s 100 of the Civil Procedure Act 2005 (NSW) from 24 July 2018; (6) Order the respondent to pay the appellant's costs of the appeal; and (7) Order the respondent to pay the appellant's costs of the proceedings at first instance. Catchwords: CONTRACT – construction – party oral partly written contract – whether contract was formed to procure and fabricate steel soldiers – whether contract in part subject to a condition – whether contract limited to procuring steel in preparation of building works – whether contract subject to condition precedent that there be direction prior to fabricating. CONTRACT – breach of contract – whether award of damages includes an amount corresponding on GST component for a supply on a tax invoice. CONTRACT – construction – whether additional sums by way of administration charges payable – no reference to administration charges in standard terms and conditions – no proper basis for establishing claim for additional sums. Legislation Cited: District Court Act 1973 (NSW), s 127(1) Civil Procedure Act 2005 (NSW), s 100 Uniform Civil Procedure Rules 2005 (NSW), rr 20.14, 36.16 Cases Cited: C&V Engineering v Metropolitan (No 3) [2022] NSWDC 421 Equuscorp v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 Johnston v Brightstars Holding Company Pty Ltd [2014] NSWCA 150 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Category: Principal judgment Parties: C&V Engineering Services Pty Ltd, ACN 003275134 (Appellant) Metropolitan Demolitions Pty Ltd, ACN 099769052 (Respondent) Representation: Counsel: D S Weinberger (Appellant) M Sheldon (Respondent)