H & M Constructions (NSW) Pty Ltd v Golden Rain Development Pty Ltd (No 4) [2023] NSWSC 925

Supreme Court New South Wales

Medium Neutral Citation: H & M Constructions (NSW) Pty Ltd v Golden Rain Development Pty Ltd (No 4) [2023] NSWSC 925 Hearing dates: 24 – 27 July and 2 August 2023 Date of orders: 09 August 2023 Decision date: 09 August 2023 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Plaintiff builder's case fails; defendant developer entitled to liquidated damages and access to security provided in accordance with the contract Catchwords: BUILDING AND CONSTRUCTION – design and construct contract – practical completion – superintendent to issue certificate of practical completion or give reasons for not doing so – superintendent issued "conditional" certificate of practical completion – purported retrospective date of practical completion on satisfaction by builder of specified conditions – contractual status of conditional certificate – whether Court can in any event determine when practical completion took place CONTRACTS – "prevention principle" – whether developer took over builder's obligations and prevented builder from performing those obligations ESTOPPEL – whether developer induced builder to understand that effect of conditional certificate was to fix time for determination of liquidated damages and delay costs UNCONSCIONABLE CONDUCT – whether developer engaged in unconscionable conduct Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law Environmental Planning and Assessment Act 1979 (NSW) Cases Cited: Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113 Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18 Australian Securities and Investments Commission v Westpac Banking Corporation (Omnibus) [2022] FCA 515 Good Living Company Pty Ltd as trustee for the Warren Duncan Trust No 3 v Kingsmede Pty Ltd (2021) 284 FCR 424; [2021] FCAFC 33 Parkview Constructions Pty Ltd v Futuroscop Enterprises Pty Ltd [2023] NSWSC 178 Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd (2017) 95 NSWLR 82; [2017] NSWCA 151 Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd (No 2) [2012] WASCA 53 Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387; [1988] HCA 7 Category: Principal judgment Parties: H & M Constructions (NSW) Pty Ltd (Plaintiff/Cross-Defendant) Golden Rain Development Pty Ltd (Defendant/Cross-Claimant) Representation: Counsel: N Simpson with S T Hanscomb (Plaintiff/Cross-Defendant) N J Kidd SC with J Dooley (Defendant/Cross-Claimant)