Fransses v Sky Infrastructure Developers Pty Limited (No. 1) [2023] NSWDC 545

District Court New South Wales

Medium Neutral Citation: Fransses v Sky Infrastructure Developers Pty Limited (No. 1) [2023] NSWDC 545 Hearing dates: 17-21, 24-25 October, 1 November 2022, 6-10 February 2023 Date of orders: 10 February 2023 Decision date: 10 February 2023 Jurisdiction: Civil Before: Neilson DCJ Decision: 1 I give verdict and judgment for the plaintiff against the first defendant for $265,874.26. 2 I give verdict and judgment for the second defendant against the plaintiff. The cross-claim is dismissed. Catchwords: CIVIL – BUILDING CONTRACT – Were certain progress payments made? – Was the Defendant entitled to terminate the contract – Interpretation of contract re taking the deposit into account. Legislation Cited: Nil. Cases Cited: Nil. Texts Cited: Cheshire and Fifoot Law of Contract, 11th Australian edition, Butterworths 2017 Category: Principal judgment Parties: Plaintiff – Monica Fransses First Defendant – Sky Infrastructure Developers Pty Limited Second Defendant - Roy Maalouf Representation: Plaintiff – Mr Wiggins, P. First and Second Defendant – Mr Baroni, M. File Number(s): 2021/00028728 Publication restriction: Nil.

Judgment

Background 1. HIS HONOUR: These proceedings arise out of an NSW Residential Building Contract for New Dwellings entered into on 2 December 2017. The owner of the property upon which the dwellings were to be erected is described in the contract as Monica Fransses of 43 McIntyre Avenue, St Clair. The builder nominated in the contract is Sky Group Pty Limited. The Plaintiff nominated in the Statement of Claim is in fact the same Monica Fransses. That is despite the fact that she married on 29 September 2018 and now uses her husband's surname, Boctor. She so gave her name in evidence and the transcript records the Plaintiff's name as being Boctor on the foot of each of page of the transcript of 19 October 2022. When she commenced giving her evidence on the preceding day, 18 October 2022, she was merely described as the Plaintiff on the foot of each page of the transcript. The Plaintiff was almost invariably referred to in evidence as Ms Fransses, and I trust she will forgive me if I maintain that name despite her marriage because it will just make life much easier for me. I mean her absolutely no discourtesy by doing so. 2. The Defendant, until earlier today, was Sky Group Pty Limited. However, when I consulted a company search, I found out that the Defendant had changed its name, and the Statement of Claim was amended to show as the correct title of the First Defendant, Sky Infrastructure Developers Pty Limited. However, at the time that the relevant facts occurred, the First Defendant was known as Sky Group Pty Limited, and I trust that I shall be forgiven for referring to it by that name should I need to do so. I shall attempt to describe the First Defendant merely as the Defendant. There is a Second Defendant, Mr Roy Maalouf, but the cause of action against him is different to the principal cause of action and is limited in scope. I shall have more to say about the proceedings against the Second Defendant much later in these reasons.