FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340

New South Wales Court of Appeal

CITATION: FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340

HEARING DATE(S): 1-2 June 2005

JUDGMENT DATE: 10 October 2005

JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Basten JA at 85

DECISION: (1) Allow the appeal by the First Appellant in relation to the costs order made against him personally and vary the orders made by the District Court on 24 August 2004 with respect to costs so as to read; 1. in matter no. 1731/03, order that the plaintiff pay the defendant's costs of the proceedings, on a party and party basis up to and including 4 August 2004 and thereafter on an indemnity basis; 2. in matter no. 2130/03, order that the plaintiff pay the defendant's costs of the proceedings, on a party and party basis up to and including 4 August 2004 and thereafter on an indemnity basis; 3. in matter no. 3916/03, order that the defendant pay the plaintiff's costs on a party and party basis up to and including 4 August 2004 and thereafter on an indemnity basis; (2) Order that the Council of the City of Blue Mountains pay Mr Yazbek's costs of the application made by it against him personally for its costs in the District Court; (3) Order that the appeal be otherwise dismissed; (4) Order that the First Appellant pay 90% of the Respondent's costs of the appeal.

CATCHWORDS: CONTRACT - interpretation of building and construction contract AS4300-1995 - whether statutory declaration produced by builder in support of progress claim was false - effect of falsity of statutory declaration - whether power of superintendent to certify progress claim extends beyond termination of contract - whether builder had accrued right to progress payment - whether termination was lawful - whether show cause notice adequate - whether there was a substantial breach - COSTS - personal costs order against company director and shareholder under s148B of the District Court Act 1973 (NSW) - factors relevant to discretion to make costs order against a non-party