Kingston Building (Australia) Pty Ltd v Dial D Pty Ltd as trustee for the Smith Street Unit Trust [2013] NSWSC 173

Supreme Court New South Wales

Medium Neutral Citation: Kingston Building (Australia) Pty Ltd v Dial D Pty Ltd as trustee for the Smith Street Unit Trust [2013] NSWSC 173 Hearing dates: 4 March 2013 Decision date: 05 March 2013 Jurisdiction: Equity Division - Technology and Construction List Before: Stevenson J Decision: Plaintiff entitled to judgment Catchwords: BUILDING AND CONSTRUCTION - entitlement to progress claim - subsequent inconsistent progress certificate Cases Cited: Algons Engineering Pty Limited v Abigroup Contractors Pty Limited [1997] NSWSC 478 Re Concrete Constructions Group Pty Ltd [1996] QCA 86 Macquarie International Health Clinic Pty ltd v Sydney South West Area Health Service [2010] NSWCA 268 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 Category: Principal judgment Parties: Kingston Building (Australia) Pty Ltd (plaintiff) Dial D Pty Limited as trustee for the Smith Street Unit Trust (defendant) Representation: Counsel: F P Hicks with A D Gerard (plaintiff) F G Kalyk (defendant) Solicitors: Moray & Agnew Lawyers (plaintiff) Keystone Lawyers (defendant) File Number(s): SC 2013/27998 Publication restriction: Nil

EX TEMPORE Judgment (REVISED 6 MARCH 2013)

Introduction 1This is a dispute between a builder and a proprietor as to the builder's entitlement to be paid a progress claim. The builder made that progress claim on 21 December 2012.

Background 2On 31 March 2010 the plaintiff, Kingston Building (Australia) Pty Ltd ("the Builder") and the defendant, Dial D Pty Ltd as trustee for the Smith Street Unit Trust ("the Proprietor"), entered an agreement ("the Contract") pursuant to which the Builder agreed to construct for the Proprietor a medical centre in Charlestown. The contract sum was $9,345,189, subject to variations and other adjustments. 3Work achieved practical completion on 5 July 2012. Thereafter, the Builder undertook further variations and remedial works in the period from July to December 2012. 4The Builder has done no work on the site since 21 December 2012. 5On 21 December 2012 the Builder sent the Superintendent under the Contract a Progress Claim of $1,170,695.09 ("the Progress Claim"). 6The matter for consideration is whether, in the events that happened, the Builder is entitled to be paid the amount of that Progress Claim.