Creative Building Services v Jolene Investments [2013] NSWSC 391

Supreme Court New South Wales

Medium Neutral Citation: Creative Building Services v Jolene Investments [2013] NSWSC 391 Hearing dates: 17/04/2013 Decision date: 17 April 2013 Jurisdiction: Equity Division - Technology and Construction List Before: McDougall J Decision: Adopt referee's report. Judgment for plaintiff accordingly with cots. Catchwords: BUILDING AND CONSTRUCTION - construction contracts - whether compliance with a contractual mechanism for claiming progress payments formed a condition precedent for payment of the entire contract sum Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Civil Procedure Act 2005 (NSW) Home Building Act 1989 (NSW) Uniform Civil Procedure Rules Category: Procedural and other rulings Parties: Creative Building Services Pty Ltd (Plaintiff) Jolene Investments Pty Ltd (Defendant) Representation: Counsel: M Orlov (Plaintiff) DJ Hand (Defendant) Solicitors: Meyer Vanderberg Lawyers (Plaintiff) HWL Ebsworth (Defendant) File Number(s): 2011/7717

Judgment (EX TEMPORE - REVISED 17 APRIL 2013) 1HIS HONOUR: On 1 November 2006, the plaintiff (the builder) and the defendant (the proprietor) entered into a "cost plus" building contract. Under the contract, the builder was to construct a residence at Murrumbateman in the state of New South Wales, to be occupied by the principals of the proprietor.

The disputes 2Work under the contract was completed in about October 2008. By then, the parties had fallen into dispute. The proprietor had made periodic payments totalling in excess of $1,073,000. The builder asserted that the total cost of the works was of the order of $1,657,530. The builder sued to recover the balance, quantified at $583,870. The proprietor cross-claimed for the cost of defect rectification. The asserted cost of rectification of defects was $393,422. 3In addition, the proprietor asserted that the builder had no contractual entitlement to be paid. An understanding of that defence requires some attention to be paid to the conditions of the contract, to which I now turn.