Dewu Pty Ltd v Fabiano [2015] NSWSC 1915

Supreme Court New South Wales

Medium Neutral Citation: Dewu Pty Ltd v Fabiano [2015] NSWSC 1915 Hearing dates: 23 November 2015, 24 November 2015, 25 November 2015, 26 November 2015, 30 November 2015, 8 December 2015 Date of orders: 09 December 2015 Decision date: 09 December 2015 Jurisdiction: Equity - Technology and Construction List Before: McDougall J Decision: Judgment for defendant on plaintiff's claim. Judgment for cross-claimant for $511,762.00 plus interest. Catchwords: CONTRACT – plaintiff proprietor engaged defendant builder to carry out works – where each party claims to have validly terminated the contract – application of the terms of the contract to the events that occurred – where the contract included an amended schedule of payment – where the builder issued invoices in accordance with that schedule – where the proprietor refused to pay – whether formal non-compliance of invoice with terms of contract entitled proprietor to take that course – where that provision was facultative not prescriptive – consequence that non-payment amounted to a breach – result that builder validly issued, in response, a contractual notice of suspension of works – where proprietor later re-took possession of the site – result under terms of the contract that practical completion occurred – consequence that later purported termination by plaintiff invalid – further consequence that defendant was entitled to treat the purported termination as repudiation, and to itself validly terminate the contract validly – result that builder entitled to succeed in its cross-claim for damages

EVIDENCE – expert evidence – whether works carried out by builder were defective – where they complied with the terms of the contract – where alleged defects frequently related to future works that builder had not yet been required to perform – result that allegations of defective work not made good – consequence that plaintiff not entitled to damages Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) Oaths Act 1900 (NSW) Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 Hadley v Baxendale (1854) 156 ER 145 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Category: Principal judgment Parties: Dewu Pty Ltd (Plaintiff) Dominic Fabiano (Defendant) Representation: Counsel: A Norrie (Plaintiff) T Di Francesco (Defendant)