DCT Projects Pty Limited v Champion Homes Sales Pty Limited [2016] NSWCA 117

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: DCT Projects Pty Limited v Champion Homes Sales Pty Limited [2016] NSWCA 117 Hearing dates: 17 March 2016 Decision date: 20 May 2016 Before: Macfarlan JA at [1] Gleeson JA at [2] Sackville AJA at [193] Decision: (1) Appeal allowed in part;

(2) set aside Orders 1 and 2 made by the primary judge on 26 May 2015;

(3) in lieu thereof, order: (a) judgment in favour of the plaintiff against the first defendant in the sum of $61,593.23; (b) judgment in favour of the plaintiff against each of the second to ninth defendants in the sum of $6,843.69; (c) in each case, the judgment is to take effect on 26 May 2015;

(4) the parties are to agree on the calculation of interest on the above judgments at the rates prescribed by Practice Note SC Gen 16 from 2 July 2008 to 26 May 2015, and submit a draft consent order within 14 days of the date of this judgment. In the absence of agreement between the parties, the parties are to file and serve their respective calculations of interest on the judgments and short written submissions in support, not exceeding 2 pages, within 21 days of the date of this judgment. The Court will determine the amount of interest on the papers;

(5) appellants to pay 90% of the respondent's costs of the appeal. Catchwords: CONTRACTS - building, engineering and related contracts - the contract – discharge, breach and defences to action for breach – where delay by the builder – whether repudiatory conduct– where purported termination by principal followed by purported termination by builder– onus on principal to prove work that could have been done – threats to suspend work made by builder in context of non-payment by principal – where builder suspended works for alleged breach by the principal – where principal did not serve a notice requiring the builder to remedy alleged breaches of contract – whether builder's conduct evinced intention to no longer be bound or to fulfil contact in manner substantially inconsistent with its obligations CONTRACTS - building, engineering and related contracts – claims for extensions of time – where no objection by principal when claims for extensions of time first made in closing submissions at trial – validity of claimed extensions by the builder and any notice of dispute by the principal under contractual regime for giving notice of claims– calculation of extensions by calendar or working days CONTRACTS - building, engineering and related contracts – determination of contract sum/price – nature of deposit – whether fee for advice or part of contract sum – terms of contract TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation – misleading and deceptive conduct – contract expressly excluded retaining walls and gave provisional sums for certain items including rock excavation – where builder aware of need for large retaining walls and did not inform principal prior to entry into contract – whether reasonable expectation of disclosure – where principal represented by its own project manager – no complaint by principal contemporaneous with need for retaining walls becoming apparent DAMAGES - General principles – causation – misleading and deceptive conduct – where failure to disclose – causation established if disclosure would have caused inaction or different action – whether recovery for discrete loss permitted – where damages claimed on a "no contract" case Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 (Australian Consumer Law) ss 18, 236 Trade Practices Act 1974 (Cth), ss 52, 75B(1), 82 Uniform Civil Procedure Rules, rr 14.14(2), 51.36(2) Cases Cited: Abigroup Contractors Pty Ltd v Sydney Catchment Authority (No 3) [2006] NSWCA 282; 67 NSWLR 341 Almond Investors Ltd v Kualitree Nursery Pty Ltd [2011] NSWCA 198 Australian Developments Corporation Pty Ltd v White Constructions (ACT) Pty Ltd (NSWSC, Giles CJ Comm D, 30 January 1996, unrep) Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304 Fabcot Pty Ltd v Port Macquarie-Hastings Council [2011] NSWCA 167 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; 217 CLR 640 Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; 233 CLR 115 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; 166 CLR 623 Murphy v Overton Investments Pty Ltd [2004] HCA 3; 216 CLR 388 Rawson v Hobbs [1961] HCA 72; 107 CLR 466 Shevill v Builders Licensing Board [1982] HCA 47; 149 CLR 620 Smith v Noss [2006] NSWCA 37 Traderight (NSW) Pty Ltd v Bank of Queensland Ltd [2015] NSWCA 94 Universal Cargo Carriers Corporation v Citati [1957] 2 QB 401 Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514 Category: Principal judgment Parties: DCT Projects Pty Limited (First Appellant) Timothy Ainsworth (Second Appellant) Patricia Avila (Third Appellant) David Barbic (Fourth Appellant) David Brack (Fifth Appellant) Peter Mason (Sixth Appellant) Champion Homes Sales Pty Limited (First Respondent) Sredoje Malesev (Second Respondent) Representation: Counsel: Mr M R Gracie with Dr B Douglas-Baker (Appellants) Mr C Stomo (Respondents)