Home Site Pty Limited v ACN 124 452 786 Pty Limited (formerly known as Nahas Construction (NSW) Pty Limited) [2017] NSWSC 698

Supreme Court New South Wales

Medium Neutral Citation: Home Site Pty Limited v ACN 124 452 786 Pty Limited (formerly known as Nahas Construction (NSW) Pty Limited) [2017] NSWSC 698 Hearing dates: 1 to 4, 10 to 12 May 2017 Decision date: 05 June 2017 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: See paragraphs 137 to 139 of this judgment. Catchwords: BUILDING AND CONSTRUCTION – contract –extension of time clause – whether terms of contract relating to extension of time were modified by deed of amendment – whether defendant entitled to extension of time under contract – whether plaintiff entitled to liquidated damages under contract. BUILDING AND CONSTRUCTION – contract – liability for defective works – whether contract specification required rectification of defects – whether rectification of defects unreasonable. BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) s 10 – whether Home Building Act 1989 (NSW) s 10 applies. CONTRACT – building and construction contract – unenforceable – quantum meruit claim – whether plaintiff entitled to recover fair and just compensation for work completed in accordance with contractual specifications – whether costs incurred for work were reasonable – whether deductions should be applied to quantum meruit claim. CONTRACT – consideration – promise to perform existing duty – whether bona fides compromise of a disputed claim made. CONTRACT – construction and interpretation – "practical completion" – when did "practical completion" occur. CONTRACT – construction and interpretation – whether contract can be inferred from parties' conduct – whether words and conduct of parties would lead a reasonable person in the position of the other party to believe there was a contract. PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) r 14.14 – whether point should have been pleaded – whether point likely to take defendant by surprise Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Corporations Act 2001 (Cth) s 440D Home Building Act 1989 (NSW) s 10 Uniform Civil Procedure Rules 2005 (NSW) r 14.14(1) Cases Cited: Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36 Bellingen Shire Council v Colavon [2012] NSWCA 34 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 Radford v de Froberville [1977] 1 WLR 1262 Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165; [2004] HCA 52 Wigan v Edwards (1973) 1 ALR 497 Texts Cited: Rawlinsons Australian Construction Handbook 2011 (29th Ed, Rawlinsons Publishing) Category: Principal judgment Parties: Home Site Pty Ltd (Plaintiff) ACN 124 452 786 Pty Limited (formerly known as Nahas Construction (NSW) Pty Limited) (Defendant) Representation: Counsel: M Ashhurst SC with S Duggan (Plaintiff) F Corsaro SC with P Bambagiotti (Defendant)