Duffy Kennedy Pty Ltd v Galileo Miranda Nominee Pty Ltd [2020] NSWCA 25

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Duffy Kennedy Pty Ltd v Galileo Miranda Nominee Pty Ltd [2020] NSWCA 25 Hearing dates: 30 October 2019 Decision date: 25 February 2020 Before: White JA at [1]; Brereton JA at [182]; Barrett AJA at [183] Decision: Appeal dismissed with costs. Catchwords: BUILDING AND CONSTRUCTION – construction contracts – Building and Construction Industry Security of Payment Act 1999 (NSW) – whether right to suspend work validly exercised – whether unpaid interest on late payment of "scheduled amount" forms part of the scheduled amount – the definition of "scheduled amount" does not include interest payable under s 11 on the unpaid amount of a progress payment unless that amount is included in a "scheduled amount" CONTRACT – Breach of Contract – whether 'show cause notice' was validly issued in circumstances where the power to issue the notice was conferred on the principal's representative – where principal was involved in the principal's representative's decision to issue the notice – notice validly issued as principal's representative gave adequate and proper consideration to issuing the notice and it would be inconsistent with the principal's right to see that its representative acts properly if it could not be involved in the decision CONTRACT – Breach of Contract – whether 'take out notice' was validly issued where its validity was contingent on the principal's representative being satisfied that the default that was the subject of the 'show cause notice' had not been remedied or the contractor had otherwise failed to show cause – not shown that the principal's representative failed to give adequate and proper consideration to the issues – not shown that the principal's representative did not possess the relevant satisfaction EVIDENCE — Privileges — Without prejudice privilege – whether information obtained during the course of 'without prejudice' meetings can be used for purposes other than settlement – 'without prejudice' privilege is not based upon an implied agreement that if the negotiations do not result in an agreement for settlement of the dispute, the parties will make no use of what has been disclosed by the other party in the negotiations Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 4, 11, 14, 15, 16, 22, 23, 24, 25, 27 Environmental Planning and Assessment Act 1979 (NSW), s 6.30 Security of Payment Amendment Act 2002 (NSW) Cases Cited: Calderbank v Calderbank [1976] Fam 93 Cutts v Heads [1984] CH 290 Field v Commissioner for Railways for NSW (1957) 99 CLR 285 Galileo Miranda Nominee Pty Ltd v Duffy Kennedy Pty Ltd [2019] NSWSC 1157 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65 Muriniti; Newell v Lawcover Insurance Pty Ltd (No 2) [2018] NSWCA 311 Pihiga Pty Ltd v Roche [2011] FCA 240; (2011) 278 ALR 209 Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531 Unilever plc v The Proctor & Gamble Co [2001] 1 All ER 783 Walker v Wilshire (1889) 23 QBD 335 Wentworth Securities Ltd v Jones [1980] AC 74 FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340 Category: Principal judgment Parties: Duffy Kennedy Pty Ltd (Appellant) Galileo Miranda Nominee Pty Ltd (Respondent) Representation: Counsel: F Hicks SC with S Ahmed and F Anwar (Appellant) S G Finch SC with D R Sibtain (Respondent