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[2026] NSWCA 106
respondent. Appeal dismissed with costs. The motion filed on 27 May 2026 seeking dismissal for want of due despatch had earlier been dismissed with no order as to costs: [4], [27].
The builder’s success in obtaining an adjudication payment did not finally settle whether it was contractually entitled to that payment. The Owners could still have their contractual dispute decided in court. The primary judge found the required lock up stage had not been reached, the Owners validly terminated the Contract, and damages were payable. In calculating those damages, the judge had to account for the money already paid to the builder following adjudication. The Court of Appeal found no basis to disturb the material findings and dismissed the appeal.
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2,402 words · generated 07/10/2026
Hanna v Kore [2026] NSWCA 106 concerned a dispute about a residential building contract for a two-storey dwelling in Schofield, New South Wales. The appellants were John Hanna and Intelligent Building Pty Ltd (Intelligent Building). The respondents, Nishant and Divya Kore, were the Owners. The appeal was heard by Ball JA, with Free JA and Griffiths AJA agreeing with Ball JA’s reasons ([1], [28]-[29]).
8 cited instruments linked from this judgment.
The Contract was entered into in about August 2021. Its price was $314,000 including GST. Schedule 2 provided for a progress payment of 30% of the price, $94,200, at “Lock Up Stage”, described as “Brickwork and roofing complete” ([6]). Completion was to occur within 26 weeks after the works commenced, subject to an extension of time sought and approved under cl 19 ([7]).
On 6 March 2023, Intelligent Building served Progress Claim 3 for $94,200. It described the claimed work as “Brickwork, Roofing, Floor tiling and electrical services rough in” ([8]). After the Owners did not pay, Intelligent Building gave notice that the works would be suspended and pursued adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act). It obtained an adjudication certificate for $94,466.02, registered it as a judgment in the Local Court, and was paid the amount ([9]).
The parties then exchanged notices alleging substantial breach and purporting to terminate the Contract. The Owners’ notice said that the work was substantially overdue, and alleged that the builder had suspended work for a reason other than an Owners’ breach ([10]). Intelligent Building’s notice alleged, among other things, failure to pay Progress Claim 3 and interference with the works ([11]). The Owners served a termination notice on 11 July 2023; Intelligent Building issued its own termination notice on 24 July 2023 ([12]).
At first instance, the primary judge found that the work had not reached lock up stage when Progress Claim 3 was issued. The judge also found that the Owners had validly terminated the Contract and were entitled to damages. The damages award was $360,511.71, based on completion costs, alleged defects and consequential loss, less relevant payments including the amount paid following adjudication ([2], [13], [15], [17]).
The appeal challenged, among other matters, the treatment of the adjudication determination, the finding that the progress claim was not contractually due, the deposit finding and the conclusion that the Owners had validly terminated ([19]). The Court of Appeal dismissed the appeal with costs ([27]).
The central legal point was the distinction between an adjudication determination under the SOP Act and a final judicial determination of contractual rights. Ball JA said an adjudication determination is “an interim determination of the parties’ rights in order to facilitate the prompt payment of contractors” ([20]). It does not finally decide whether the amount is due under the construction contract.
Section 32 was decisive to the treatment of the adjudication payment. As the Court explained, the Act does not affect rights a party may have under the construction contract or civil proceedings arising under that contract ([20]). Section 32(3) requires a court or tribunal to allow for amounts paid under the Act in its orders or award, and permits restitution or other appropriate orders. The primary judge had accounted for the adjudication payment in assessing the Owners’ damages. The Court of Appeal held that this was a correct application of s 32 ([20]).
The Court also corrected a potentially misleading aspect of the primary judgment. Ball JA observed that it was “unfortunate” that the primary judge had suggested Intelligent Building was not entitled to obtain an adjudication or register the determination as a Local Court judgment. It “plainly was” entitled to do so under the SOP Act ([20]). That observation did not alter the result. The important point was that an adjudication outcome did not prevent a later court from finally determining the contractual dispute.
On the factual question of lock up, the primary judge had rejected a quantity surveyor’s report relied on by the appellants. The report’s author was not called, and the report did not comply with the Expert Witness Code of Conduct in sch 7 to the Uniform Civil Procedure Rules 2005 (NSW). The evidence accepted by the primary judge was the Owners’ expert’s evidence that lock up had not been achieved when he inspected the site ([13]). On appeal, Mr Hanna did not challenge the finding that the works had not reached that stage. Ball JA said that, in any event, a challenge could not succeed in light of the accepted, uncontested expert evidence ([21]).
Mr Hanna also submitted that Intelligent Building could claim for completed work on a quantum meruit basis, apparently using the rejected quantity surveyor report. The Court identified difficulties with that submission. The appellants did not explain why a claim could be made at that point on a quantum meruit basis when the Contract specified the price, the stages for progress payments and their amounts. The builder had also already received the adjudication amount for the work the claim concerned ([22]). The Court did not develop a general rule about quantum meruit; it rejected the submission as presented in this appeal.
The termination issue depended in part on whether the Owners were themselves in breach for not paying Progress Claim 3. But that argument depended on overturning the finding that the claim was not contractually due. Since the appellants did not establish that error, their challenge to the termination finding failed ([25]-[26]). The primary judge had also found substantial delay and no timely extension-of-time application in accordance with the Contract. Mr Hanna did not seriously challenge those findings on appeal ([14], [25]-[26]).
Finally, the deposit ground did not identify an appellate error. The primary judge relied principally on an admission in a verified defence prepared while the appellants were legally represented, as well as other material including an email from Mr Hanna. The appellate court’s question was whether the primary judge erred on the material before him. The appellants’ explanations did not show that the judge was not entitled to rely on that material ([23]-[24]).
The judgment describes the relevant legal position before and after this decision through its application of s 32 of the SOP Act. It does not present Hanna v Kore as changing the statutory framework. Rather, it applies the distinction between an interim adjudication outcome and a final determination of contractual rights.
Before the appeal, Intelligent Building had an adjudication determination and had registered it as a judgment. The parties’ later court dispute nevertheless concerned their final contractual rights, including whether the contractual stage for payment had been reached and whether the Owners validly terminated. The Court treated those questions as open to determination in the civil proceedings, consistently with s 32 ([20]).
After the appeal, the practical result in this dispute was that the primary judge’s final assessment stood. The payment made following adjudication was not ignored or treated as conclusively resolving contractual entitlement. Instead, it was accounted for in the final damages calculation, as s 32(3) required ([17], [20], [22]).
The judgment refers to Ceerose Pty Ltd v Building Products Australia Pty Ltd [2015] NSWSC 1886 for discussion of the interim character and purpose of adjudication ([20]). The supplied judgment does not set out the detailed reasoning in Ceerose beyond that reference, so this analysis does not attribute additional propositions to that case. Nor does the judgment purport to alter the text of s 32 or set out a new test for the validity of progress claims, termination notices, or quantum meruit claims.
The decision’s narrower contribution is its illustration of how s 32 operates where a builder has received an adjudication payment but a court later decides the contractual dispute differently. The judgment confirms that the court’s final process can assess contractual entitlement and must account for money already paid under the Act. That is the statutory relationship the Court applied, rather than a rule that adjudication has no legal effect or that an adjudication payment must always be repaid.
At [20], Ball JA described adjudication as “an interim determination of the parties’ rights in order to facilitate the prompt payment of contractors”. In plain English, adjudication provides a prompt payment mechanism while a dispute may remain to be finally resolved. It does not itself close off a later contractual proceeding.
Also at [20], the Court explained that the SOP Act does not affect “any right that a party to a construction contract … may have under the contract” or “any civil proceedings arising under a construction contract”. In plain English, a party can still have contractual rights and pursue a court proceeding despite an earlier adjudication outcome.
The Court then quoted s 32(3), which requires a court to allow for amounts paid under the Act and permits orders for restitution or other appropriate relief ([20]). The practical translation is that a court deciding the final dispute must take account of the adjudication money already paid. The section gives the court options for dealing with that payment in light of its final decision.
Ball JA said the primary judge “correctly applied that provision” ([20]). That statement connects the statutory rule to the case’s result: the primary judge could include the payment in the accounting used to assess the Owners’ damages.
At [24], Ball JA said the appellate question was whether the primary judge made an error based on the material before him. In plain English, the appeal was not an opportunity simply to reargue the deposit issue with a different explanation. The appellants needed to identify error in the primary judge’s assessment of the material available at trial.
Finally, the Court concluded that “the appeal must be dismissed with costs” ([27]). Free JA and Griffiths AJA agreed ([28]-[29]).
The decision is relevant to disputes where a party has obtained payment through SOP Act adjudication, but the parties later litigate their final contractual rights. Its direct setting was a residential building contract and a payment claim for a specified contractual stage. The case illustrates that registration and payment of an adjudication amount do not prevent a later court from examining whether the underlying contract made the payment due ([20]-[22]).
It is particularly relevant where a party argues that an adjudication outcome conclusively settles contractual entitlement. Hanna v Kore rejects that characterisation, relying on s 32 and the interim nature of adjudication ([20]). It also illustrates that payments made following adjudication must be brought into account in later proceedings ([20], [22]).
The facts also involved a claim tied to a contractual milestone. The Contract described lock up stage as “Brickwork and roofing complete”, and the primary judge found the milestone had not been reached ([6], [13]). The appeal did not overturn that factual finding. The case therefore illustrates the importance, in this particular dispute, of the contractual stage and the evidence about whether it had been achieved. It does not establish a general test for determining when lock up has been reached.
The decision also involved competing termination notices, alleged delay, and an asserted extension of time. The primary judge found that no extension application had been made in accordance with the Contract, and the appeal did not seriously challenge that finding ([14], [25]-[26]). The case may therefore be useful as a procedural example where termination arguments depend on findings about contractual payment and extensions of time. Its reasoning should not be read as deciding the validity of termination under materially different contract terms or facts.
The supplied judgment contains no later decisions citing or applying Hanna v Kore. It therefore does not establish how later courts have treated the decision, whether they have followed or distinguished it, or whether they have developed its reasoning.
The judgment itself refers to Ceerose Pty Ltd v Building Products Australia Pty Ltd [2015] NSWSC 1886 as a case discussing the interim character of adjudication ([20]). It also identifies the primary judgment, Kore v Intelligent Building Pty Ltd [2025] NSWDC 297, as the decision under appeal ([1]). Those references are not evidence of later treatment of Hanna v Kore.
Accordingly, no conclusion about subsequent precedential treatment can be drawn from the supplied text. The decision’s stated reasoning is its application of s 32 to the dispute before it. Any assessment of later cases would require sources beyond this judgment.
The Court expressly identified an issue concerning Mr Hanna’s liability under s 37 of the Design and Building Practitioners Act 2020 (NSW). The primary judge appeared to treat that liability as co-extensive with Intelligent Building’s contractual liability and to assess damages on the same basis. Ball JA said there appeared to be difficulties with both assumptions, but neither was challenged on appeal, so the Court proceeded on the same basis as the primary judge ([18]). The judgment therefore does not resolve the proper relationship between Mr Hanna’s statutory duty and the company’s contractual liability.
The appeal also did not produce a general determination about when a builder may recover on a quantum meruit basis despite a construction contract specifying progress payment stages. Ball JA identified the appellants’ failure to explain the basis for that claim in this case, including in light of the Contract and the payment already received ([22]). That is a case-specific rejection of the submission as advanced, not a comprehensive statement of the law governing quantum meruit claims.
The decision does not set out a general standard for assessing whether building work has reached lock up stage. The finding rested on the Contract’s description of the stage and the evidence accepted by the primary judge ([6], [13], [21]). The appellate court did not need to articulate a broader test because the factual challenge was not pursued and could not succeed on the evidence described.
Nor does the judgment explain in detail how restitution under s 32(3) would be calculated in other cases. It confirms the statutory power and the requirement to allow for amounts paid, and it approves the primary judge’s accounting in this case ([20]). Different payment histories or final findings could raise questions not addressed here.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hanna v Kore [2026] NSWCA 106
Hearing dates: 1 June 2026
Date of orders: 5 June 2026
Decision date: 05 June 2026
Before: Ball JA at [1]
Free JA at [28]
Griffiths AJA at [29]
Decision: Appeal dismissed with costs.
Catchwords: BUILDING AND CONSTRUCTION – residential building contract – builder issues payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) for works at lock up stage – builder proceeds to adjudication and registers adjudication certificate as a judgment – where owners commence proceedings following dispute about termination of the contract – where primary judge found that works had not reached lock up stage and builder not contractually entitled to payment for works the subject of the claim – where primary judge found that owners validly terminated the contract and entitled to damages – application of s 32 Building and Construction Industry Security of Payment Act 1999 (NSW)
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) s 32
Design and Building Practitioners Act 2020 (NSW) s 37
Environmental Planning and Assessment Act 1979 (NSW) Div 9.3
Uniform Civil Procedure Rules 2005 (NSW) Sch 7
Cases Cited: Ceerose Pty Ltd v Building Products Australia Pty Ltd [2015] NSWSC 1886
Kore v Intelligent Building Pty Ltd [2025] NSWDC 297
Category: Principal judgment
Parties: John Hanna (First Appellant)
Intelligent Building Pty Ltd (Second Appellant)
Nishant Kore (First Respondent)
Divya Kore (Second Respondent)
Representation: Counsel:
Litigant in Person (Appellants)
GJ Adelstein (Solicitor, Respondents)
Solicitors:
Litigant in Person, First Appellant (Appellants)
Adelstein Solicitors (Respondents)
File Number(s): 2025/00348243
Publication restriction: None
BALL JA: By an unfiled amended notice of appeal, Mr John Hanna and Intelligent Building Pty Ltd (Intelligent Building) appeal against orders made by Weber SC DCJ on 8 August 2025, by which the primary judge relevantly gave judgment for Nishant and Divya Kore (the Owners) on their claim against Intelligent Building and Mr Hanna in the sum of $360,511.71: see Kore v Intelligent Building Pty Ltd [2025] NSWDC 297 (Primary Judgment or PJ).
The proceedings below concerned the construction of a two-storey dwelling by Intelligent Building in Schofield, NSW, pursuant to a contract with the Owners (the Contract), and a dispute regarding termination of the Contract before the works were completed. The primary judge relevantly found that (1) the Contract had been validly terminated by the Owners, (2) Intelligent Building was not contractually entitled to payment for works which were the subject of a payment claim it had made under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act) and later sought to enforce (Progress Claim 3), and (3) that the Owners were entitled to damages of $360,511.71 against Intelligent Building and Mr Hanna for completion costs, alleged defects, and consequential loss.
The claim against Mr Hanna was brought under s 37 of the Design and Building Practitioners Act 2020 (NSW) (DBP Act) as a person carrying out construction work. Mr Hanna was described by the primary judge as an engineer who was supervising the works and, it appears, accepted that he came within the scope of s 37 of the DBP Act: PJ[4]. Similar claims were made against Mr Hanna’s son, and Ms Eman Shonoda, Mr Hanna’s wife and the sole director of Intelligent Building, although those claims were dismissed by the primary judge having regard to their lack of involvement in carrying out the relevant construction work: see PJ[3], [70]-[71], [75].
The appellants, who were not legally represented at the hearing before the primary judge, are self-represented in this appeal. Some procedural difficulties have attended the preparation of the appeal, leading to the Owners filing two motions for the appeal to be dismissed for want of due despatch. The first was heard, and dismissed, by Stern JA on 13 April 2026, who set the appeal down for hearing on 1 June 2026. Her Honour also gave the appellants leave to file the amended notice of appeal apart from ground 7, which relates to costs not involving the parties to the appeal. The second motion for dismissal of the proceedings for want of due despatch was filed on 27 May 2026. Although the appellants have failed to comply with the directions of the Registrar and although the material before the Court is incomplete, there is sufficient material before the Court to determine the appeal on its merits. Accordingly, the motion filed on 27 May 2026 was dismissed at the beginning of the hearing of the appeal with no order as to costs.
The Contract, although undated, was entered into in about August 2021. It is in the form of a standard form NSW Residential Building Contract for New Dwellings, with some special conditions. The contract price was $314,000 including GST, with a 10% deposit. Schedule 2 provided for the making of progress payments at various stages of the works, including a claim for 30% of the contract price ($94,200.00) at “Lock Up Stage”, described as “Brickwork and roofing complete”.
Completion was to be achieved within 26 weeks after Intelligent Building commenced the building works on site, subject to any extension of time sought and approved under cl 19. Although it is not clear when the building works commenced, they were underway no later than February 2022. The works may have been delayed by action taken by Blacktown City Council, which included relevantly giving the Owners and Intelligent Building a development control order under Div 9.3 of the Environmental Planning and Assessment Act 1979 (NSW) in about August 2022.
On 6 March 2023, Intelligent Building served Progress Claim 3 on the Owners. The claim was for $94,200.00, with the following description:
Progress Claim 3 as per Building Contract
For Brickwork, Roofing, Floor tiling and electrical services rough in
On 30 March 2023, Intelligent Building gave notice that the works would be suspended in view of the Owners’ failure to pay Progress Claim 3. It lodged an adjudication application under the provisions of the SOP Act and obtained an adjudication certificate dated 11 May 2023 in the amount of $94,466.02, which it registered as a judgment with Blacktown Local Court on 12 May 2023. It appears that the Owners paid the amount of that judgment into Court when they commenced the proceedings in the Court below. The amount has since been paid to Intelligent Building.
On 21 June 2023, the Owners served on Intelligent Building a Notice of Substantial Breach, which relevantly provided:
We refer to the Agreement, and amendments thereto, entered into Nishant Vijay Kore & Divya Kore (“Owners”, “we”, “our”) with an effective date of 11 April 2022, signed on 11 April 2022, for the provision of services by Intelligent Building Pty Ltd (“IB”) of building and construction services (“the Agreement”).
In terms of clause 6 of the Agreement, the building period was to have been at practical completion within 26 weeks from the date of commencement of the building.
The Agreement was signed and building commenced on or about 11 April 2022 and practical completion date was that of 10 October 2022.
Accordingly, the development is more than 250 days overdue.
We confirm that we have to date not received any requests for an extension and not received any reasons as to why the building on site has been suspended.
In terms of clause 27, it is a substantial breach where the builder has suspended works on the building site for reasons other than the us Owners being in breach of the Agreement.
Accordingly, we hereby give you 10 working days to ensure that the Job is at practical completion without any defects present. Failing which, we hereby give you notice of our intention to terminate the Agreement due to your non-remedy of breach of suspension of works on the Site.
In accordance with clause 27.4 of the Agreement, we shall deliver our notice to terminate the Agreement for your breach providing the requisite 10 (ten) working days' notice in writing to Intelligent Building.
Accordingly, in the event IB fails to correct the breach, the Agreement will terminate on delivery of our notice of termination on Friday, 7 July 2023.
(a) You have failed to pay our previous progress claim #3 by the due date 13th March 2023; this claim which has been adjudicated on 3rd May 2023, with judgments entered against you on 12th May 2023 remains unpaid
(b) You have failed to provide any evidence of your financial ability to pay, as requested by the Examination Notices served to you since the 15th May 2023
(c) Your alleged representatives’ (Adelstein Solicitors and Master Empire Group) interference and hinderance to the progress of the building works with frivolous and misconceived beliefs.
Following our Notice of Substantial Breach to you on the 26th June 2023, we advise you have not remedied any of your breaches within the 10 business days.
Pursuant to Clause 27.4 of the contract, Intelligent Building Pty Ltd hereby formally terminate the contract on the following grounds:
(a) Your failure to pay our Progress Claim #3 by the due date 13th March 2023,
(b) Your failure to provide any evidence of your financial ability to pay,
(c) Your interference and hinderance to the progress of the building works,
(d) Your failure to rectify the cause of suspension within the specified time.
[36] … Accordingly, I find that IB [Intelligent Building] had no entitlement to issue PC3, nor was it entitled to the adjudication concerning PC3, nor was it entitled to have the adjudication registered as judgment of the Local Court.
[37] Accordingly, the plaintiffs shall have the sum the subject of the judgment and payment into Court taken into account in the final assessment of damages.
In their notice of termination, the Owners relied on a failure of Intelligent Building to complete the works within 26 weeks from commencement, which was said to be 11 April 2022. Although Mr Hanna argued on behalf of Intelligent Building that he served on the Owners a notice seeking an extension of time relating to the period from 1 April 2022 to 29 August 2022, the primary judge accepted the Owners’ evidence that the notice had not been served, or in any event, served within the time required by cl 19 of the Contract: see PJ[26]-[31].
The effect of these conclusions was that the primary judge accepted that the Owners were entitled to terminate the Contract on 11 July 2023 and did so effectively: PJ[23]-[24]. It also meant that the primary judge did not accept Intelligent Building’s contention that it had lawfully terminated the Contract.
Another issue before the primary judge was whether the Owners had paid the full amount of the deposit. Intelligent Building and Mr Hanna had admitted as much in their defence, which was filed when they were legally represented: PJ[39]. The primary judge did not accept that the admission was in error, including because the former solicitor had not been called and because of an email Mr Hanna had sent the Owners on 5 September 2021 which stated “I will be sending you tonight a receipt of deposit of $31,400 to give to your bank”: PJ[40]-[42].
The primary judge went on to deal with the Owners’ claims for damages for defects, consequential losses and completion costs. He concluded that they were entitled to recover $25,002.78 in respect of defects, $17,720.00 for rent they had to pay because they were unable to occupy the house and $408,894.20 for the costs of completion. They had already paid Intelligent Building $222,894.73 (including the amount paid into Court and subsequently paid out to Intelligent Building). It followed that they were entitled to recover the total of those amounts less the contract price as damages. That amount came to $360,511.71.
The primary judge seems to have assumed that Mr Hanna’s liability for breach of the statutory duty of care imposed by s 37 of the DBP Act was co-extensive with Intelligent Building’s liability for breach of the Contract, and that damages should be assessed in the same way. There appear to be difficulties with both those assumptions. An unfortunate feature of this case is that neither was challenged on appeal. In the light of the way the appeal was conducted, this Court must proceed on the same basis as the primary judge so far as the liability of Mr Hanna is concerned.
1 The District Court Judge wrongly revoked a SOPA claim despite the District Court does not have a jurisdiction to revoke a SOPA claim.
2 The Judge ruled wrongly that the progress claim #3 (SOPA claim) was invalidly issued, despite evidence of assessment of a Quantity Surveyor, Adjudication decision and a local court judgement # 2023/00152395.
3 The Judge ruled wrongly that the progress claim #3 was invalidly issued, thus the breaches letter served on the Respondents by the Appellant was invalidly issued.
4 The Judge ruled wrongly that the progress claim #3 and the breaches notice served on the Respondents by the Appellant was invalidly issued, thus the termination of the building contract served by the Appellant is invalid.
5 The Judge mistakenly error the amount of funds received by the appellant despite evidence of bank statements [sic].
6 The Judge ruled wrongly against the appellant for an amount of $360,511.71 despite the building contract was invalid[ly] terminated by the Respondents.
(3) In any
proceedings before a court or tribunal in relation to any matter arising under a construction contract, the court or tribunal—
(a) must allow for any amount paid to a party to the contract under or for the purposes of this Part in any order or award it makes in those proceedings, and
(b) may make such orders as it considers appropriate for the restitution of any amount so paid, and such other orders as it considers appropriate, having regard to its decision in those proceedings.
The primary judge correctly applied that provision in making the orders that he did.
It is not easy to follow grounds 3 and 4. They challenge the validity of the Owners’ breach and termination notices on the basis that the primary judge wrongly ruled that “the progress claim #3 was invalidly issued”. It appears from oral submissions made by Mr Hanna during the hearing of the appeal that the appellants do not challenge the conclusion that the work had not reached “lock up stage”. In any event, such a challenge could not succeed in view of the primary judge’s acceptance of the uncontested evidence of Mr Bournelis. Instead, Mr Hanna submitted that Intelligent Building was entitled to submit a claim for the work that it had done, apparently independently of the Contract. He submitted that Intelligent Building was entitled to be paid for that work on a quantum meruit basis calculated in accordance with the (rejected) report of Mr Uys, which was served with Progress Claim 3.
One difficulty with this submission is that Mr Hanna does not explain why Intelligent Building was entitled to make a claim when it did for the work that it had done and why it was entitled to calculate that claim on a quantum meruit basis, when the Contract clearly sets out the contract price, when progress payments are to be made and their amounts. A further difficulty is that Intelligent Building obtained an adjudication determination in its favour in respect of the progress claim and has been paid the amount of that determination. That is, it has been paid for the work the subject of the claim. Intelligent Building and Mr Hanna’s liability arises from the fact that the primary judge found that the Owners were entitled to terminate the Contract and to claim damages by reference to the costs of completing the works. The only relevance of Progress Claim 3 to that claim was that the primary judge correctly held that the Owners were entitled to be given credit for that payment in calculating the damages they were entitled to recover.
Although not obvious from its terms, ground 5 challenges the primary judge’s conclusion that the Owners had paid the full amount of the deposit. That finding was based principally on an admission contained in Intelligent Building and Mr Hanna’s defence which was prepared at a time when they were legally represented and which was verified by Intelligent Building and Mr Hanna.
On appeal, Mr Hanna sought to explain the admission on the basis that his son gave the solicitors then representing Intelligent Building instructions and to explain the email referred to by the primary judge on the basis that he created it so the Owners’ bank would release funds that it had agreed to lend for the construction work. Those submissions, however, misunderstand the nature of an appeal. The question is whether the primary judge made an error based on the material before his Honour. His Honour was plainly entitled to act on the basis of an admission made in a verified defence prepared at a time when the appellants were legally represented, particularly in light of the additional material his Honour referred to. Mr Hanna did not advance any reason for why his Honour was not entitled to do so.
Ground 6 raises the question whether the Owners validly terminated the Contract. The primary judge concluded that they did for two reasons. The first was that Intelligent Building was in breach of the Contract because of extensive delays that had not been the subject of applications for extensions of time in accordance with the Contract. The second was that the Owners were not, at the time they exercised their right of termination, in breach of the Contract themselves because of their failure to pay Progress Claim 3.
On appeal, Mr Hanna did not seriously challenge the first of these conclusions. It is difficult to see how he could have done so. Plainly, there were substantial delays. Equally plainly, the primary judge was entitled to conclude that Intelligent Building had failed to make any applications for extensions of time in accordance with the Contract. In oral submissions, Mr Hanna did seek to challenge the second of the primary judge’s findings. But that challenge depends on a conclusion that the primary judge’s conclusions in relation to Progress Claim 3 were wrong. For the reasons already given, they were not.
It follows that the appeal must be dismissed with costs.
FREE JA: I agree with Ball JA.
GRIFFITHS AJA: I agree with Ball JA.
**********
Hanna
Kore
Appeal dismissed with costs. The motion filed on 27 May 2026 seeking dismissal for want of due despatch had earlier been dismissed with no order as to costs: [4], [27].
Although the Owners claim that leave to appeal is required because Progress Claim 3 was for an amount of less than $100,000, that is not correct since the total amount of the judgment of the Court below, which is sought to be set aside, exceeds the $100,000 threshold.