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1. On 16 April 2021 Nour Moustafa Abdelhameed Moustafa (the First Respondent) and Marwa Mohamed Elsaied Hassan Keshk (the Second Respondent) entered into a contract with Heaven Builders Pty Ltd (the Appellant) to construct a two storey house on land owned by the Respondents at 1 Trewenack Street, Taylor in the Australian Capital Territory (ACT). An earlier contract with the Appellant was for the construction of a one storey house.

2. In about June 2022 a dispute arose between the Appellant and the Respondents, as a consequence of which the Appellant considered that the Respondents had, by their actions, brought about practical completion of the project and sought the balance of funds owing to them under the contract. The Respondents counter-claimed against the Appellant for the cost of completing the building works.

3. The matter was heard in the ACT Magistrates Court and on 26 July 2024, a Magistrate entered judgment for the Respondents in the sum of $82,038 together with interest and costs.

4. The Appellant appeals that decision.

Background

The Terms of the Building Contract

5. The terms of the contract entered into between the Appellant and the Respondents are, for these purposes, uncontroversial. The controversy here is what effect those terms had in light of the parties’ actions.

6. The contract provided for progress payments to be made to the Appellant at various stages: base, frame, lock-up, fixing, painting and practical completion. It was uncontroversial that the Appellant had delivered invoices to the Respondents for the earlier appointed stages and those invoices had been paid.

7. Work was commenced in accordance with the contract and was nearing completion when on 7 June 2022, the Appellant sent the Respondents an invoice for a progress payment in relation to the painting stage of the work and on 22 June, invoices for payment for certain variations. The invoice amount for the painting stage was just short of $64,000 and the invoice amount for the variations was almost $37,000.

8. At this point, the Respondents disputed that the painting stage had been completed and thus the invoice was not due to be paid. The Appellant contended that the painting stage was completed to the point where the Respondents were obliged to make the payment.

9. On 26 June 2022 the Respondents sent an email to the Appellant which said: 1. The builder and/or their sub-contractors are not permitted to enter, or do any work at the owners’ work site during the dispute resolution period. …

10. The dispute resolution period is provided for in clause 29 of the contract. In the email of 26 June 2022, the Respondents noted that eight days remained of the dispute resolution period. In the hearing of the appeal, the parties agreed that the dispute resolution period would end on 6 July 2022.

11. By this email, clause 8 of the contract was engaged.

12. Clause 8 of the contract is as follows: 8. POSSESSION OF THE SITE AND ACCESS a. The Owner will ensure that the Builder has exclusive and uninterrupted possession of and access to the Site to perform this Contract. b. If the Owner wishes to access the Site, the Owner must: i. request consent from the Builder and receive confirmation in writing, with such consent not to be unreasonably withheld; ii not request access to the Site at unreasonable times and so as not to disrupt the Builder or the Works …

13. By the letter of 26 June 2022, the Respondents withdrew the Appellant’s entitlement to exclusive and uninterrupted possession of the site in breach of clause 8 of the contract.

14. Clause 8 having been breached, it brings into play clause 24 of the contract which concerns Practical Completion, and relevantly to this matter clause 24(f) says: f. If the Owner possesses or uses the Works or any part of them without the written agreement of the Builder, the date of practical completion is the date of possession or use, unless Practical Completion has already been reached.

15. Clause 25 deals with payment on practical completion and says: a. On Practical Completion, the Builder is entitled to receive the unpaid balance of the Contract Sum together with any other money which is payable under this Contract. b. The amount due must be paid to the Builder within ten (10) Business Days of service on the Owner of a written request by the Builder giving particulars of the claim for final payment … f. The Owner is not entitled to withhold any money from the Builder for Works which: i. are deemed to have reached Practical Completion; …

16. On 21 July 2022 the Appellant sent the Respondents a letter to the effect that they would do no more work on the site until they received payment for the painting stage and the claimed variations. The letter noted that the Appellant was entitled to suspend work where the Respondents “without reasonable cause” failed to pay any progress payment. The letter also contended that the Appellant had been locked out of the site and noted that the Respondents had changed the locks on various doors, replacing the locks that the builder had put there with smart locks (Ex Q p 45). The letter concluded with an offer that if the Respondents paid the invoiced sums, that is $63,750 for the painting stage and $36,777.50 relating to the variations, the Appellant would recommence the work.

17. On 1 August 2022 the Respondents sent an email to the Appellant in which they refer to messages between them and the builders on 19 and 22 March, 11 April and 25 May 2022 in which they assert that the Appellant had asked them to install the house utilities, cut and adjust the land with the neighbour and construct the front retaining wall and outside stairs. The email continues in the following terms (Ex Q p 65): We do not close any doors (six doors on the first floor): the electric garage door (not functioning as there is no electricity installed on the site), the main door entry (not installed) two big glass doors (bedroom 3 and alfresco area – their keys with the builder), and the two wooden doors. The builder can still access the site if they want to proceed with the incomplete and defective works in the previous and painting stages.

18. On 1 August 2022 the First Respondent enrolled in an owner-builder course, on 4 August 2022 he obtained his white card, and on 8 September 2022 obtained certification necessary to be an owner-builder.

19. On 23 August 2022 the Respondents purported to terminate the building contract pursuant to clause 27 of the contract, on the basis that the Appellant had failed to carry out the works in a proper and skilled manner and had, without reasonable cause, suspended the carrying out of the works before Practical Completion.

20. The Appellant contends that the purported termination of the contract was invalid because of the provisions of clause 27 of the Contract which says: d. The Owner may not terminate this Contract if the Owner is in breach of it. The Magistrate’s Decision

Deemed Practical Completion and its consequences

21. The Magistrate found in relation to the letter from the Respondents to the Appellant of 26 June 2022: 35. Clearly, that direction unequivocally revoked the builder’s right to attend the work site during that eight day period, and expressly and intentionally exerted control over the work site. It revoked their right to possess the site and axiomatically amounted to an interruption to the builder’s possession. It amounted to the owners exercising their possession of the site, and all the works at that site, to the exclusion of the builder. Accordingly, at that time the owners possessed the works, and in accordance with clause 24, the building works were deemed to have reached practical completion. That is the case, notwithstanding the direction was only for a relatively short period or that there was a dispute or a dispute resolution period occurring at the time.

22. There is no challenge to this finding. The Magistrate further concluded: 48. However, the owners’ direction in the email of 26 July (sic June) 2022 was clearly limited by reference to time. …

23. The Magistrate continued and concluded that the Respondents’ email of 1 August 2022 was an invitation to the Appellant to re-enter the site and continue with the unfinished work. He noted that the letter of 1 August 2022 was sent within the “dispute resolution period” provided in the contract. This was not correct. The “dispute resolution period” provided for in clause 29 of the contract runs from the date on which, here, the Appellant was notified of the dispute, agreed to be 26 June 2022 which the Magistrate incorrectly said was 26 July 2022. It was agreed at the appeal that the dispute resolution period concluded on 6 July. It was not altogether clear how the expiration of the dispute resolution period was taken into account by the Magistrate in coming to his finding.

24. The Magistrate did not accept the Appellant’s contention that they had been prevented from accessing the site because of the smart locks placed on the doors by the Respondents. The Magistrate found that while there were locks present on the site, they were inoperative and the Appellant was not locked out of the building site. The Magistrate did not accept that the Respondents had physically prevented the Appellant from entering the site.

25. In considering this issue, the Magistrate said that there was no evidence that the Appellant had sought access to the site from the Respondents and concluded that had the builder wanted to access the site to complete the works, then attempts would have been made to secure access. He said that the builder used the letter directing it not to attend the site to “justify their reasons for not continuing work until they received further payments”. At [53] and [54], the Magistrate found that “the builder had cash flow difficulties in that they required further funding to pay existing invoices and therefore either would not or could not continue with building works until the owners made additional payments”.

26. As to whether the Respondents were entitled to terminate the contract, the Magistrate concluded that: 70. In this case it is uncontroversial that the builder wholly suspended work on 7 June 2022 pending payment of their invoice. This continued up to the deemed practical completion date of 26 July 2022 and beyond. The suspension was due to the non-payment of an invoice for a stage that was not adequately completed. Accordingly, that suspension occurred initially before practical completion and was without reasonable cause. … 71. It is also clear that during the period when the owners directed the builder not to ‘enter or do any work’, the owners were in breach of the contract to provide exclusive and uninterrupted possession of, and access to, the site to perform the contract. However, that breach ended on 1 August 2022 when the owners invited the builder to continue with the unfinished work. …. 72. For the above reasons, at the time of the termination the owners were not in breach of the contract. I have interpreted the reference to ‘in breach of [the contract]’ as meaning a current or ongoing breach, as opposed to one that had occurred and had been resolved. …

27. The Magistrate thus found at [74] that the Respondents were entitled to terminate the contract and to arrange for the completion of the work and to be compensated by the Appellant for those costs if that amount exceeded what would otherwise have been payable to the builder under the contract.

28. The reference at [70] to the payment being sought for a stage “not adequately completed” refers to evidence adduced by the Respondents of a Mr Nicholas Broadhurst, an expert builder who opined that the work necessary to complete the painting stage had not been done. Mr Broadhurst also said that other, earlier stages had not been completed, albeit the Respondents had already paid the Appellant for those stages.

29. The Magistrate accepted Mr Broadhurst’s opinion that the painting stage had not been completed at the time the Appellant sought payment for that stage.

30. As to the question of damages, at [58] the Magistrate set out the losses claimed by the Appellant consequent on the purported termination of the contract. The Magistrate found (at [55]) that the Respondents were entitled to liquidated damages for the delay between when Practical Completion was obtained and the date on which, according to the contract, it ought to have been achieved, being 180 days from the date of the contract. In relation to these damages, at [56] the Magistrate found a sum of $9,028 payable by the Appellant to the Respondents referrable to the delay in completing the contract.

31. His Honour set out the Appellant’s damages as follows (at [58]): (a) painting stage - $63,750 plus (b) practical completion - $21,250 plus (c) any other money payable under the contract, including any variation or actual cost provided under the contract; minus (d) liquidated damages for delay - $9,028; …

32. The Appellant’s claim for additional money referrable to variations was not allowed. The Magistrate concluded that there was no evidence of any written variation notice being issued to the Respondents before the email of 22 June 2022 which was not accepted by the Respondents, and thus the Magistrate concluded that the variation did not form part of the contract.

33. Turning then to the quantification of the losses said to have been incurred by the Respondents, the Magistrate referred to an itemised list of costs incurred in completing the building works. He noted that the Appellant did not deny those costs nor challenge the Respondents’ evidence that the costs were reasonably incurred. The Magistrate thus accepted the Respondents claimed costs of $148,939 from which was deducted the amounts found to be owed to the Appellant, and judgment in the sum of $82,038 together with interest was entered for the Respondents.

The Appeal

34. This appeal from the Magistrate’s decision is brought as of right pursuant to s 274(2) of the Magistrates Court Act 1930 (ACT). Because the amount involved is more than $2,000, leave to appeal is not required.

35. The appeal is conducted by way of a rehearing which was described by Refshauge J in Theodorelos v Nexus Products Pty Ltd [2009] ACTSC 149; 19 ACTLR 1 at [78]: [T]he appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned.

36. In Fox v Percy [2003] HCA 22; 214 CLR 118 at 126-7, Gleeson CJ, Gummow and Kirby JJ said: [T]he appellate court is obliged to conduct a real review of the trial and ... of [the trial] judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. (Citations omitted.)

37. No further evidence was sought to be adduced on the appeal.

38. The Appellant grouped the grounds of challenge to the Magistrate’s decision under headings. A copy of the Grounds of Appeal extracted from the Notice of Appeal is attached to these reasons for convenience (Annexure A).

Validity of the Respondents’ purported termination of the Contract.

39. At the centre of this group of grounds is the Magistrate’s unchallenged finding that the letter of 26 June 2022 excluding the Appellant from the site was a breach of clause 8 of the contract.

40. The Appellant’s argument was, in short, that while the Magistrate was correct in finding the Respondents in breach of clause 8 of the contract by excluding the Appellant from the site, his finding that the exclusion was for a limited time and brought to an end by the email of 1 August is erroneous.

41. In the reasons at [34] and [36], the Magistrate incorrectly refers to the date of the email as being 26 July 2022 and as a consequence he erroneously regarded the dispute resolution period as coming to an end in August when it was agreed between the parties that the dispute resolution period ended on 6 July 2022. While at [36] and again at [71] of his reasons, the Magistrate observed that the email of 1 August 2022 was sent before the expiration of the dispute resolution period, there is nothing in his reasons to suggest that this error was material to his ultimate conclusion and Ground d was not further pressed during the appeal.

Did the email of 1 August 2022 “cure” the Respondents’ breach of clause 8?

42. Grounds e and d of the Notice of Appeal are expressed as follows: e. the learned Magistrate erred in concluding that the respondents had invited the appellant to re-take exclusive possession of the site at all or alternatively within the dispute resolution period. f. the learned Magistrate erred in concluding that the respondents’ invitation for the appellant to attend the site and complete incomplete building works had any contractual force or effect.

43. In coming to his determination that the Respondents’ breach of clause 8 had been remedied, the Magistrate noted that the email excluding the Appellant was “limited by reference to time” being a reference to the dispute resolution period, agreed to expire on 6 July 2022 and thus, the “invitation to return” in the 1 August 2022 email, in effect, reset the contract.

44. Clause 8 obliged the Respondents to give the Appellant “exclusive and uninterrupted possession of and access to the site” in order to perform the contract.

45. Breach of clause 8 triggers Practical Completion with the attendant consequence that the Respondents were required to immediately pay the balance of the contract amount.

46. The Appellant argued that there is nothing in the terms of clause 8 which permits the reversal of the consequences of the breach. While that may be the strict application of the section, it is tolerably clear from the Appellant’s letter to the Respondents of 21 July 2022, that offers were made to return to the contract if the Respondents paid the outstanding stage invoice together with the variations claimed.

47. However, the better question is whether the Respondents’ invitation of 1 August for the Appellant to return, remedies the breach of clause 8.

48. The email from the Respondents of 26 June 2022 which purported to prevent the Appellant from being on site also contained a list of demands including a request for certification of work done, it seems, using subcontractors engaged by the Appellant to create a retaining wall, and to provide an explanation for how the asserted defects in stages already completed and paid for will be fixed by the builders, and concludes: The owners will send the final decision to the builder, either continuing or terminating this contract considering: i) the responses on the Action from Builder declared above, or ii) after eight business days (the end of the 20 Business days of the dispute resolution period).

49. The email of 1 August does not cure the Respondents breach. In coming to that view, the whole of that letter is instructive. It says: 1. Based on the SMS/WhatsApp messages sent from the builders to us on 19 and 22 March, 11 April and 25 May 2022, summarising that: the builder asked us to install the house utilities, cut and adjust the land with the neighbour, and construct the front retaining wall and outside stairs. • We proceeded to execute some of these tasks by sub-contractors, including installing two smart locks; the back wooden door of the garage and the wooden door of the laundry, which are not functioning by batteries. These two doors are in the tiny area “almost 1-1.5 meters” from the next neighbour, which the builder and their subcontractors have never used due to no stairs, debris, mud…etc. • We instructed my subcontractors to stop working on the tasks above since the email received by Laura McGee from the Master Builder association on Jul 6 2022. • We do not close any doors (six doors on the first floor): the electric garage door (not functioning as there is no electricity installed on the site), the main door entry (not installed), two big glass doors (bedroom 3 and alfresco area – their keys with the builder), and the two wooden doors. The builder can still access the site if they want to proceed with the incomplete and defective works in the previous and painting stages. …. (Emphasis added.)

50. The letter continues noting that the Respondents have asked the lending authority to provide a valuation and raised a question about the “variation” costs required and whether they are variations or prime costs/provisional cost items.

51. The Respondents requested a mediation meeting with the licensed builder within the next 10 business days.

52. Clearly then, the issue of the Appellant’s return to occupation of the site was heavily caveated on it providing satisfactory answers to the Respondents’ questions and other demands. It fell far short of inviting them to continue the building work with exclusive and uninterrupted possession of the site. Indeed, the invitation was limited to works in relation to previous stages.

53. It is also relevant that at the time of the sending of this letter, the First Respondent commenced the process to become registered as an owner-builder and he was provided with the necessary certification on 4 August 2022 (white card), and on 8 September 2022 (owner-builder certification). This evidence powerfully suggests that the Respondents had no intention of permitting the Appellant to continue on site and complete the works.

54. The Respondents’ offer that the Appellant could return to the site if “they want to proceed with the incomplete and defective works in the previous painting stages”, falls far short of an invitation giving the Appellant exclusive and uninterrupted possession of the site, but rather, is an invitation to the Appellant to fix up work already done and in finding that the letter of 1 August 2022 “cured” the Respondents’ breach of clause 8, the learned Magistrate erred.

Could the Appellant have re-entered the site?

55. Grounds g to f of the Appellant’s Notice of Appeal read as follows: g. the learned Magistrate erred by placing the onus on the appellant to prove that it had sought to regain possession of the building site after being excluded by the respondents, when the onus in fact rested with the respondents to prove that they had done all things necessary to remedy their breach of clause 8 of the contract. h. the learned Magistrate erred in concluding that the appellant had cash flow difficulties and would not or could not continue with building works until the respondents made additional payments when this proposition was not put to any of the appellant’s witnesses in cross-examination. i. the learned Magistrate erred in concluding that, as of 1 August 2022, there was no ongoing direction by the respondents prohibiting the appellant from returning to the site and continuing with the building works.

56. In determining whether the Respondents’ letter of 1 August 2022 had the effect of “curing” their breach of clause 8 of the contract, the Magistrate took into account that the Appellant was not prevented from physically accessing the site and concluded that not only was the site physically open but further found that the Appellant’s refusal to re-enter the site was because it was experiencing cash flow problems.

57. In both letters to the Appellant and in his evidence, the First Respondent maintained that the “site was open to the public” and the Appellant could have accessed it had it wished.

58. Mr Niazi, a director of the Appellant, said that sometime after 26 June 2022, he was told by a tradesman that the Respondents had secured the premises with “smart locks” and had removed the locks placed on the site by the Appellant. He said he attended and saw them for himself. He said he did not test the locks to see whether they were operative and was subject to significant criticism by the Magistrate in relation to this point, who said: 52. The evidence therefore demonstrates that following the owners’ refusal to pay the painting stage invoice, a dispute arose between the parties about whether the builder had access to the site. However, the builder did not try to enter, and the owners invited the builder to finish the incomplete work. … I find it inherently implausible that a builder who genuinely wanted to access the site to continue with the building works would not at least physically attempt to enter the building for example by using the handle of the digital lock to see if the door remained unlocked. I therefore approach Mr Niazi’s evidence with some disbelief.

59. In re-examination, Mr Niazi said that when he was told that the Respondents had removed his locks and put other locks on the site, he attended the site to take a photo for his solicitor. He added (T127.39-42): I took the picture. I saw the doors are closed. I didn’t touch it. I don’t want to get involved in anything like I tried to get in. So I just went there. I took the picture as evidence. Yes, door is closed and the locks are there.

60. Mr Niazi’s evidence was that he had been excluded from entering the site by the Respondents’ letter of 26 June 2022 and denied that he had been invited back to continue the work. Mr Niazi said in answer to questions posed by the Magistrate about a letter to the Respondents from their lending authority, which referred to matters which were incomplete on the site (T98.30-38): Could you have physically attended the work site on the property and completed the works? Could you actually have entered the work site?---No, I didn’t, because the response I, again, been such a long time. Response was given by my solicitor, again that one which I don’t remember, but I didn’t went to the physical respondent site because before, like more than a month ago, they took the possession and I don’t want to, before we agree with the third party, what I have already done and what they did. In that month I have no idea, so I was not taking responsibility of their, what they did on the site. …

61. Far from wishing to return to the site, Mr Niazi’s evidence makes it clear that he had no desire to access the site. At no time was it suggested to Mr Niazi that he was not being honest in his answers.

62. Turning then to the Magistrate’s conclusion at [53]-[54] that: On 21 July 2022, the builder’s lawyers sent the owners’ lawyers a letter which indicated a number of things. The most obvious, is the builder’s refusal to continue to proceed with any work until they received further payments. That was said to be in the context of subcontractors seeking payment of their invoices and the builder requiring funds to make those payments. The claim for further funds to pay subcontractors also occurs in circumstances of a contract with a staged payment plan, and where elements of the stages already paid had not been completed. The letter expressly used the claim that the builder was locked out of the site and directed not to attend the site to justify their reasons for not continuing work until they received further payment. In the above circumstances I find that the builder had cash flow difficulties in that they required further funding to pay existing invoices and there either would not or could not continue with building works until the owners made additional payments. …

63. There is no doubt that the builders were required to pay their subcontractors for work done. In relation to the joinery in the building, Mr Niazi said that the cupboards had been installed but not the doors because they were waiting to be collected from the joiner, but the Respondents owed more money for them. He agreed that the owners had paid the contract price of $21,000 for the cabinetry but said that the doors ended up being more expensive and the joiner wanted another $10,000 to release them.

64. In her cross examination of Mr Niazi, the Second Respondent suggested to him that at the point of the dispute over the payment of the painting stage invoice, she offered to give him 20 or 30 percent of the invoiced amount out of their own pocket if he was “struggling to pay the tradies”. Mr Niazi denied that conversation took place. It was never suggested to Mr Niazi that his refusal to return to work was because of cash flow problems, which it seems to me, as a matter of fairness ought to have been raised with him.

65. The payment for the joinery was taken up with Mr Khattak, another director of the Appellant. The First Respondent referred to a letter from the joiner to him to the effect that he would do no more work because he had not been paid. Mr Khattak said (T145.10- 15 (AB 491)): So with them, all invoices have been paid. So we have credit account with them. So we have a credit system with all tradies or suppliers. So that invoice for him, we have paid it, it’s all clear. When you asked me at that time, we had paid part or something, maybe not the complete one, but we have all credit account with them, so it’s our responsibility, it’s between us. Their invoice later on has been cleared, but at that time when you asked me, we would have made them a part payment.

66. Mr Khattak said that the joiner did not tell him he had stopped the work.

67. It was not suggested to Mr Khattak that the failure to return to the site was because of cash flow problems.

68. The inference that it was, was not available on the evidence and the Magistrate erred in finding so.

69. Given the unchallenged finding that the Respondents had breached clause 8 of the contract, it was for them to prove that they had, in fact, remedied that breach by giving the Appellant exclusive and uninterrupted possession of the site. The assertion that the site was “open to the public”, and whether or not the Appellant could physically have accessed the site, is a far cry from offering them exclusive and uninterrupted access to the site to continue the building works. His Honour’s finding that the Appellant had access of the relevant kind was not open to him on the evidence and was in error.

Were the Respondents entitled to terminate the Contract?

70. Grounds l and m read: l. the learned Magistrate erred in concluding that the respondents had validly terminated the contract. m. the learned Magistrate erred in concluding that the respondents had a right to terminate the contract and claim damages under clause 27 in circumstances where the respondents were, as at 23 August 2022, in breach of: i. clause 8, in that they had not returned exclusive possession of the site to the appellant; and ii. clause 25(f), in that the respondents had not paid the appellant the monies owing under the contract, despite practical completion being achieved.

71. The Respondents’ breach of clause 8 of the contract remained unremedied and brought the build to Practical Completion with the result that the Appellant was entitled to be paid the balance of the contracted sum which had been withheld by the Respondents.

72. It then follows that the Respondents were unable to terminate the contract and claim associated damages because they were in breach of the contract.

73. This is sufficient to dispose of the appeal, subject to the question of the Appellant’s entitlement to compensation because of the Respondents’ breach of the contract, however, I will consider the remaining grounds.

Did the Appellant unreasonably cease work on the building site?

74. Grounds n and o read: n: the learned Magistrate erred in concluding that the painting stage had not been reached when the painting stage invoice was issued. o: the learned Magistrate erred in concluding that the appellant had suspended works on 7 June 2022 without reasonable cause when this allegation was not pleaded and was not put to any of the appellant’s witnesses or raised in submissions by the respondents or the Court.

75. The resolution of this issue depends in part on whether the Appellant was entitled to call for the progress payment in relation to the painting stage.

76. On 7 June 2022, the Appellant sent the Respondents a claim for payment for the completed painting stage and on 22 June for certain variations.

77. However, the Respondents disputed that the invoice for the painting stage was due because the work was not completed.

78. Mr Niazi said that some aspects of the building work were deliberately not completed for a variety of reasons. For example, he mentioned the final coat of paint which needed to wait until the rest of the work was done. Other items such as the cupboard doors were waiting for the appliances to be installed. He also explained that before the building would be handed over to the Respondents, there would be an inspection and other items fixed up. One matter that was not completed related to some of the joinery which was waiting for payment from the Respondents.

79. Mr Niazi said that after the Respondents objected to the invoice, he met them at the house and explained why some items could not be completed until the other matters had been completed. Mr Niazi said that he again asked the First Respondent to make the payment and the First Respondent said he would not pay the full amount but offered Mr Niazi 50 percent of the payment. Mr Niazi said to the First Respondent he had to make payments to the tradespeople for the work that they had done (T57).

80. Mr Niazi’s evidence about how the works were to be completed and in which order was not challenged. Mr Niazi agreed with the Magistrate that the invoicing of the painting stage reflected the completion of the earlier stages and his Honour said (at T99.35-37): But you didn’t complete the painting in a range of ways because, and those ways included a third coat? -- yes And some other areas because you had not installed the cabinetry. Is that right? Or the joinery? -- some place you get the joinery. … And other thing I’m saying, only touch up because we are putting the lights and the plumbing stuff.

81. His Honour asked (T99.42-47): So plumbing, you were waiting for the painting because the – some joinery, some plumbing and some lighting. Is that right? --- Yes. Those things should have been installed before. Am I right about that?---No, no. Lighting, things are done after, you know, the painting work. That’s the last part.

82. The Magistrate referred Mr Niazi to a document from the Respondents’ lending authority in which it noted items which were not completed and in which the author expressed the opinion that the painting stage was not completed. In that letter the author referred to a part of the house where there was no painting.

83. Mr Niazi reiterated that the plumbing is completed before the last invoice is sent and, referring to the unpainted part, said that there was a water leak which required the removal of a gyprock sheet and said that he was waiting for that area to dry before it was patched and painted. Mr Niazi said that he explained this to the First Respondent when he visited the site with him.

84. The Second Respondent cross examined Mr Niazi about whether there was a missing gutter on a part of the roof.

85. His Honour then asked Mr Niazi apropos whether the contract specified there was to be a gutter in this particular place and said (T117.34-45 – 118.1-3): Would you still maintain your view that the house has reached its painting stage?---Yes, yes, I do, and that’s what I am saying; it’s not hand over. It doesn’t mean you reach that stage mean everything is finished before that stage. Everything is finished when you get the occupancy. Before occupancy that’s the reason you have a certifier to come and identify – if it’s not certified it’s not coming on the last invoice. It’s coming to check all the things from the start to the end and they point out - there might be a thing which was supposed to be done in the first stage, like the first progress payment, and they identify and they say, ‘No, these things are not right,’ or, ‘This is not – you know you have to do it this way.’ They come and pick it up and then builder responsible to fix it. Okay?---Because their viewing is a different way, they are viewing that this stage is finished, now all the things before that a hundred per cent is done. If that’s ok, the certifier will come out and he’d say - and they say no ---

86. His Honour took Mr Niazi to the contract where it refers to the completion of a stage despite minor omissions and/or minor defects and asked Mr Niazi if he considered the matters to which he was referred as being minor.

87. Mr Niazi said (T118.24-36): Yes, I am saying, and I’m saying, yes, at each stage have a minor thing which need to be fixed and we fix it before we hand over. And that’s why the progress payment says, some sections is not possible to finish the whole stage because they are relevant to each and other. And you finish one thing completely and then it’s okay, ‘This is done. Now I’m going to the second stage.’ There’s already …(inaudible)… for this sequence. You finish it like 1995 [sic] but soon you finish it, there are a few things left over. This might be depending on some other task on the next stage or maybe because you don’t have material. You can’t stop at that stage and say, ‘I’m not doing the next stage work because I have this 1 or 2 per cent remaining in the previous stage.’ If that’s the case, why we be putting the driveway, why are we putting the lights, why are we putting the garage door for the next stage, when we are net even paid for the previous invoice?

88. His Honour then said (T118.40-44): So I’m just trying to make sense of that answer, and are you saying that as a matter of sequencing and when trades are available … things may not be completely finished?---Yes. Evidence of the expert builder

89. Relevant to consideration of grounds n and o is the evidence of the expert builder, Mr Broadhurst, from whom the Respondents obtained a report on whether the painting work was completed.

90. The appellants contended that the Magistrate erred in admitting the evidence of Mr Broadhurst. Grounds a and b of the Appellant’s Notice of Appeal read: a: the learned Magistrate erred in admitting the evidence of Nicholas Broadhurst over the appellant’s objection in circumstances where that evidence had not been served in accordance with Court directions and was unfairly prejudicial to the appellant; b: in the alternative to ground A, the learned Magistrate in giving any weight to the evidence of Mr Broadhurst in circumstances where that evidence was based upon an inspection of the subject property prior to completion and the appellant was denied, despite request, the opportunity to have its own expert attend the property to conduct an inspection.

91. Counsel for the Appellant objected to the Respondents being permitted to rely on the report. While Mr Broadhurst’s statement was attached to the First Respondent’s witness statement, his report was not served as an expert report, the Respondents had not indicated that they proposed to call him as an expert, and it was not until just before the hearing that the Appellant was informed that the Respondents would be relying on Mr Broadhurst’s expert report. Counsel for the Appellant further argued that the Appellant had earlier sought the opportunity to have an expert go onto the site to look at the works and that was refused.

92. In the result, the Magistrate said that he would accept Mr Broadhurst’s evidence as to what he saw on the site and limit his evidence as to whether work was complete. Both in his report and his oral evidence, Mr Broadhurst offered his opinion that work referrable to earlier work stages was incomplete and gave evidence about what, in his opinion, should have been completed in the earlier building stages. Counsel for the Appellant did not object to Mr Broadhurst giving evidence in addition to his report nor to the parts of the evidence in which he sought to comment on whether earlier stages should have been completed. He was not cross-examined by Counsel for the Appellant.

93. It became apparent during the argument on the admissibility of Mr Broadhurst’s report that the unfairness complained of was that the Appellant was denied the opportunity to have the works inspected prior to their being completed by the Respondents. Once that had been done, it seemed to be accepted in the argument that another expert would not be able to comment usefully on whether works had been completed.

94. However, Mr Niazi could and did give evidence about the sequence in which the work was completed and the circumstances which meant that some work was not done at the time that particular stage was completed. His evidence was sufficient in the circumstances to cure the identified unfairness asserted in the ground and I do not accept that in admitting Mr Broadhurst’s report, his Honour erred.

95. Turning then to Mr Broadhurst’s report, in it he noted that some of the items that ought to have been included in the earlier work stages were not present in the building. As to the painting, he noted that for that stage to be completed, “there needs to be minimally eaves, balustrading, bulkheads, cornices, joinery, front door and more which are not there” (AB 1104).

96. Mr Broadhurst was invited by the Magistrate to comment on photographs of the work and express an opinion on whether it was complete. Mr Broadhurst agreed some works were incomplete, and he agreed that so far as the painting was concerned it might be wise to leave the final coat to the end. He said (T190.34-40): So it’s a cat and mouse type of thing, right, going round and round, right. So you want to have all the paint – because when the cupboards are in, you can’t go in and repaint everything where the edge of the cupboard is, because you can’t go down the side. It’s got to be finished, right. So it is sort of – there is this sort of, like a little bit of latitude, right, and I tell people the stage is never at the end of all that work, it’s the end of the stage ...

97. Mr Broadhurst said that you would want to see “effectively finished painting”.

98. Of course, as might be expected, Mr Broadhurst was merely commenting on what he had seen and his evidence was couched in terms of what in his opinion “should have” been completed. None of the issues to which Mr Niazi referred as holding up the painting stage such as the leak were put to him.

99. No doubt reasonable minds might differ about what work ought to have been done and when, however, in general Mr Broadhurst’s evidence about how and in what order things were done was broadly consistent with that of Mr Niazi who, however, was able to give evidence about why certain items had not been completed at that point.

100. Mr Niazi was not given the opportunity through cross examination by the Respondents to respond to Mr Broadhurst’s specific criticisms of the completion of the various stages prior to the painting stage. Had that been done, he may well have been able to explain why certain works remained to be completed which in my view represents a significant unfairness and at least would suggest a degree of caution should attend what weight is to be afforded to Mr Broadhurst’s opinion.

101. His Honour found (at [24]) after referring to Mr Niazi’s evidence about the sequence in which the work was conducted: The builder’s explanation for not completing the painting was because some joinery, plumbing and light fittings were yet to be installed and some ceilings needed to dry. While the qualifications described by Mr Broadhurst provide some degree of flexibility, as does the qualification in the contract in relation to minor omissions and defects, the work still needs to be otherwise completed before the stage can be said to be completed. It makes no sense to claim that the painting stage was completed, notwithstanding painting being incomplete because work for the earlier lock up and fixing stages remain incomplete.

102. His Honour then referred to Mr Broadhurst’s opinion about what work remained uncompleted and which should have been completed earlier to minimise costs and then concluded at [27] that the “building works had not been completed up to and including the painting stage”.

103. His Honour’s suggestion that it “makes no sense” to call a stage concluded when it was not completely finished, fails to take into account Mr Broadhurst’s and Mr Niazi’s evidence that, in this context, complete does not necessarily mean totally complete. Nor does his Honour’s conclusion take into account Mr Niazi’s unchallenged evidence that items from earlier stages were not installed until the end. Having regard to the whole of the evidence on this point, I am of the view that the evidence does not permit that conclusion to be safely drawn and I am not persuaded that while the painting work was incomplete it was not such as to deprive the Appellant from seeking payment for that stage and I find that the Magistrate erred in drawing that conclusion.

104. I therefore conclude that the Appellant was entitled to be paid for the painting stage and did not unreasonably suspend works because the Respondents refused to pay the requested amount for the painting stage.

105. Ground o contends that the Magistrate erred in finding that the Appellant ceased work without reasonable cause when this conclusion was not pleaded nor put to the witnesses. Whether an action taken was with reasonable cause is a conclusion to be drawn from the facts. Here, the Magistrate found that it was. It was not a matter that needed to be pleaded or put; the facts upon which this conclusion could be drawn were thoroughly ventilated during the hearing and no error arises. Damages

106. The Magistrate found that the Respondents were liable to pay the Appellant damages reflecting the painting stage ($63,750) and the balance of the contract amount representing practical completion ($21,250). There is no challenge to this finding.

107. His Honour did not allow for any payment to the Appellant in relation to the claimed variation costs. The ground of appeal challenging this finding (k), was not pressed.

Interest on the money owed to the Appellant

108. Ground c reads as follows: c. the learned Magistrate erred in failing to award the appellant any interest on its claim by concluding that there was no evidence of a final request for payment due on practical completion in circumstances where: i. that amount had been demanded in correspondence and in the Statement of Claim filed 24 November 2022; and ii. The need for such a demand had not been raised by the respondents or the Court with the effect that the Appellant was denied procedural fairness on this issue.

109. No interest was awarded to the Appellant in relation to the awarded sums because the Magistrate found that the Appellant had not made a written request for final payment.

110. In coming to that conclusion, his Honour referred to clause 25b which provides that on practical completion, the amount payable must be paid to the builder ten business days after the service on the owner of a written request by the builder giving particulars of the claim for final payment. He noted that the contract provided that if unpaid, the builder is entitled to interest at 20 percent.

111. His Honour referred to the correspondence between the parties and concluded that none amounted to a particularised written request for payment.

112. It was argued that his Honour erred in coming to that conclusion. First it was argued that the Magistrate misdirected himself by referring to the provisions of clause 25b which it was said does not apply to circumstances in which practical completion has been deemed to have occurred by reason of the conduct of the owner. Certainly clause 25f provides that the owner may not withhold money from the builder where practical completion is deemed to have occurred. There is nothing in the provisions of clause 25 which excludes the necessity of providing the owner with details of the sums to be paid.

113. Next it was argued that the Magistrate erred in finding that the Appellant had not provided the Respondents with a request for payment of the amounts owed under the contract.

114. The Appellant sent the Respondents a written invoice for the painting stage on 22 June 2022, which provided for payment of $63,750. This was not paid. On 28 July 2022 the Appellant’s solicitors wrote to the Respondents referring to their contention that they had been excluded from the site and that they were not provided with means to re-enter. The letter continues and says that the Respondents are thus in breach of clauses 8a and 24f of the contract and continues: The significant consequence of this is that Practical Completion has been reached and our client is entitled to receive the unpaid balance of the Contract Sum together with all other money payable under the Contract including interest at 20% per annum on late payments: clause 25a. of the Contract.

115. The Appellant’s reference to the contract is relevant here because Appendix B “Option 2” provides for the sums of money payable by the Respondents to the Appellant at various stages of the build. In particular it refers to $63,750 being payable at the completion of the painting stage and $21,250 payable on Practical Completion.

116. On 29 August 2022 the Appellant served on the Respondents a Notice of Dispute which sets out that (AB 1183): … C In accordance with clause 22(b) of the Contract, on or around 7 June 2022 the Builder served a written progress payment claim to the Owner (Progress claim) by sending the Owner a Tax Invoice for “Painting Stage – Internal and External Paint Completed” in the sum of $63,750.00. D Clause 23(a) of the Contract provides that ‘If the Owner, without reasonable cause, fails to pay any progress payment in full within the time indicated at Appendix A, Item A11, the Builder may, without affecting its right to end this Contract, suspend the Works’ E By Appendix A, Item A11 to the Contract, progress payments are to be made in full within 10 business days after service of a written claim and following Practical Completion. F The Owners failed, refused or neglect to pay the Progress Claim within 10 business days after service of the same without reasonable excuse and, in the alternative, following Practical Completion. G In accordance with Clause 23(a) of the Contract, the Builder suspended Works. H By Clause 22(d) and Appendix A Item A15 of the Contract, the Builder is entitled to interest on the overdue amount at the rate of 20%. …

117. By letter of 31 August 2022, after the Respondents had purported to terminate the contract, the Appellant informed the Respondents that it claimed “$103,527.50 plus interest in accordance with the Contract”.

118. The Magistrate found that none of these letters had the effect of providing the Respondents with a written request for final payment and thus declined to award interest to the Appellant in relation to the owed sums.

119. It is contended that his Honour erred in coming to that conclusion. There is nothing in the terms of the contract which provides that a particular form of words or phrases is necessary to constitute a request for payment sufficient to engage clause 25. His Honour’s conclusion that none of the documents to which he referred amounted to a request for final payment is unsupported by the evidence and I observe was not a matter raised by the Respondents in their submissions. This ground is established.

120. Finally, Ground c(ii) asserts error through want of procedural fairness because the need for a written claim for final payment was not raised in the proceedings, nor addressed by the parties during the hearing or in submissions. That is correct. No submission was made addressing this ground which might have identified or elaborated the want of procedural fairness or its effect. However, because I have found that his Honour’s conclusion about compliance with clause 25b is unsupported by the evidence, it is not necessary to determine this particular aspect of the challenge.

121. It follows that the Appellant is entitled to interest on the sums owed to it at 20 percent. It was argued that the Appellant should have interest on the painting stage component from 22 June 2022. I am of the view that the letter of 26 June 2022 provided the Respondents with a clear and unequivocal request for payment of the whole sum and interest should run from 10 business days after that date to the date of judgment.

122. The Appellant argued that the Appellant was entitled to pre-judgment interest on the Practical Completion payment to run from 10 business days after the letter of 26 June 2022. That sum should be awarded.

Liquidated Damages for delay

123. Ground j reads as follows: j. the learned Magistrate erred in his calculation of liquidated damages, in that he treated “days” under the contract as calendar days and not working days, with the effect that the amount of liquidated damages was erroneously increased.

124. At [55] and [56], his Honour turned to the question of liquidated damages referrable to the delay in completing the build and found that the Appellant’s delay should result in a payment by the Appellant to the Respondents of $9,028.

125. There was no dispute that the Respondents were entitled to liquidated damages in relation to the delay, however, it was argued that his Honour erred in calculating the delay. The Magistrate found the date of deemed Practical Completion to be 26 June 2022, and the date on which the build should have been completed was to be calculated at 180 days from the commencement date, which he found to be 23 July 2021. His Honour then found the date on which the build should have been completed to be 19 January 2022 and on that basis he calculated damages for delay. At the hearing before the Magistrate, the Appellant contended that the date on which the build should have been completed was 15 March 2022 while the Respondents argued that it should have been 1 March 2022. Nevertheless, the Magistrate found it to be 19 January which, it was submitted, is an error of calculation because his Honour took into account 180 calendar days, rather than 180 business days.

126. The contract at Appendix A item A10 bears the heading “DATE FOR PRACTICAL COMPLETION” and provides that: If the Commencement Date is not known at the date of signing the Contract, the Date for Practical Completion will be 180 Days after the commencement date.

127. “Days” is not defined in the contract and while the Respondents now contend that its proper meaning is “calendar days”, which is how the Magistrate calculated the time and not the position they took in the hearing, one needs only to look at Appendix A item A13 which refers to the Construction Period as being 180 business days after the anticipated commencement date of the work.

128. I accept the argument that to construe items A10 and A13 harmoniously and to give it sense, the word “days” in item A10 must mean “business days”. Read in this way, the Magistrate erred in calculating the damages by reference to calendar days and thus I accept the Appellant’s argument that the amount awarded to the Respondents for liquidated damages for delay should be $5,200.

129. As I have said, given the finding that the Respondents’ purported termination of the contract was invalid, their claim for damages to compensate them for completing the build cannot succeed. However, again for completeness, I will deal with the grounds relating to this aspect of the case. The Respondent’s claimed costs

130. Grounds p, q and r are as follows: p. the learned Magistrate erred in awarding the respondents damages for rectification of defective work which formed part of their claim when such claim was expressly abandoned by them in the course of the hearing; q. the learned Magistrate erred in awarding the respondents damages where the respondents failed to discharge their onus to prove that the amounts claimed were for work which was provided for in their contract with the appellant; r. the learned Magistrate erred in concluding that the costs claimed by the respondents were not denied on the pleadings;

131. Having found that the Respondents’ termination of the contract was valid, the Magistrate found that they were entitled to claim the cost of completing the build which should be set off against the sums that the Magistrate found were owed to the Appellant.

132. His Honour referred to an itemised list of costs tendered by the Respondents said to represent the completion of the work. The Respondents provided further receipts and invoices for those claimed costs.

133. His Honour said at [75]: In the pleadings, the builders did not deny those costs, nor challenge the evidence from the owners about those costs or that such costs were reasonable due to the incomplete building works. Accordingly, the only evidence I have about such costs are those provided by the owners, without any challenge to their quantum and causation. On their face they appear to be reasonable and would not have arisen but for the builder’s failure to continue with the building works. There were no submissions otherwise, and in those circumstances, I accept that evidence. Those costs total $148,939.

134. The Appellant asserted that the Magistrate erred in fact because the pleadings denied the claimed costs and their quantum, and denied that the Appellant was liable to the Respondents for those expenses.

135. There was no cross examination of the Respondents on these claimed expenses nor were there submissions made to the Magistrate as to whether they were reasonable or necessary. While not submitted in the appeal, it may well be that the Appellant, having been excluded from the site from June 2022, would have no knowledge of what the Respondents did to complete the build.

136. However, in submissions to the Magistrate, counsel for the Appellant noted that the Respondents’ claim for costs related to incomplete and not defective work but the submission to the Magistrate did not identify where the Respondents had incorrectly included costs of remedying defects as opposed to costs of completion in their claimed expenses.

137. In short, in relation to this ground, it was argued that the Magistrate erred in not appreciating that the pleadings joined issue with the Respondents on these costs, in not testing the Respondents’ claimed expenses and in not appreciating that some of those expenses relating to the Respondents’ claim for costs of rectifying work had been abandoned. The Appellant submitted that the Magistrate erred in not sifting the claimed costs of rectification from the claimed costs of completion, and added that the Magistrate could have called for further submissions.

138. True it is that the pleadings joined issue with the Respondents’ claim for costs. However, in the absence of particular submissions on the costs, the Magistrate was entitled to consider for himself those claimed costs to see whether they were reasonable. To the extent that he included costs in relation to an issue that had not been pressed was an error. Whether that error was material or not is difficult to ascertain because, as with the submissions to the Magistrate, in submissions on the appeal, there was no identification of which costs were wrongly included nor what those costs amounted to.

139. In those circumstances, while the Magistrate erred as asserted, I am unable to determine whether it was material to the result.

Interest of the Respondents’ claimed costs

140. Ground s is expressed as follows: s. the learned Magistrate erred in awarding the respondents interest upon interest in their counter claim.

141. His Honour (at [76]-[77]) took the figure that the Respondents owed the Appellant, less the damages referrable to the delay in Practical Completion, an amount of $75,972, and deducted that amount from the Respondents’ claimed costs of $148,939, leaving the sum of $72,967 to be paid by the Appellant to the Respondents.

142. His Honour then turned to the question of pre-judgment interest on that sum which the Respondents claimed was incurred up to 24 December 2022, and awarded interest from 24 December 2022 until the day before judgment was delivered, 26 July 2024. The costs were assessed pursuant to the rates prescribed in Sch 2, 2.2 of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules) and which the Magistrate calculated to be $9,071, coming to a total verdict sum of $82,038.

143. His Honour ordered: Judgment be entered for the defendants in the amount of $82,038, with the usual orders as to interest after judgment.

144. The Appellant contends that in so doing in breach of r 1620 of the Court Procedures Rules, his Honour applied interest over the whole sum which already included an interest component.

145. Rule 1619 provides that a Court may order interest on a sum up to the day before the delivery of judgment, and his Honour specifically identified that rule in coming to the conclusion about pre-judgment interest. However, r 1620 does not provide for the “giving of interest on interest payable under this rule”. Thus, the order which provided for interest to be paid on the entire verdict amount of $82,038 was in error.

Orders

146. For those reasons, the following orders are made. (1) The appeal will be allowed, and the orders of the Magistrate will be set aside. (2) I will direct the parties to prepare a minute of order giving effect to the redetermination of the question of the Appellant’s claim for compensation and interest. (3) The Appellant sought an opportunity to be heard on the question of consequential orders and as to costs, and I will direct the Appellant to file and serve submissions as to consequential orders and costs within 14 days of the date of the making of these orders. (4) The Respondents are to file one submission in reply to those submissions within 14 days after being served with the Appellant’s submissions. (5) The submissions are to be no longer than 5 pages.

I certify that the preceding one hundred and forty-six [146] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ainslie-Wallace. Associate: Date: 16 October 2025 Annexure A

Grounds of Appeal extracted from the Appellant’s Notice of Appeal lodged on 7 August 2024 1. The grounds of the appeal are: a. the learned Magistrate erred in admitting the evidence of Mr Nicholas Broadhurst over the appellant's objection in circumstances where that evidence had not been served in accordance with Court directions and was unfairly prejudicial to the appellant. b. in the alternative to Ground A, the learned Magistrate in giving any weight to the evidence of Mr Broadhurst in circumstances where that evidence was based upon an inspection of the subject property prior to completion and the appellant was denied, despite request, the opportunity to have its own expert attend the property to conduct an inspection. c. the learned Magistrate erred in failing to award the appellant any interest on its claim by concluding that there was no evidence of a final request for payment due on practical completion in circumstances where: i. that amount had been demanded in correspondence and in the Statement of Claim filed 24 November 2022; and ii. the need for such a demand had not been raised by the respondents or the Court with the effect that the appellant was denied procedural fairness on this issue. d. the learned Magistrate erred in concluding that the respondents had taken exclusive possession of the site on 26 July 2022, when the evidence disclosed that the respondents had taken possession of the site from 26 June 2022. e. the learned Magistrate erred in concluding that the respondents had invited the appellant to re-take exclusive possession of the site at all or alternatively within the dispute resolution period. f. the learned Magistrate erred in concluding that the respondents' invitation for the appellant to attend the site and complete incomplete building works had any contractual force or effect. g. the learned Magistrate erred by placing the onus on the appellant to prove that it had sought to regain possession of the building site after being excluded by the respondents, when the onus in fact rested with the respondents to prove that they had done all things necessary to remedy their breach of clause 8 of the contract. h. the learned Magistrate erred in concluding that the appellant had cash flow difficulties and would not or could not continue with building works until the respondents made additional payments when this proposition was not put to any of the appellant's witnesses in cross-examination. i. the learned Magistrate erred in concluding that, as of 1 August 2022, there was no ongoing direction by the respondents prohibiting the appellant from returning to the site and continuing with the building works. j. the learned Magistrate erred in his calculation of liquidated damages, in that he treated "days" under the contract as calendar days and not working days, with the effect that the amount of liquidated damages was erroneously increased. k. the learned Magistrate erred in not awarding the appellant any amount towards the variation invoice. l. the learned Magistrate erred in concluding that the respondents had validly terminated the contract. m. the learned Magistrate erred in concluding that the respondents had a right to terminate the contract and claim damages under clause 27 in circumstances where the respondents were, as at 23 August 2022, in breach of: i. clause 8, in that they had not returned exclusive possession of the site to the appellant; and ii. clause 25(f), in that the respondents had not paid the appellant the monies owing under the contract, despite practical completion being achieved. n. the learned Magistrate erred in concluding that the painting stage had not been reached when the painting stage invoice was issued. o. the learned Magistrate erred in concluding that the appellant had suspended works on 7 June 2022 without reasonable cause when this allegation was not pleaded and was not put to any of the appellant's witnesses or raised in submissions by the respondents or the Court. p. the learned Magistrate erred in awarding the respondents damages for rectification of defective work which formed part of their claim when such claim was expressly abandoned by them in the course of the hearing. q. the learned Magistrate erred in awarding the respondents damages where the respondents failed to discharge their onus to prove that the amounts claimed were for work which was provided for in their contract with the appellant. r. the learned Magistrate erred in concluding that the costs claimed by the respondents were not denied on the pleadings. s. the learned Magistrate erred in awarding the respondents interest upon interest in their counterclaim.