Lee v Big Dipper Constructions Pty Ltd; Big Dipper Constructions Pty Ltd v Lee

Cases Cited: Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99, 109–110; [1973] HCA 36
Bellgrove v Eldridge (1954) 90 CLR 613, 618; [1954] HCA 36
Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd (2017) 95 NSWLR 82; [2017] NSWCA 151 at [114]
Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596; [1979] HCA 512, 607
Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd (No 2) (2012) 287 ALR 360; [2012] WASCA 53 at [47]

Category: Principal judgment

Parties: Eun Sung Lee (Plaintiff)
Big Dipper Constructions Pty Ltd (First Defendant/Cross-Claimant)
Tiajiao Zheng (Second Defendant)
Man Jo Jung (Third Defendant)

Representation: Counsel:
Mr R Notley (Plaintiff/Cross-defendant)
Mr D O’Connor (First Defendant/Cross-claimant, Second Defendant and Third Defendant)
Solicitors:
Mr S Y Kim (Plaintiff)
Mr Y Cho (First Defendant/Cross-claimant, Second Defendant and Third Defendant)

File Number(s): 2024/00293372

Publication restriction: None

JUDGMENT

Introduction:

1. These proceedings involve a dispute between a builder and an owner, in relation to a home-building contract. The contract concerned the property known as XX Glanmire Road, Baulkham Hills (“the Property”).

2. The plaintiff is a registered proprietor of the Property (“the Owner”).

3. The first defendant, Big Dipper Constructions Pty Ltd (“the Builder”), conducted a residential construction business in New South Wales, and was the holder of contractor licence 325199C (“the Builder Contractor Licence”) issued under Division 1 of Part 3 of the Home Building Act 1989 (NSW) (“HBA”);

4. The second defendant, Tiajiao Zheng (“Mr Zheng”), was the sole director and secretary of the Builder, as well as the sole shareholder of the Builder.

5. The third defendant, Man Jo Jung (“Mr Jung”), was the nominated supervisor under the Builder Contractor Licence, as well as and the holder of contractor licence 226967C issued under Division 1 of Part 3 the HBA;

The Contract

6. On 27 July 2021, the Owner and the Builder entered into a written lump sum contract for alterations and additions to the dwelling at the Property (“the Works”). The contract price was $540,100.00 (“the Contract”).

7. It was not in dispute that the Works were comprised of:

(i) Residential building work within the meaning of the HBA; and (ii) Construction work within the meaning of Part 4 of the Design and Building Practitioners Act 2020 (NSW) (“DBPA”).

8. The plaintiff submits the Works were not completed by the Builder by the completion date under the Contract. It relied upon this fact to purport to terminate the contract.

9. The Builder has also purported to terminate The Contract.

The Plaintiff’s Claim

10. The plaintiff’s case is in damages, reliant upon what it asserts to be its lawful termination of the Contract. The plaintiff also seeks damages in respect of certain defects said to have been occasioned by the work undertaken by the Builder. Ultimately, this aspect of the case has largely not been pressed.

11. The plaintiff claims, in respect of these defects, damages not only against the first defendant but against second and third defendants.

12. In summary, in respect of the defects, the Owner claims that:

“i. The Builder breached express terms of the Contract, the statutory warranties implied by section 18B of the Home Building Act 1989 (NSW) (“HBA”), the guarantees in clauses 54, 55, 60 and 61 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“ACL”), and the duty imposed by section 37 of the DPBA;

ii. Each of Mr Zheng and Mr Jung were involved in the contraventions of the ACL by the Builder; and

iii. Each of Mr Zheng and Mr Jung breached the duty imposed by section 37 of the DBPA."

13. I did not understand that this analysis was disputed by the defendants, and indeed by first hearing the fact of the defects was agreed.

The Cross-claim

14. The first defendant has cross-claimed against the Owner, seeking the sum of $10,000 said to be owing in respect of certain unpaid progress claims. As to the purported termination by the Owner, the Builder says that the Owner was not entitled to terminate the Contract and says that the Owner’s purported termination itself constituted repudiatory conduct, which repudiation has been accepted by it. The Builder seeks damages for loss of bargain consequent upon what, it says, was the plaintiff’s wrongful termination and repudiation.

Further Relevant Contractual Terms:

15. Clause 5 of the Contract provided for the date upon which the Builder must commence the Works. This was expressed as being a number of working days from:

“a. the date of the contract, or

b. if approval of the local council or other statutory authority has still to be obtained for the work, the date of written notification of that approval, or

c. if the consent of the lending authority is required, the date of written notification of consent that the work may proceed, whichever is latest.”

16. The number of working days, however, was not specified in clause 5 of the Contract. The relevance of this, if any, will be addressed further below.

17. Clause 6 provided that the Builder must diligently proceed and complete the Works within 29 calendar weeks from the date the work was due to commence pursuant to clause 5. The 29 calendar weeks took into account any public holidays and other days when it was known that the Works would not be performed. Further, it stated that time for completion could be subject to amendment in accordance with clause 7 of the Contract.

18. Clause 12 provided that the Owner was to pay the contract price of $540,100 (“the Contract Price”) by way of progress payments.

19. As I have indicated, the number of working days was not specified in clause 5 of the Contract. The parties have approached the question of the commencement day of the Works by reference to the date on which the Builder, in fact, commenced the Works.

20. In this regard, the Owner alleges, that the Builder commenced the Works on Friday, 20 August 2021: see [20] of the Statement of Claim. The defendants deny this and say that the Works commenced on Monday, 23 August 2021: see [16] of their Defence. However, in their affidavits, both the Owner and Mr Jung give evidence that the Works commenced on Monday, 9 August 2021.

21. Based on a commencement date of 20 August 2021, the Owner pleads that, pursuant to clause 6 of the Contract, the Builder was required to diligently proceed and complete the Works by 1 March 2022: see [21] of the Statement of the Claim. The defendants deny this and say, based on a commencement date of 23 August 2021, the completion date was 14 March 2022: see [17] of their Defence.

22. In short:

(a) If the commencement date was 9 August 2021, then the completion date pursuant to clause 6 of the Contract, being 29 calendar weeks later, was 28 February 2022; (b) If the commencement date was 20 August 2021, then the completion date pursuant to clause 6 of the Contract, being 29 calendar weeks later, was 11 March 2022; and (c) If the commencement date was 23 August 2021, then the completion date pursuant to clause 6 of the Contract, being 29 calendar weeks later, was 14 March 2022.

23. The Owner submits, however, that ultimately nothing turns on whether the completion date, pursuant to clause 6 of the Contract, was 28 February 2022, 11 March 2022, or 14 March 2022. That is because it is not in dispute that the Works were not completed by any of those dates.

24. As I understood it, the Builder did not demur from that proposition.

25. Clause 24 of the Contract provided as follows:

“If the owner, without reasonable and substantial cause:

• denies the contractor or the contractor’s sub-contractors access to the site so as to prevent the work from proceeding, or otherwise prevents the contractor from carrying on the work; or if the owner becomes bankrupt, assigns assets for the benefit of creditors generally, makes a composition or other arrangement with creditors or, if the owner is a company, goes into liquidation or receivership or is otherwise without full capacity,

the contractor may, without prejudice to any other rights under the contract, suspend the work by giving written notice to the owner in accordance with Clause 28 (Giving of Notices) specifying the reason.

If the owner remedies the default, the contractor must recommence the work within 10 business days unless the contractor has ended the contract under Clause 26.”

26. Clause 25 was in the following terms:

“Due to the fault of the contractor

If the contractor:

• is unable or unwilling to complete the work or abandons the work

• suspends the work before completion without reasonable cause

• becomes bankrupt, assigns assets for the benefit of creditors generally, makes a composition or other arrangement with creditors or, if the contractor is a company, goes into liquidation or receivership or is otherwise without full capacity

• fails to proceed diligently with the work

• fails to remedy defective work or remove faulty or unsuitable materials, or

• without reasonable cause fails to comply with an order or direction of a public authority with respect to defective or incomplete work, which would substantially affect the quality and/or progress of the work,

the owner may, if such default can be remedied, notify the contractor in writing that unless the default is remedied within 10 business days or such longer period as specified the owner will terminate the contract.

If the contractor does not comply with the owner’s request within the time allowed, or if the default cannot be remedied, the owner may terminate the contract by giving written notice to that effect to the contractor.

If the owner terminates the contract due to the fault of the contractor, any unfixed materials or fittings on the site may be retained by the owner.

Following the issue of a notice by the owner under this clause no unfixed materials or fittings shall be removed from the site by the contractor.

If the reasonable cost of completion of the work exceeds that which would have otherwise been due under the contract the difference will be a debt payable by the contractor to the owner. Should the reasonable cost of completion be less than otherwise due under the contract the difference will be a debt payable to the contractor.

Until completion of the work the contractor will not be entitled to any further payment under this contract. However, nothing contained in this clause may take away any right the contractor may have to payment under the dispute resolution procedure in Clause 27.

Other than due to the fault of the contractor

The owner may also terminate the contract by notice in writing to the contractor in the following circumstances:

• if the owner, within the cooling off period, does not wish to proceed with the contract (see Clause 3)

• if all necessary approvals for the work have not been obtained within 60 business days of the date of the contract (see Clause 17), or

• if the owner is unable to meet the cost of a variation due to a matter that could not reasonably be expected to be necessary for the completion of the work or a requirement of the council or other statutory authority (see Clause 13).

A notice required under this Clause must be given in accordance with Clause 28.

If the owner ends the contract in the above circumstance, the contractor may remove from the site and retain all unfixed materials, fittings and equipment supplied by the contractor.”

The First Purported Termination Notice:

27. On 20 February 2022, the Owner sent a notice purporting to set in motion the process of terminating the Contract. This document (“the First Termination Notice”) appears to have been prepared by the Owner personally. It asserted a right to terminate based on non-compliance with the contractual time for completion. In the First Termination Notice, the Owner asserted that the contractual completion date was 29 February 2022 [sic]. It thus asserts a contractual termination date of 4 March 2022.

28. In the First Termination Notice, the Owner asserted that Mr Jung, “does not know how to manage the construction site or handle each process”.

29. The First Termination Notice continued:

“Therefore, for site cleanup, please submit the following conditions and various documents for access to the construction site by other employees other than Man Jo Jung (as company employee) for the next two weeks.

Unless the following conditions and various documents are fully presented, Big Dipper Construction staff and Sub Contractor are not allowed to enter the site.

Therefore, in order to take out personal tools or equipment after two weeks, you must personally go through legal procedures for site access.

Requiring proof of personal identity of construction-related employees is a situation in which Man Jo Jung (as company employee) cannot understand the interpretation of the contract, and the unclear mutual transaction contract with Man Jo Jung (as company employee) and the company is unreliable. That’s why I can’t trust who the other construction workers are as well.

Keep in mind, access to the site is restricted due to the deceptive behaviour of Man Jo Jung (as company employee), and other employees can access the site under the following conditions. For two weeks, know that I am not trying to block other employees from accessing the site.****” (Bold in original)

30. In the course of dealing with the question of removal of construction waste, the Owner asserted:

“[2] Employees other than Man Jo Jung (as company employee) must dispose of all construction wastes currently left on the site.

Failure to do so will result in a $10,000.00 waste disposal fee.”

31. Accordingly, the Owner made it perfectly clear in the First Termination Notice that if there was access to the site by the defendant or its contractors after 4 March 2022, the Owner would involve the police, stating:

“After the contract termination date, 4th March 2022, all existing construction equipment inside the site will be moved to the outside for smooth construction, and damage cannot be compensated for.

After one month from the construction expiration date, it will be reported to the police station and disposed of as construction wastes.

Ignoring all the above, when approaching the scene, we plan to report the CCTV recorded photos and videos installed around the house and the registration number of the car parked on the street to the police station.”

32. It can be seen, therefore, that while the drafting of the First Termination Notice could have been better, it is emphatic as to the Owner’s refusal to allow Mr Jung onto the site after its date, namely after 20 February 2022. It should also be borne in mind that the Builder was required to nominate a qualified person such as Mr Jung to carry out the work as the value of the Works exceeded $5,000. As Mr Jung stated in his affidavit, [12] and [13]:

“[12] I was responsible for supervising all building works carried out by Big Dipper and its employees. I was required to be physically present on the job site to properly supervise the works performed by Big Dipper.

[13] Big Dipper was not permitted to carry out any works if my access to the job site was restricted or refused by the owner.”

33. This evidence was unchallenged.

34. In the circumstances, therefore, barring Mr Jung from the site was, in reality, stopping the construction.

35. In my view, the banning of Mr Jung from the site was clearly a denial of the Builder’s access to the site. Mr Jung’s barring from the site was unequivocal. That banning was never unequivocally revoked or, indeed, even arguably revoked.

36. In my view, the denial of access to the site constituted a breach of clause 24 of the Contract.

Events following the First Termination Notice

37. Solicitors then became involved in the dispute which was emerging between the Owner and the Builder. The Owner submitted that, in the course of the communications between the solicitors, the ban on Mr Jung was revoked. I do not accept this is so. The Owner submitted:

“First, on 3 March 2022, David Chang Legal, the then solicitor for the Builder, sent a letter to the Owner which stated, inter alia, that:

You, as the owner, must allow our client, and any employee or sub-contractor of our client, access to the site immediately (Clause 19 of the home building contract). This is including but not limited to Mr Man Jo Jung (also known as Joe Jung) who is an employee builder of our client.

On 16 March 2022, KWL Lawyers, the solicitor for the Owner, sent an email to David Chang Legal which stated inter alia:

In the meantime, would you please direct all communication regarding this matter to our offices. Also, please note that the site remains accessible to your client should your client consider it necessary to attend the site and carry out works in accordance with the building contract.”

38. In my view, the unequivocal ban placed on Mr Jung required an unequivocal revocation in order to be effective. The highest which the Owner’s case rises in this regard appears to be the KWL letter of 16 March to which I have earlier referred, where it is stated that “the site remains accessible to your client”. The word “remains” to my mind, at best, conveys a continuation of the status quo. The 16 March letter may be capable of being construed as allowing employees or contractors of the Builder other than Mr Jung to gain access to the site, but it most certainly does not specifically grant access to Mr Jung.

39. In that regard, it should be borne in mind that, absent an unequivocal revocation of the ban which the Owner had placed upon him, Mr Jung exposed himself to the risk of both criminal charges and civil liability should he intrude onto the site, from which his license to enter had been revoked.

40. On 21 April 2022, the Owner’s solicitors in a letter stated:

“We are instructed that the last time your client attended the site was on site was on 30 March 2022. Since that date, your client has not returned to the site to carry out any further works in accordance with the building contract. Further, no tradesperson or representatives on behalf of your client have attended the site.

Would you please confirm, by no later than 4pm on Tuesday, 26 April 2022, the following:

(1) Your client’s reasons for suspending work and not attending the site since 30 March 2022;

(2) Whether your client intends to resume carrying out works in accordance with the building contract; and

(3) If your client does not intended to resume carrying out works in accordance with the building contract, the date your client (its tradesperson and/or representative) will return to site.”

41. Somewhat curiously the following day, on 22 April 2022, the Owner’s solicitors sent a further letter which stated:

“Please note that notwithstanding the rectification of defects, your client must continue to carry out the outstanding building works in accordance with the building contract (including the concrete floor slab of the garage and the steel frames for the balcony and stairs). Finally, we note that your client is in breach of clause 6 of the building contract insofar as the your client has failed to complete the works within the 29 weeks from the date of commencement of the works. Therefore, we request that your client provide us with the date your client anticipates it will complete the building works in accordance with the building contract. Please note that our client’s rights pursuant to the building contract and at law with respect to your client’s breach are reserved.”

42. I have described this letter as “curious” as the Owner had purported to terminate the contract more than a month earlier. This occurred through the aegis of the purported First Termination Notice, a document which the Owners’ solicitors seemed anxious to avoid mentioning. Indeed, the letter of 21 April 2022 was also curious insofar as it required an explanation as to why the Builder had suspended the Works. This was curious, in my view, as the Owner well knew, that by banning Mr Jung from the site it was denying the Builder access to the site.

43. On 12 August 2022, following a dispute resolution process, the Owner purported to again terminate the contract. On 23 August 2022, the Builder’s solicitor sent a letter to the Owner’s solicitor disputing the Owner’s entitlement to terminate the contract. The Builder’s letter indicated inter alia as follows:

“Our client relies on the following facts:

1. On or about 20 February 2022, your client purported to terminate the contract between parties. Your correspondence overlooks this matter and the prevention of our client accessing the property to undertake any further works. For clarity, the licence provided to our client to attend the property was revoked by your client on or about 20 February 2022.

2. The correspondence of 20 February 2022 was not simply a purported termination of the Contract, it was also a specific removal of the licence granted by your client for the employees of our client to gain entry to the site, specifically Man Jo Jung.

3. In the correspondence of 20 February 2022, your client has stated as follows:

Unless the following conditions and various documents are fully presented, Big Dipper Construction staff and Sub Contractor[s] are not allowed to enter the site.

Therefore, in order to take out personal tools or equipment after two weeks, you must personal go through legal procedure for site access*”* …

Keep in mind, access to the site is restricted due to deceptive behaviour of Man Jo Jung (as company employee), and other employees can access the site under the following conditions, …

4. We relevantly note that Man Jo Jung, the nominated supervisor of our client was denied access to the site by your client. Despite request, access was never restored.

5. This denial of access, despite request, was not remedied, and your client has created the self-induced indicia that they now purport to rely upon in terminating the Contract. In correspondence from our client’s former legal representation dated 3 March 2022, access was specific requested so that our client could attend the site. Such request was not responded to, and your client has continued to deny access to our client as to the works.”

Which termination was lawful?

44. It can be seen that at hearing it was common ground that the Contract had in fact been terminated, the principle issue between the parties became reduced to the issue as to which termination was valid, and thus which party was entitled to damages.

45. Mr Notley, of counsel, who appeared for the Owner, accepted that the denial of access to Mr Jung was a breach of the Contract. The following exchange occurred during final oral submissions on 18 December 2025 (Tp, 110(32)-1111(1)):

HIS HONOUR: Your client refusing to allow Mr Jung on the site is a breach of contract, is it not?

NOTLEY: Yes, it would be a breach of the clause required giving access.

HIS HONOUR: So, you can’t set up your own default to profit from it, can you?

NOTLEY: Under the Common Law right of termination, no. But under the contract, yes, because the contract regulates the manner in which the parties can terminate.

HIS HONOUR: But I’ve been looking at this. It’s an ancient principle and it’s a principle of contractual construction as well, that the Court will not allow a party to rely on its own default.

NOTLEY: Well, I say that the builder under the contract - the contract is clear. The builder can suspend work if the owner denies access, but the builder has to follow a process for doing so. The builder did not follow that process. Therefore, the suspension was without reasonable cause. Therefore, the owner is entitled to terminate the contract.

46. I do not accept Mr Notley’s submission as to his client’s right to terminate.

47. Mr Notley’s submission was founded on the proposition that the Builder failed to follow the contractual procedure necessary to rely on a denial of access in suspending the Works. This was a reference to clause 24 of the contract. There are several answers to Mr Notley’s contention in my view.

48. At common law, as Mr Notley appeared to accept, the Owner could not set up his own breach of contract in denying the Builder access and then use this as a basis to terminate the contract reliant on the suspension of the work caused by that very refusal of access. To do so otherwise would, in my view, allow the owner to take advantage of his own wrong. To the extent to which there is a distinction between the two canons of contractual construction, the Owner’s actions in denying access to the Builder would also be contrary to what is sometimes referred to as the Prevention Principle. Pursuant to this canon of construction, neither party to a contract can insist on performance of an obligation by the other party if it is their own actions which has prevented the other party from performing (see Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd (No 2) (2012) 287 ALR 360; [2012] WASCA 53 at [47]. In that case, their Honours explained that the Prevention Principle may be regarded as a particular manifestation of the obligation on the parties to co-operate which is implied by law into all contracts. See also Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596; [1979] HCA 512 at 607 (Mason J), and Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd (2017) 95 NSWLR 82; [2017] NSWCA 151 at [114]).

49. It should be noted that, pursuant to clause 24, the right to suspend by giving notice is “without prejudice to any other rights under the contract.” This, to my mind, would include the Builder’s right to terminate at common law, which in my view entitled the Builder to suspend the works without provision of reasonable written notice as to the reasons for that suspension.

50. The second reason why, in my view, the Owner is precluded from relying on the lack of written notice by the Builder is that clause 24 would not be construed as requiring the Builder to notify the Owner of the reasons for suspension which the Owner clearly already knew. This consideration arises, a fortiori, in this case, where the Owner was the very cause of that suspension of work. To conclude otherwise would, in my view, lead to a result which is capricious or unreasonable, and thus a construction which the law strives to avoid (see Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99, 109–110; [1973] HCA 36).

Conclusion on Termination

51. In my view, by service of the First Termination Notice, the Owner evinced an intention to no longer be bound by the Contract, which conduct was repudiatory conduct entitling the defendant to terminate.

52. The Builder is entitled to damages accordingly.

The Defects Case

53. Ultimately, the plaintiff’s case on defects was limited to two defects identified in the report of Mr Gordon Xue, which report was relied upon by the plaintiff. The two defective items were items numbered by Mr. Xue as 13 and 14. Item 13 concerned substandard brickwork with inconsistent perpend thickness to facebrick. Item 14 concerned inconsistent gaps between the windowsill brick and window frame. Items 13 and 14 were in close proximity to each other.

54. The first defendant’s expert, Mr Nakhla, agreed that items 13 and 14 constituted defective work. The dispute between the experts is how the defects should be dealt with, if at all. Mr Xue opined that the relevant external wall should be demolished and rebuilt. This exercise he costed in the sum of $75,975.

55. Mr Nakhla, who was called by the first defendant, described defect 13 as being ‘an aesthetic issue only’. Notwithstanding that the Owner had retained new builders following the termination of the Contract to complete the works and remedy such defects as required remedial work, Mr Nakhla noted that the Owner had elected to leave the defects unremedied. He had certainly not seen fit to demolish the wall. Mr Nakhla said that the appropriate approach to item 13 was to render the wall concerned, at a cost of $1,611.96.

56. Item 14, as I have indicated, is on the same wall as item 13. Mr Nakhla opined that if the wall was rendered it would also remedy item 14. I accept that evidence. I also accept his evidence that, absent rendering, the gaps constituted by item 14 could be remedied by the application of flexible sealant.

57. I do not consider the demolition of the wall, as suggested by Mr Xue as a means to address item 13, could be considered in any sense “reasonable” or “necessary” (see Bellgrove v Eldridge (1954) 90 CLR 613, 618; [1954] HCA 36). Mr Nakhla’s approach is to be preferred in my view.

The Alleged Unpaid $10,000

58. The Builder, by way of cross-claim, claims the sum of $10,000, being two sums of $5000 which it says remain owing by the Owner on progress payments 1 and 2.

59. The Owner says that there was an oral agreement between him and the Builder for the Builder to accept progress payments 1 and 2 with a reduction of $5000 from each. It seems to me, however, that as the progress payments’ invoices were issued in the sums set forth in the contract, the Owner bears the onus of establishing what he currently asserts to be an oral variation of the contract. In my view, the Owner has not done so.

60. On the contrary, in my view, the inherent probabilities favour a finding in favour of the Builder on this issue. I take this view as the parties in their written contract had agreed on a mechanism for contractual variation, which involved the reduction of the terms of any variation to writing. This, on the Owner’s case, did not occur. Significantly, and leaving the contractual variation provisions to one side, there was simply no writing of any nature evidencing the alleged oral variation. In my view, if the oral variation had occurred, as alleged, the existence of that oral variation would have been evidenced in some way or other in writing.

61. Thus, I conclude that the cross-claimant has established its entitlement of the sum of $10,000.

Conclusion on the Plaintiff’s Claim

62. I find that the defendants are liable to the plaintiff in the sum of $1,611.96 by way of damages attributable to the rectification of the defects 13 and 14.

Conclusion on the Cross-claim

63. As I have indicated, I find that the Builder validly terminated the contract, consequent upon the Owner’s repudiation of it. In my opinion, the Builder is therefore entitled to damages for loss of bargain. These damages should be calculated as follows:

64. Profit lost on the Contract, being profit on the Contract less amounts paid by the Owner pursuant to progress payments 1 and 2. The experts were agreed that the Builder’s profit was typically 15%. Thus, the loss of profit claim is calculated as follows:

The Contract Price of $540,100, less amounts paid in respect of Progress Claims 1 and 2.

Progress Claim 1 = $22,005

Progress Claim 2 = $103,020

Total Progress Claim payments = $125,025

Unpaid contractual balance = $415,075

Profit thereon at 15% = $62,261.25

Plus, unpaid sums on payment claims 1 + 2 = $10,000

Total Builder’s Damages = $72,261.25

2. As the Builder, in a practical sense, has been overwhelmingly successful in the Proceedings, it should receive a Costs Order in its favour. I would make no Order for Costs in respect of the Costs of the second and third defendant.

Orders:

1. That there be Judgment and verdict for the plaintiff against the defendants in respect of the plaintiff’s claim in the sum of $1,611.96.
2. That there be Judgment and verdict for the cross-claimant against the cross-defendant in the sum of $72,261.25.
3. Interest on each verdict sum at the rates pertaining pursuant to s 100 of the Civil Procedure Act 2005 (NSW).
4. The plaintiff/cross-defendant to pay the first defendant/cross-claimant’s costs.

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Amendments

28 April 2026

Coversheet - amended Order (4) to add "first", amended Parties to add "Cross-Claimant" Orders - amended Order (4) to add "first"