Parkview Property Services Pty Ltd (ABN 19 616 552 875) v Stamford Property Services Pty Ltd (ACN 076 823 866)

Category: Principal judgment

Parties: Parkview Property Services Pty Ltd (Plaintiff)
Stamford Property Services Pty Ltd (Defendant)

Representation: Counsel:
Mr W Marshall (Plaintiff)
Solicitors:
Salim Rutherford Lawyers (Plaintiff)

File Number(s): 2024/153515

Publication restriction: Nil

JUDGMENT

1. The plaintiff, Parkview Property Services Pty Ltd (‘Parkview’) filed a statement of claim on 24 April 2024 seeking damages against the defendant for breach of contract or, in the alternative, restitution or, in the further alternative, damages pursuant the Competition and Consumer Act 2010 (Cth), Schedule 2, Australian Consumer Law, s 236 (‘ACL’) together with interest and costs.

2. The defendant, Stamford Property Services Pty Ltd (‘Stamford’), by its solicitors, Norton Rose Fulbright, filed a defence on 5 August 2024.

3. The parties attended numerous directions hearings, and the exchange of evidence was timetabled. Parkview served its affidavit evidence on Stamford on 21 January 2025. Stamford did not serve any evidence on Parkview.

4. On 7 March 2025, the matter was listed for hearing on 29 July 2025.

5. On 23 April 2025, a ‘Notice of Removal of Solicitor’ was filed and served, giving notice that Stamford had terminated the services of Norton Rose Fulbright.

6. Nothing further was filed on behalf of Stamford and Stamford ceased to respond to efforts by Parkview’s solicitors to communicate.

7. At the hearing on 29 July 2025, Mr W Marshall appeared for Parkview. There was no appearance for Stamford.

8. Parkview asked that the trial proceed under r 29.7 of the Uniform Procedure Rules 2005 (NSW). It is clear that Stamford was aware of the timetable and the listing of the date for hearing, but had chosen not to file and evidence and to terminate its instructions to its solicitors. Accordingly, the request that the trial proceed was granted, and the trial proceeded.

9. Parkview relied upon and read the affidavit of Mr Anthony Touma, a director of Parkview, sworn on 21 January 2025 and tendered the exhibit to that affidavit, Exhibit TT1.

Facts

10. Mr Touma says, in his affidavit, that the Parkview group of companies have had a commercial relationship with Stamford since about 2007.

11. Mr Touma says that he dealt with Mr Chio Kiat Ow (Mr Ow) regularly in the course of the commercial relationship. Mr Ow is the Chairman of Stamford Land Corporation Limited. The ASIC ‘Current and Historical Organisational Extract’ which is Tab 27 to TT1 says that Stamford Land Corporation Limited is the ultimate holding company of Stamford.

12. Mr Touma also socialised with Mr Ow, and once attended a dinner with him and his family at a private house in Vaucluse (‘the property’).

13. Mr Touma received an email from Mr Ow in February 2017 asking whether he could assist with some works on the property, and give advice as to when certain development consent in relation to the property (‘the development consents’) would expire.

14. A telephone call between Mr Touma and Mr Ow followed the sending of the email. Mr Ow asked Mr Touma if there was anything Parkview could do to help him to keep the development consents from lapsing.

15. The development consents are 161/2012 and 162/2012, both of which were granted on 25 June 2012. The development consents are in Tab 2 of TT1.

16. Each of the development consents would expire on 25 June 2017 unless building, engineering or construction work relating to the work the subject of each of the development consents was physically commenced on the property prior to 25 June 2017 (see Environmental Planning and Assessment Act 1979 (NSW) as at 6 June 2012, s 95). I will refer to the works to prevent the development consents from lapsing as “the project”.

17. Mr Touma agreed to have a report prepared, with some preliminary costings.

18. Following his telephone call with Mr Ow, Mr Touma did the following:

19. Arranged for enquiries to be made about whether a principal certifying authority could certify that works had been substantially commenced in order to preserve the development consents,

20. Arranged for various consultants who had been involved in the preparation of the applications for development consent to be contacted to engage them to prepare a scope of works to carry out the work necessary to preserve the development consents and, also, to cost the works.

21. On 1 March 2017, sent an email to Mr Ow to tell him that Mr Homer Dapas, of Parkview, had met with the Director of Advance Building Approvals to seek advice about what would be viewed as substantial commencement of work on the property to maintain the operative status of the development consents. Mr Touma also reported that consultants were preparing costings, and advised that the development consents would lapse on 25 June 2017.

22. By about 17 March 2017, Mr Dapas and Mr Nigel Sharpe, also of Parkview, had prepared ‘Status Report – 17/03/017’, (‘the Status Report’) which included a ‘Higher Level Budget’ of the cost estimated for the carryout of the construction works the subject of the development consents.

23. On 22 March 2017, Mr Touma met Mr Ow, Mr Heng Ow (Mr Ow’s son), with Mr Sharpe and Mr Anthony Mansour from Parkview at the Stamford Hotel at Sydney Airport. The Status Report was presented to Mr Ow and Mr Heng Ow. Mr Touma advised Mr Ow and Mr Heng Ow that, in order to avoid the development consents lapsing, the following would need to be done:

24. A principal certifying authority would have to be satisfied that the conditions in the development consents which needed to be satisfied as a pre-condition to the issue of a construction certificate had been satisfied.

25. Construction work would have to commence and to be substantial enough to satisfy the principal certifying authority that the works the subject of the development consents had been commenced.

26. Mr Touma recalls telling Mr Ow, at the meeting, that the costing estimates were ‘high level’ because of the time constraints, and that, typically, more time would be spent developing a scope of works and taking the scope of works to the market for tender. Each item in the ‘Status Report’ was discussed, including the costs. Mr Touma emphasised that the limited time frame available to preserve the development consents was a concern.

27. The building arm of the Parkview group carries out the business of constructing apartment buildings and not individual residences. The applicable contractor licence is subject to a condition that it may not contract to undertake works which require insurance under the Home Building Compensation Fund (or the Home Owners Warranty Insurance, as it was called in the past). For that reason, Mr Touma told Mr Ow at the meeting that Parkview did not have the necessary insurance to build a single home, so Mr Ow would either have to have the work performed as an owner/builder or engage a contractor who has the insurance required to perform the building works, but that Parkview could act as the project manager.

28. Mr Touma says, in his affidavit, at paragraph 27:

27. I also recall that toward the end of the meeting, the Chairman [ie Mr Ow] asked me, in words to the effect of, “are you confident that if I commit to spending the money I would be able to preserve the Development Approvals” And in response, I informed him, in substance and effect, that we would be under immense pressure as we would not have the luxury of time on our hands, but that if we could agree to some simple terms, then I was confident that there would be a real chance of preserving the Development Approvals and, in that regard, I also raised with the Chairman that to realise that chance he would have to:

(a) give me an immediate ‘go ahead’ to proceed with taking the necessary steps to preserve the Development Approvals;

(b) approve the estimated costs in the high level budget; and

(c) agree that Parkview was to be wholly reimbursed for any expenses that it incurred in carrying out the works prior to, and following, the execution of any formal agreement between the parties – or if no formal agreement was reached any costs incurred by Parkview in its attempt to activate and preserve the Development Approvals.

24. Mr Touma says that Mr Ow agreed to items (a), (b) and (c) set out in [23] above by saying “Yes, that is all fine. Please proceed”.

25. Mr Touma says that the following exchange then took place:

Chairman: Although, I am happy for you to proceed, is it possible that the works be done for a cheaper price than the costs detailed in your high level budget of $725,000?

Me: Given the limited time, that we had to prepare the report, we are not able to procure exact quotes for the works. However, I am confident that the costs in the estimate will not be exceeded, and we will manage the works such that the only works performed will be those works needed in order to preserve the Development Approvals – so that you have time to decide what you wish to do about the rest of the approved works. Also, in that way, all you will need to do is reimburse Parkview for its incurred expenses, such as council bonds, consultant’s costs and our time. However, because of the commercial relationship which we have had over a number of years, we will not charge any profit or overheads.

Chairman: (at the same time as the Chairman took my arm with one hand, and shook my hand with the other) Ok, Thank you. Again, I am happy for you to proceed and any costs incurred by Parkview as you have described will be reimbursed by me, or Stamford, directly so moving forward, please keep me updated. Also, thank you, for your time and effort and all the work you’ve done so far. Lastly, and for the purpose of costs, please use the consultants I have already dealt with. I will provide you a list and please, can you also, suggest some builders I should consider should I decide to ultimately carry out the building works.

Me: Great, I will start immediately to move forward to seek to preserve the DAs and in the meantime, we can get a proper management agreement between us drawn up. As for the consultants and builder – not a problem can do. If there are any others needed, I will provide some suggestions – or if the existing ones cannot assist, I will also suggest a replacement.

Chairman: Great. Thanks.

26. On 1 April 2017, Mr Ow sent an email to Mr Touma enquiring as to whether there had been any progress in determining a way forward to preserve the development consents (Tab 6 TT1).

27. Mr Sharpe of Parkview had prepared a report, and this was sent to Mr Ow on 3 April 2017. The report said that Parkview had appointed a private principal certifying authority and agreed on scopes of work which would constitute physical commencement on the property sufficient to preserve the development consents. The report said that the design of the works were being undertaken, including engagement with subcontractors. The reports said that “architectural, structural and services engineers consultants” had been commissioned and a design was being prepared, to be completed by the end of the following week. A construction management plan was being prepared and a dilapidation survey had been undertaken. Meetings on the property had been held with a piling contractor and a “craneage contractor”. The report said, “We will continue to engage with the required subcontract trades”. The report said that it was anticipated that applications could be submitted and construction certificates obtained so that on-site work could commence in approximately mid-May, to achieve satisfactory physical commencement within about three weeks of starting.

28. Mr Ow emailed Mr Touma on 3 April 2017, after receiving the report and said:

Thanks, Tony.

Great job Nigel. I await further updates.

Rgds.

29. In his affidavit, Mr Touma says:

Between about mid-February 2017 and May 2017, Parkview engaged the following consultants to carry out works associated with satisfying the conditions precedent to obtaining a construction certificate:

(a) Advanced Building Approvals – consulting fees to assist Parkview in ascertaining the status of any development approvals that had been issued in respect of the Property, determining whether physical works had commenced satisfactory to prevent the lapsing of the Development Approvals, and to review a DA matrix;

(b) AE&D Consulting – as Principal Certifying Authority in respect of the application for the construction certificate;

(c) Aurecon – structural engineer for the provision of structural engineering design and dilapidation reports of the neighbouring properties to satisfy condition D1 of the Development Approvals;

(d) Bitzios Consulting – traffic consultant for the provision of management plans, including construction and traffic management plan and traffic control plans to form part of the project construction management, required as condition D2 of Development Approval DA 161/001 and D4 of Development Approval DA 162/001.

(e) Erbas – hydraulic, electrical and mechanical design services, required to obtain the construction certificate; and

(f) Kaan Finch [sic] [Kann Finch] – architectural design, required to obtain the construction certificate.

30. Mr Touma says that he engaged Aurecon and Kann Finch because they were involved in the preparation of the development applications when the development consents were obtained. The engagement of all the consultants was by email or verbal on account of the time constraints and in line with Mr Ow’s direction at the meeting on 22 March 2017.

31. Mr Touma says that, pursuant to Mr Ow’s instructions at the meeting, he arranged for Parkview to engage the consultants listed in [29], above, directly. In reliance on Mr Ow’s representation that he, or Stamford, would reimburse Parkview for the expenses it incurred in doing the work necessary to preserve the development consents, Mr Touma arranged for Parkview to pay the invoices from the consultants and, further, paid the following:

33. (b) …the necessary council fees and bonds in order for the works the subject of the Development Approvals to begin, including:

(i) construction management plan approval application;

(ii) application fee for work zone;

(iii) levies and fees in respect of DA 161/2012;

(iv) levies and fees in respect of DA 162/2012.

32. On 23 May 2017, Parkview entered into a Project Management Agreement with Stamford (Tab 9 TT1). Parkview was then called Parkview Communities Pty Ltd, but that name was changed to Parkview Property Services Pty Ltd on 4 May 2018.

33. In late May 2017 or early June 2017, Mr Touma suggested that General Beton Co Pty Ltd be engaged as the builder.

34. A construction contract was entered into between General Beton and Stamford on 5 June 2017 (Tab 10 TT1).

35. By email on 6 June 2017, Stamford expressly approved the payment of an itemised list of levies, fees and deposits totalling $131,125.32, to be paid to Woollahra Council (‘the Council’). These payments were for the issue of a construction certificate, and Parkview made the payment on Stamford’s behalf (CB Tab 12 p 278). Parkview actually paid $129,793 to the Council on the same day, for the purposes set out in the email (CB Tab 13)

36. Mr Touma had telephone conversations with Mr Ow from time to time to report on the progress of the works.

37. In the course of the works being undertaken, amendments to the scope of works were undertaken which reduced the extent of the works and therefore the cost of the works. Mr Touma reported this to Mr Ow. In that conversation, Mr Touma and Mr Ow discussed the fact that, once substantial commencement had been achieved on the site, Mr Ow could stop the works and consider whether to proceed with any further work for the time being. Mr Touma’s impression from this conversation was that Mr Ow wanted that opportunity to consider whether further works should proceed.

38. AE & D, the principal certifying authority, inspected the works on 16 and 20 June 2017. AE & D provided records of the inspection to Parkview, which confirmed that the development consents had been preserved by the works performed on the property.

39. Mr Touma had a telephone conversation with Mr Ow and told him that the preservation of the operative development consents had been achieved. Mr Touma, in his affidavit, says that Mr Ow said that he was:

… delighted with the outcome and I am very appreciative of the efforts of you and your team. I will be in Sydney shortly I will have my office schedule a time to meet so you can present a status update, final accounts and discuss any next steps with moving forward.

40. The meeting was not arranged. Mr Touma does not know why.

41. Parkview arranged for General Beton to cease work by early July 2017. Mr Touma was still waiting to receive direction from Mr Ow as to the future of the project.

42. In early September 2017, Parkview issued a variation direction to General Beton, formally reducing their contract scope of work to that which had been carried out to date. This was done in an effort to finalise General Beton’s contract and limit any potential liability under General Beton’s contract, because no instruction had been forthcoming from Stamford as to the future of the building works on the property.

43. Mr Touma’s contact with Mr Ow became much less frequent. Mr Touma attended a social function at the property in September 2017, but it was purely a social occasion and no business was discussed.

44. On 16 October 2017, Mr Touma saw an article in “Domain” which reported that Mr Ow intended to sell the property.

45. Mr Touma did not hear from Mr Ow from September 2017 until 25 December 2017 when he received a telephone call from Mr Ow, who said (Mr Touma’s affidavit, paragraph 60):

Tony, I have sold my home at Vaucluse and I would like to have a fireplace and stained glass window removed from the Property prior to completion of the sale so that I can take it with me.

46. Mr Touma agreed to contact Mr Ow’s solicitors to ascertain the relevant provisions of the sale contract.

47. An email exchange between Mr Touma, AE & D Consulting, the purchaser of the property and Stamford occurred.

48. Interactions between the solicitors and Parkview occurred, and Mr Mansour attended the property to see how removal of the fireplace and stained glass window could be achieved and what make good works would be required. Mr Mansour’s email setting out the outcome of his inspection was sent to Stamford on 24 April 2018.

49. On 24 April 2018, Ms Brigitte Delane of Stamford sent an email to Parkview saying that Mr Ow had decided against removing the fireplace and that there was “no need to trouble you further on this”.

50. Mr Touma was aware that settlement of the sale of the property was scheduled for May 2018. He formed the view that it was now clear that Mr Ow would not require any further works to be undertaken by Parkview under the Project Management Agreement.

51. Mr Touma asked Mr Sharpe to seek the return to Parkview of the deposits and levies paid to the Woollahra Council on behalf of Stamford. Mr Sharpe reported to Mr Touma that the Council officer with whom he met had informed him that there were some obstacles with the return of the deposits and levies, which were considered to be attached to the property and not to the payer (Tab 24 TT1).

52. Parkview sought AE & D Consulting’s advice on the issue of the refund of the deposits and levies.

53. Mr Touma wished to obtain refunds, if possible, to reduce the amount that he would be claiming from Stamford with respect to the project.

54. A draft invoice from Parkview to Stamford in respect of the work relating to the property was prepared in 2017 but not sent, due to an administrative oversight.

55. Parkview continued to liaise with the Woollahra Council concerning the deposits and levies throughout 2022.

56. In April 2023, Mr Touma realised that the invoice had not been sent to Stamford. He sent an email to Mr Ow on 27 April 2023, reminding him of the project and attaching the invoice, which included consultants’ fees, Parkview’s costs, Woollahra Council fees and levies and building works, totalling $304,619.07. A breakdown of the amount charged was provided with the invoice. In the email, Mr Touma said “As we agreed, in good faith we have not added overheads or margin as we would normally do”.

57. No payment was made in response to the invoice.

Parkview’s claim

58. In the statement of claim, it was alleged that, in February 2017, Stamford and Parkview agreed that Parkview would undertake preliminary works in relation to the preservation of the development consents for the property until such time as a written agreement could be arranged (‘the preliminary agreement’).

59. The parties agreed, in the preliminary agreement, that Stamford would reimburse Parkview for all third party costs incurred by it in connection with the preliminary works.

60. Parkview agreed to charge only an hourly rate, and not to apply any overhead or margin to that rate.

61. Those sums were to be claimable under the Project Management Agreement to be entered into or, if no agreement was entered into, would be claimable upon the issuance of an occupation certificate or the termination of the preliminary agreement.

62. The costs incurred by Parkview were itemised in Schedule 1 to the statement of claim.

63. On or about 23 May 2017, Stamford and Parkview entered into a written agreement, called a Project Management Agreement, pursuant to which Parkview would manage and co-ordinate the design and works on the property to establish substantial commencement of the works prior to the date upon which the development consents would lapse in exchange for payment from Stamford.

64. Under the Project Management Agreement, clauses 5, 6 and 7:

6. The Principal [ie Stamford] undertakes, and is solely responsible to make payments as required by this contract and any ancillary document wherein the Principal is identified as the party obliged to pay for work, material or services provided.

This obligation extends to any contract or work where the Project Manager [Parkview] enters a contract with independent third parties relating to the third party carrying out duties under this contract. This undertaking and responsibility specifically covers all contracts, agreements and undertaking refer to in clause 9(b)

7. The Principal specifically acknowledges that the Project Manager will not be liable for:

(a) any costs of the project other than those referred to in clause 11(b) and clause 23;

(b) the design of the works; or

(c) construction of the works.

65. Clause 9 of the Project Management Agreement says:

9. AGENCY – Project Manager becomes the disclosed agent of the Principal

(a) The Principal appoints the Project Manager the agent of the Principal for the purpose of providing the project management services referred to in parts C, D and E of this agreement.

(b) The Project Manager is authorised by the Principal and is required by the Principal to enter into Consultancy Agreements, Agreements with Professional Service Providers and contracts as the disclosed agent of the Principal.

(c) The Principal further and specifically appoints the Project Manager his agent for the following purposes:

(i) to permit any persons to enter the site;

(ii) to refuse any persons the right to enter and to exclude any persons from the site; and

(iii) to remove any unauthorised person from the site.

66. Clause 10 of the Project Management Agreement says (in part):

10. C****ONSULTANCIES

(a) The Project Manager is to engage Consultants and Professional Service Providers as necessary to enable each project to obtain development and building approval and to be built. The Project Manager must obtain from each Consultant or Professional Service Provider details of their professional indemnity insurance.

67. Clause 12 of the Project Management Agreement says:

12. Design and Relevant Approvals

Completion of Details Ready for Application to the Approval Authority

(a) The Project Manager is to arrange and co-ordinate the completion of an the submission of the Principal’s design of the works, to enable application to be made for developmental approval and construction approval.

Project Manager to make Approval Application on Behalf of Principal

(b) The Project Manager will make application for development approval and construction approval on behalf of the Principal. The Principal will be liable for all costs arising from or resulting from such application for development approval and or construction approval, including, if necessary under the relevant law, insurances commonly called home warranty or consumer building protection insurance.

(c) The Project Manager must use his best endeavours to:

(i) ascertain the rules and regulations of Authorities; and

(ii) obtain all relevant approvals from Authorities necessary to enable the project to proceed and or be built.

68. It is pleaded, in the statement of claim, that Parkview engaged Advance Building Approvals, AE & D Consulting Pty Ltd, Aurecon, Bitzios Consulting, Erbas and Kann Finch under paragraphs 11 and 12 of the Project Management Agreement.

69. Clause 21 of the Project Management Agreement provided for Stamford to pay Parkview’s statements of costs within five days.

70. The hourly rates for Parkview’s fees were set out in Schedule 12 and were $200 per hour for a project manager, $200 per hour for a business manager and procurement manager and $90 per hour for a property analyst.

71. It is alleged, in the statement of claim, that from 23 May 2017 and early October 2017, Parkview incurred costs on behalf of Stamford in project managing the works and paying consultants engaged under its agreements with Stamford.

72. It is further alleged, in the statement of claim, that the costs incurred are payable to Parkview by Stamford under the preliminary agreement and the Project Management Agreement.

73. It is alleged that, on 9 June 2017, Stamford unilaterally amended the Project Management Agreement to delete the Termination fee of $20,000 provided for under that agreement.

74. It is alleged that the property was sold on 15 December 2017.

75. The email exchange of 24 April 2018 is referred to and it is alleged that the email from Stamford to Parkview on 24 April 2018 constituted notice of the termination of the Project Management Agreement so that the agreement terminated 20 days after that notice, being 14 May 2018 (see clause 27).

76. Clause 28 of the Project Management Agreement provides:

28 Payment on Termination

Upon termination pursuant to clause 27, the Principal must pay to the Project Manager:

(a)

(i) any costs of the Project not yet claimed by the Project Manager (or, if claimed, not yet paid) incurred pursuant to clause 16(f);

(ii) any fees claimed by the Project Manager but not yet paid by the Principal; and

(b) In addition to any amount payable under (a) above the Principal is to pay to the Project Manager, one only of the following:

…

(iii) Where the Project Manager is being paid a fee based on an hourly rate pursuant to clause 24(a)(iii), fees calculated in accordance with the hourly rates specified in “Schedule 14” up to the date of termination LESS any amount previously paid.

77. Parkview, in the statement of claim, asserts an entitlement to damages being its accrued entitlements under the Project Management Agreement, the consultants’ costs, the project management costs and the costs associated with the Council.

78. The statement of claim, in the alternative, asserts an entitlement to restitution and also makes a claim of misleading and deceptive conduct under s 18 of the ACL.

Stamford’s defence

79. Stamford admits that Parkview agreed to carry out works at the property before 25 June 2017, in response to paragraph 7 of the statement of claim. This is an admission that there was an agreement between the parties from mid-February 2017 (see clause 7.c.ii of the defence, which refers to “the agreement”). Stamford further admits that it entered into an agreement with Parkview on 23 May 2017 for Parkview “to carry out certain work on the Property” (see cl 10.a).

80. Stamford pleads that the Project Management Agreement is not enforceable because it is contrary to s 4 of the Home Building Act 1989 (NSW).

81. Stamford admits entering into a contract with General Beton Co Pty Ltd on 5 June 2017.

82. Stamford denies or does not admit many of the factual allegations on which the plaintiff’s claim is based.

83. Stamford pleads that the 24 April 2018 email did not comply with the requirement of clause 3 of the Project Management Agreement that notices were to be delivered by hand or sent by facsimile, and further pleads that the fact that the email of 24 April 2018 was not served in accordance with clause 3 means that “the purported notice of termination was invalid and of no effect”.

84. Stamford pleads that a claim for restitution is out of time under s 14(1)(a) of the Limitation Act 1969 (NSW).

85. Stamford denies the claim for misleading and deceptive conduct under section 18 of the ACL and pleads that the claim is out of time under s 236(2) of the ACL because it has been brought more than six years after the day on which the cause of action is alleged to have accrued.

86. In its defence, Stamford pleads “conventional estoppel” on the basis that

…the parties conducted themselves on the basis that an agreement had been reached for the Plaintiff to carry out works/services in relation to the Property free of charge.

87. Stamford pleads that there was an oral agreement that Parkview would perform the work for no charge and further pleads that no claim for payment was made by Parkview until 21 April 2023. Stamford pleads that both parties accepted a common assumption that Parkview would perform the work for no charge, and that the assumption was intended to govern the legal position between the parties. Further, that the defendant acted in reliance on the assumption, the plaintiff knew that it would so act, the defendant would suffer detriment if the plaintiff was allowed to resile or depart from the common assumption and it would be unconscionable to allow the plaintiff to resile or depart from the common assumption.

88. Stamford also pleaded promissory estoppel. Stamford pleads that, by not submitting an invoice until 21 April 2023, Parkview represented that it would not be seeking payment. In reliance on that representation the defendant conducted itself on the basis that payment would not be sought. It would be unconscionable to allow the plaintiff to resile from the representation.

Consideration

Was it a term of the agreement that Parkview was to work for no charge?

89. Stamford admits that there was an agreement for Parkview to commence work on the preservation of the development consents from February 2017. It pleads, however, that it was a term of the agreement that Parkview would perform the work for no charge (see paragraph 7 of the Defence).

90. There is no evidence to support Stamford’s assertion that it was a term of the agreement that Parkview would perform the work for no charge. There is no evidence that there was “a common assumption” that Parkview would perform the work for no charge. The defendant has not made out a defence of conventional estoppel.

91. The evidence of Mr Touma is the only evidence before the court. Stamford has chosen not to support its case with evidence. Mr Touma’s affidavit and the exhibit to that affidavit were served upon Stamford well prior to the hearing, so Stamford had notice of the evidence in the case against it.

92. The evidence of Mr Touma, in his affidavit, is inherently consistent and plausible. It is substantiated in many ways by documentary evidence provided in exhibit TT1 to Mr Touma’s affidavit. It is uncontradicted. I accept Mr Touma’s evidence.

93. I find that an oral contract came into existence in February 2017 pursuant to which Parkview agreed to carry out works to investigate whether works could be arranged and performed to prevent the development consents lapsing on 25 June 2017.

94. I find that events unfolded in the manner set out above at [13] to [57].

95. In Realestate.com.au Pty Ltd v Hardingham and Others; RP Data Pty Ltd v Hardingham and Others [2022] HCA 39 Gordon J said, at [43]-[44]:

Principles

43 The rights and liabilities of parties under a contract – whether oral, in writing, or partly oral and partly in writing – are determined objectively. The concern is “not with the real intentions of the parties, but with the outward manifestations of those intentions”. As this Court said in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd:

It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean.

And where the contract is commercial, it is necessary to ask what reasonable persons engaged in the respective businesses of the parties would have understood the words and conduct to mean.

44 As this Court held in Toll, a person who signs a contractual document conveys a representation to a reasonable reader of that document that the person has read and approved its terms or is willing to take the chance of being bound by its contents. If the document on its face appears to be a complete contract, it will contain the whole of the contractual terms. Extrinsic evidence cannot be adduced to subtract from, add to, vary or contradict those terms, except in limited circumstances. And a term will be implied only if, among other things, it is necessary to make the contract work.

96. In the circumstances of this matter, having regard to the established commercial relationship between the two parties, reasonable persons engaged in the business of property project management on the one hand and property development on the other hand would understand the email exchange and telephone conversation between Mr Touma and Mr Ow in February 2017 to have given rise to an oral contract pursuant to which Stamford engaged Parkview on the usual terms that underlay their ongoing commercial relationship. Those reasonable persons would not expect Parkview to work for Stamford without being paid, and neither would they expect Parkview to incur costs in pursuance of the project without a right to be compensated by Stamford.

97. I reject the allegation that Parkview agreed to perform work on the project free of charge.

98. I note that, early in the course of Parkview’s work for Stamford in relation to the development consents, cost estimates were obtained and presented to Mr Ow. The costs were discussed with Mr Ow and Mr Heng Ow at the meeting on 22 March 2017. This is consistent with the expectation, on both sides, that the project would involve the incurring of costs and that Stamford would meet those costs, as they would be incurred for Stamford’s benefit.

99. I find that, at the meeting of 22 March 2017, Mr Ow and Mr Touma discussed remuneration and the agreement that Parkview was to be reimbursed for its expenses and costs in relation to the project was made explicit.

Termination email

100. As to the email of 24 April 2018, I reject the pleading, in the defence, that the fact that the email was sent by email and not delivered by hand or sent by facsimilie under clause 3 of the Project Management Agreement means that it was “invalid and of no effect”. Stamford sent the email of 24 April 2018 with the intention of communicating its contents to Parkview. It cannot now seek to resile from the content of the email on a technical point about notice in circumstances where it was clear at all times that the email of 24 April 2018 had been sent and received and acted on by Parkview. The email of 24 April 2018 terminated the Project Management Agreement (see [109], below).

The Home Building Act 1989 (NSW)

101. The Project Management Agreement was entered into on 23 May 2017 and addressed the payment of Parkview by Stamford as I have set out above.

102. Stamford pleads, in its defence, that the plaintiff is not entitled to claim damages or any other remedy under the Project Management Agreement because:

Contrary to section 4 of the Home Building Act 1989 (NSW) (the HBA), the plaintiff did not hold a contractor licence authorising it to contract to do residential building work.

103. The Home Bu**ilding Act 1989 (NSW) (‘HBA’), in s 6, requires a person who contracts to do, “in person or by others”, residential building work, to have a contract which complies with s 7 of the HBA. The HBA also requires a person who has contracted to do residential building work to have a contract of insurance that complies with the HBA. If no such contract exists, the person who has contracted to do the residential building work may not demand payment under the contract to do the residential building work (see s 92(2)) and may not recover damages under that contract, but may recover in an action for quantum meruit (see s 94(1) and (1A)).

104. The HBA, in schedule 1 clause 2, defines “residential building work” and relevantly provides:

2 Definition of “residential building work”

(1) In this Act, residential building work means any work involved in, or involved in co-ordinating or supervising any work involved in—

(a) the construction of a dwelling, or

(b) the making of alterations or additions to a dwelling, or

(c) the repairing, renovation, decoration or protective treatment of a dwelling.

(2) Each of the following is included in the definition of residential building work—

(a) roof plumbing work done in connection with a dwelling,

(b) specialist work done in connection with a dwelling,

(c) work concerned in installing in a dwelling any fixture or fixed apparatus that is designed for the heating or cooling of water, food or the atmosphere or for air ventilation or the filtration of water in a swimming pool or spa (or in adding to, altering or repairing any such installation).

(3) Each of the following is excluded from the definition of residential building work—

…

(i) the supervision only of residential building work—

(i) by a person registered as an architect under the Architects Act 2003, or

(ii) by a person supervising owner-builder work for no reward or other consideration, or

(iii) by any other person, if all the residential building work is being done or supervised by the holder of a contractor licence authorising its holder to contract to do that work,

…

105. There is no evidence that it was ever contemplated under either the oral agreement or the Project Management Agreement that Parkview would undertake any construction work as part of the project. Mr Touma’s evidence was that he explained that a builder with insurance in compliance with the HBA would be required, and General Beton Co Pty Ltd, a building company which held that insurance, entered into a contract directly with Stamford on 5 June 2017 and performed the required construction work.

106. In these circumstances, the work contracted for under the Project Management Agreement falls within schedule 1 clause 2(3)(i)(iii) of the HBA and is excluded from the definition of “residential building work”. Sections 7, 92(2) and 94(1) of the HBA do not apply to the Project Management Agreement and there is no statutory impediment under the HBA to the seeking of payment under the Project Management Agreement or the claiming of damages under the Project Management Agreement.

Is the invoice rendered by Parkview on 27 April 2023 payable by Stamford

107. Parkview rendered an invoice to Stamford on 27 April 2023 in the sum of $304,619.07, including GST. The invoice covered all of the costs Parkview sought to recover with respect to the project from February 2017. Embedded in the invoice was a hyperlink to “details of [Parkview’s] time/consultants’/contractors’/council’s invoices and receipts”. The breakdown of the costs was provided with the invoice. As I have said, in the email accompanying the invoice, Mr Touma said that “As we agreed, in good faith we have not added overheads or margin as we would normally do.”

108. The amount of the invoice of 27 April 2023 is substantiated by the documents provided in Exhibit TT1 to Mr Touma’s affidavit.

109. I find that Stamford gave Parkview notice of an intention to terminate the Project Management Agreement by email on 24 April 2018 with the statement, on behalf of Stamford, that there was “no need to trouble you further on this”, in circumstances where “this” was the latest piece of work that Stamford had asked Parkview to perform in relation to the property, and Mr Touma knew that the contract for the sale of the property by Stamford was due to settle in May 2018. Until 24 April 2018, there was some prospect that further work might be required of Parkview by Stamford in relation to the property, bearing in mind that the Council was still withholding bonds in relation to works undertaken on the property in the project. By sending the email on 24 April 2018, Stamford made it clear to Parkview that legal ownership of the property would change without further works being undertaken and without the return of the bonds paid to the Council by Parkview on Stamford’s behalf.

110. I have set out clause 28(a) and (b) of the Project Management Agreement above at [76]. It provides that, upon termination of the Project Management Agreement, Stamford becomes liable to pay Parkview:

(a)

(i) any costs of the Project not yet claimed by the Project Manager (or, if claimed, not yet paid) incurred pursuant to clause 16(f);

(ii) any fees claimed by the Project Manager but not yet paid by the Principal; …

(b) In addition to any amount payable under (a) above the Principal is to pay to the Project Manager, one only of the following:

…

(iii) Where the Project Manager is being paid a fee based on an hourly rate pursuant to clause 24(a)(iii), fees calculated in accordance with the hourly rates specified in “Schedule 14” up to the date of termination LESS any amount previously paid.

111. Clause 27 of the Project Management Agreement deals with termination and provides that termination by either party occurs twenty days after the service of notice in writing of an intention to terminate. The Project Management Agreement was terminated on 14 May 2018.

112. The items charged in the invoice of 27 April 2023 are all “costs of the Project” or the fee payable pursuant to clause 24(a)(iii) of the Project Management Agreement.

113. In its defence, Stamford pleaded that, by not submitting an invoice until 21 April 2023, Parkview represented that it would not be seeking payment and that, in reliance on that representation, the defendant conducted itself on the basis that payment would not be sought. Stamford pleaded promissory estoppel. There is no evidence which supports the pleading that the delay in providing the invoice constituted a representation that no invoice would be rendered. Further, there is no evidence that Stamford relied on the alleged representation to its detriment. Promissory estoppel has not been established as a defence.

114. I determine that Stamford is liable to pay Parkview’s invoice of 27 April 2023 and Parkview is entitled to payment of that invoice by Stamford under clause 28 of the Project Management Agreement.

115. No time frame for the payment of the invoice of 27 April 2023 was provided for on the invoice. Clause 28(d) of the Project Management Agreement says:

(d) Monies due to the Project Manager pursuant to this clause are payable to the Project Manager within twenty (20) days from termination.

116. Although it is contemplated, in clause 28(a) of the Project Management Agreement, that Stamford will be liable, on termination, for costs and fees which have not yet been the subject of a claim, the situation of a claim being made after the expiration of twenty days from termination is not specifically contemplated. I accept the submission that a reasonable period would be the standard commercial payment term of thirty days from the date of the entitlement arising, so I will take it that the due date for the payment of the invoice of 27 April 2023 was 27 May 2023.

Interest

117. The Project Management Agreement provides, in clause 32:

32 Interest

Should the Principal fail to pay any amount owing to the Project Manager within the time specified in this agreement then the Project Manager is entitled to interest at the rate specified in “Schedule 20” (but if nothing is specified then at the rate of 2% per month) calculated from the time the amount owning should properly have been paid until payment occurs.

118. Schedule 20 says “as per clause 32”, which I take to mean that the rate of interest was agreed at 2% per month.

119. Applying the analysis in Paciocco v Australia and New Zealand Banking Group Lt**d [2016] HCA 28, I find that, in the circumstances of this matter, the application of an “interest rate” of 2% per month on the late payment would amount to a penalty, rather than interest. The plaintiff calculated that, as at the date of the hearing, the application of the interest rate in clause 32 to the amount of the invoice would amount to “interest” in the sum of $158,401.91. This is disproportionate to the amount of the claim. I decline to award interest at 2% per month.

120. I will award interest under s 100 of the Civil Procedure Act 2005 (NSW), in the sum of $63,629.51calculated as follows:

| Start Date | End Date | Days | Rate | Amount Per Day | Total | | 28/May/2023 | 30/Jun/2023 | 34 | 7.1% | $59.2547 | $2,014.66 | | 01/Jul/2023 | 31/Dec/2023 | 184 | 8.1% | $67.6004 | $12,438.47 | | 01/Jan/2024 | 30/Jun/2024 | 182 | 8.35% | $69.4964 | $12,648.35 | | 01/Jul/2024 | 31/Dec/2024 | 184 | 8.35% | $69.4964 | $12,787.34 | | 01/Jan/2025 | 30/Jun/2025 | 181 | 8.35% | $69.6868 | $12,613.32 | | 01/Jul/2025 | 17/Dec/2025 | 170 | 7.85% | $65.5140 | $11,137.37 | | Total | | 935 | | | $63,639.51 |

121. The plaintiff has succeeded on its claim under the Project Management Agreement, so it is not necessary to consider the claim for restitution or the claim for misleading and deceptive conduct.

Orders

122. The following orders will issue:

123. Judgment and verdict for the plaintiff.

124. The defendant is to pay to the plaintiff the sum of $304,619.07 for loss and damages.

125. The defendant is to pay to the plaintiff pre-judgment interest calculated from 28 May 2023 to 17 December 2025 in the sum of $63,639.51.

126. The defendant is to pay the plaintiff’s costs of these proceedings on the ordinary basis.

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