Built Pty Ltd v State of New South Wales
[2026] NSWSC 1147|Supreme Court of NSW|2026-09-24
Before: Rees J
EXPERT DETERMINATION — builder engaged to build high school — contract used New South Wales Government GC21 (Edition 2) General Conditions of Contract — expert determination clause — threshold of $500,000 before an “Issue” determined by the expert may be litigated — expert determines eight “Issues” — whether threshold applies to each Issue or the cumulative result of all Issues — Lahey Constructions Pty Ltd v Department of Education [2020] NSWSC 1158 and Lahey Constructions Pty Ltd v State of New South Wales [2021] NSWCA 69 considered at [40]-[49] — point not argued and, thus, not decided at first instance or on appeal — proper construction of expert determination clause — principles at [50]-[53] — threshold applies to each Issue — CPB Contractors Pty Ltd v Transport for NSW [2021] NSWSC 537 considered — Courts should follow earlier decisions unless plainly wrong, at [70]-[72] — decision not plainly wrong or otherwise distinguishable — relevant Issues “involve” a money claim — proceedings stayed in part. WAIVER — whether Department waived reliance on threshold by filing pleadings including claims inconsistent with interpretation argued for — principles at [78]-[79] — where Department sought confirmation from builder in advance that filing of pleadings would not be taken as waiver — builder agreed not to take this point — no waiver. COSTS — payable forthwith — r 42.7, Uniform Civil Procedure Rules 2005 (NSW) — principles at [82] — motion involved discrete issue at early stage of proceedings.
Prakash v Commonwealth Securities Limited trading as Commsec
[2026] NSWCA 202|Court of Appeal (NSW)|2026-09-22
Before: Leeming JA; Adamson JA
The Court of Appeal did not decide whether Commsec's margin call was lawful or whether Prakash's underlying allegations were true. It considered only whether he could appeal interlocutory decisions. Leave was required, and the Court said it would be granted only for a qualifying issue of principle, public importance, or reasonably clear injustice. The main appeal ground depended on a default judgment that the Court record showed had not been entered. The other grounds did not meet the threshold. The appeal notice was dismissed as incompetent, leave was refused, and costs were ordered against Prakash.
APPEALS — leave to appeal — interlocutory decisions — whether leave to appeal ought be granted — where applicant relies on a misapprehension as to order for default judgment — where no issue of principle, question of public importance or reasonably clear injustice shown
Clarke Energy (Australia) Pty Ltd v Alinta Energy Transmission (Roy Hill) Pty Ltd
[2026] NSWSC 1124|Supreme Court of NSW|2026-09-21
Before: Rees J
CONSTRUCTION — contractor engaged to engineer, procure and construct power station in remote WA for $78 million — small site nestled between two existing power stations operated by Alinta and BHP — principal says it will move existing underground services before the contractor starts, to avoid problems with neighbours — extensive delay until underground services are removed, ultimately with the assistance of the contractor — contractor serves extension of time (EOT) claim on principal but omits to copy superintendent — contractor required to undertake work on Alinta’s existing power station — principal obliged to, but fails to, perform electrical isolations for the contractor to undertake works — contractor asked to perform work near live cables — refuses — delay while isolations done — COVID-19 border restrictions and quarantine interrupt interstate fly-in fly-out (FIFO) workers getting to remote site — local labour hired but less productive, causing delay — complex commissioning and testing process for new power station — principal required to, but fails to, make electricity network available during this process, causing delay — when was practical completion achieved — is contractor entitled to EOTs and delay costs — yes. SUPERINTENDENTS — parties agree that superintendent’s determinations may be challenged in Court — how Court to approach its task at [12]-[18] — principal to ensure superintendent “acts honestly, fairly and reasonably and arrives at reasonable determinations” — role of superintendent at [19]-[21] — superintendent “overwhelmed” and makes no determination —replaced — second superintendent privately indicates to principal that inclined to issue certificate of practical completion — superintendent immediately replaced — private communications between superintendent and one contracting party undermines role of superintendent — removing a superintendent to stop them giving a determination that you do not want effectively destroys the role. EXTENSIONS OF TIME — time impacted analysis at [407]-[408] — programs — who ‘owns’ the float at [130]-[134] — whether change of logic in subsequent program may indicate baseline program should not be used — yes, at [832] — whether it matters that the work was ultimately done differently — no, at [834] — whether EOT should include loss of ‘activity float’ — no, at [524]-[526]. DELAY COSTS — “reasonable additional costs and expenses directly incurred … as a result of that delay” includes usual margin — contractor not obliged to provide goods and services without gain, absent clear words at [536]-[538] — contractor entitled to overheads and profit margin, at [544]-[547] — whether delay costs include lost days of ‘activity float’ — no, at [528]. VARIATIONS — was an email a variation order — consideration at [289]-[291]. CONTRACTS — proper construction, at [84]-[85] — resolving inconsistencies, at [399] — whether removal of underground services formed part of contractor’s scope of work — no — whether contractor’s acceptance of Site Conditions included the site as later excavated by the principal to remove underground services — no — whether principal obliged to backfill and compact the land disturbed by removal of such services to Site Conditions as at the date of the contract — yes. IMPLIED TERM — duty to cooperate — principles at [270] — principal had “sole discretion” to give a notice to proceed — issue of notice fixed Date for Practical Completion and commencement of contractual provisions for liquidated damages — principal obliged to give contractor access to site “to perform the Work” within 10 business days of the notice — duty to cooperate obliged principal to be satisfied that it would be in such a position when issuing the notice. ‘PREVENTION PRINCIPLE’ — implied obligation to cooperate — whether contract excluded prevention principle — case law review at [259], [867]-[871] — Growthbuilt Pty Ltd v Modern Touch Marble & Granite Pty Ltd [2021] NSWSC 290 considered — prevention principle not excluded. WAIVER — principles at [761] — impact of ‘no waiver’ clause at [762] — case law review at [763]-[766] — principal relies on contractor’s failure to provide EOT claim to superintendent in time as basis to reject claim entirely — process for determination of EOTs not followed — principal later content for third superintendent to determine claim substantively — principal chooses between inconsistent rights — principal waives reliance on failure to comply with conditions precedent. AUSTRALIAN CONSUMER LAW — whether representation made, principles at [63] — implications of entire agreement and no reliance clauses at [73] — representation as to future matter — whether misleading or deceptive, at [882]-[883] — had proper basis when made. ESTOPPEL — whether representation made, principles at [64] — principal represented that it would remove underground services prior to contractor arriving on site — whether principal should be estopped from denying entitlement to EOT — elements of estoppel at [294] — principal did not represent that it would not rely on contractual regime in respect of EOTs — estoppel not made out.