The case of Trusted Building Group Pty Ltd v Everitt is a summary judgment of the Supreme Court of NSW that dealt with a dispute relating to a construction contract.
Synopsis:
- The case involved Trusted Building Group Pty Ltd (the Builder) and Raymond and Christine Everitt (the Owners). The Builder and the Owners entered into a contract on 5 February 2022 for the construction of a duplex on the Owners’ property in Bombo, with a contract sum of a little more than $2 million.
- The project was expected to be completed by 27 March 2023. However, the relationship between the parties deteriorated, and on 8 March 2023, the Owners issued a Notice of Termination.
- Subsequently, the partly constructed property was sold.
Builder’s Claim:
- On 9 August 2023, the Builder initiated proceedings in the New South Wales Civil and Administrative Tribunal, seeking approximately $563,075.84 in damages for works and variations.
- Anticipating a Cross-Claim from the Owners that would exceed the Tribunal’s jurisdiction, the proceedings were transferred to the Supreme Court of New South Wales on 16 October 2023.
- The Builder served its List Statement on 19 February 2024, and the Owners responded with their List Response, a Cross-Claim Summons and List Statement on 18 March 2024.
The Cross-Claim by the Owners:
- The Owners sought damages for defective works performed by the Builder. The Owners aimed to establish their loss based on a document called the ‘Defendants’ Schedule of Damages’.
- The Court noted that the Owners were entitled to damages sufficient to place them in the position they would have been in had the Builder performed the work in accordance with the contract and the Owners paid the Builder for that work.
Evidence issues:
- The Court ordered both parties to serve their evidence by 31 May 2024.
- While the Owners complied and served some evidence on 13 May 2024, the Builder failed to serve its evidence by the deadline and in the end failed to serve any evidence.
Legal Representation Issues:
- The Builder faced multiple issues with legal representation. The Builder’s solicitors filed a Notice of Ceasing to Act on 24 June 2024.
- Despite an extension granted until 30 August 2024, the Builder did not appear at a directions hearing on 6 September 2024. The Builder’s representative, Mr. Waelle Darwiche, requested an extension of time for the hearing scheduled on 13 September 2024, citing overseas travel.
- On 13 September 2024, Mr. Darwiche appeared via AVL and was informed that the Builder needed legal representation to prosecute the proceedings. The Court granted the Owners leave to file an Application for Summary Judgment, returnable on 20 September 2024.
- Despite further communications and requests for extensions, the Builder failed to appear at the hearing on 20 September 2024.
- The Builder did not contest the Cross-Claim due to lack of legal representation and failure to serve evidence.
Court’s Decision:
- The Court ultimately struck out the Builder’s claim and entered judgment for the Owners on their Cross-Claim. By the date of Judgment, the Owners were not in a position to quantify their loss and the assessment of damages was referred to be determined later.
- The Court also ordered the Builder to pay the Owners’ costs of the proceedings.
Takeaways:
This case is a cautionary tale about the necessity of competent representation during legal proceedings, the necessity of complying with timetable orders, and the need to attend at directions hearings and applications, particularly if there is a possibility of Summary Judgment.
For more information about building and construction and commercial litigation and equity disputes, contact David Collins in the Mullane & Lindsay litigation team.
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