Addinos Pty Ltd v OJ Pippin Homes Pty Ltd [2022] QDC 205

DISTRICT COURT OF QUEENSLAND CITATION: Addinos Pty Ltd v OJ Pippin Homes Pty Ltd [2022] QDC 205 PARTIES: ADDINOS PTY LTD (ACN 166 300 349) IN ITS CAPACITY AS TRUSTEE OF THE ADDINOS DISCRETIONARY TRUST (ABN 159 849 584) (Plaintiff) v OJ PIPPIN HOMES PTY LTD ACN 150 026 921 (Defendant) FILE NO/S: 2762/2018 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 1 September 2022 DELIVERED AT: Brisbane HEARING DATE: 19, 20, 21 July 2021 JUDGE: Rinaudo AM DCJ ORDER: 1. Judgment be entered for the plaintiff; 2. As a result of the defendant’s repudiation of the contract, the defendant pay the plaintiff, by way of loss and damage, the sum of $159,169.69, plus interest and costs; 3. The defendant pay the plaintiff’s costs of and incidental to the proceeding (including reserved costs, if any) to be assessed on the indemnity basis. 4. The defendant pay interest to the plaintiff in the sum of $35,459.96. CATCHWORDS: CONTRACTS – BUILDING AND ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – where the plaintiff engaged the defendant to perform demolition, excavation and construction works – where the contract required the defendant to ensure the works achieved practical -- 1 of 29 -- 2 completion by the practical completion date – where the defendant repudiated the contract CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION – whether the plaintiff’s loss and damage fairly and reasonably considered naturally arises from the defendant’s repudiation – whether the causal connection between the defendant’s repudiation of the contract and the plaintiff’s loss and damage was severed by novus actus interveniens – whether the plaintiff’s loss and damage flows from the defendant’s breach LEGISLATION: Uniform Civil Procedure Rules 1999 (Qld), r. 150(4) CASES: Alexander v Cambridge Credit Corporation Limited (1987) 9 NSWLR 310 Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd (1996) 12 BCL 317 Bellgrove v Eldridge (1954) 90 CLR 613 Cooper v Kinsella [2011] NSWCA 45 Knott Investments Pty Ltd & Ors v Fulcher & Ors [2013] QCA 67 Opat Decorating Service (Aust) Pty Ltd v Hansen Yuncken (SA) Pty Ltd (1994) 11 BCL 306 Reg Glass Pty Ltd v Rivers Locking Systems Pty Ltd (1968) 120 CLR 156 Shaw & Anor v MFP Foundations and Pilings Ltd [2010] EWHC 1839 Shevill v The Builders Licensing Board (1982) 149 CLR 620 The Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 Yara Australia Pty Ltd v Oswal [No 2] [2013] WASCA 265 COUNSEL: B.A. Reading for the plaintiff A.M. Laylee for the defendant SOLICITORS: Mullins for the plaintiff Results Legal for the defendant -- 2 of 29 -- 2 Overview [1] The plaintiff, a property developer, engaged the defendant, a construction company, to perform work on a property owned by the plaintiff at Lot 7, 17 Pickwick Street, Cannon Hill (the “Site”). The defendant commenced work on the Site on 22 October 2015. [2] Pursuant to the contract, the defendant was engaged to perform the following works (collectively referred to as the “Works”): (a) The demolition of an existing dwelling on the Site (the “Demolition Works”); (b) The excavation, levelling and cutting of the Site (the “Excavation Works”); and (c) The construction of six three storey townhouses on the Site (the “Construction Works”). [3] The Date for Practical Completion under the contract is in dispute. On the plaintiff’s case, the date is “34 weeks from the start”, plus 10 days to account for inclement weather. The plaintiff contends that, as the Demolition Works commenced on 22 October 2015, the Date for Practical Completion is calculated to be 26 June 2016.1 Conversely, the defendant placed reliance on Clause 8 of the contract which, it alleges, provides that the date of commencement of carrying out the Works is within 14 days after receiving all necessary consents, approvals and permits to carry out the Works. [4] The plaintiff alleges that, by letter dated 17 March 2016, the defendant repudiated the contract because it wrote to the plaintiff that it would be terminating the contract as “construction costs…increased significantly since the project was priced”.2 [5] On 23 June 2016, the plaintiff accepted the defendant’s repudiation of the contract.3 The Demolition Works were complete as at the date of repudiation, but the Excavation Works and the Construction Works were not.4 The plaintiff engaged 1 Clause 23(a); Annexure C. 2 Plaintiff’s Submissions at [45]-[46]. 3 Ibid at [4]. 4 Ibid at [5]. -- 3 of 29 -- 3 another builder, CJN Constructions, to complete the Works that the defendant was originally engaged to perform.5 [6] As a result of the repudiation, the plaintiff alleges that it suffered loss and damage which falls into three categories:6 (a) Increased construction costs to complete the Works; (b) Additional interest and charges that the plaintiff incurred on two loans; (c) Miscellaneous-type loss and damage, being costs associated with ownership of the land for the extended duration of time and with extending building permits. [7] By defence, the defendant pleads the following:7 (a) First, the defendant denies that it entered into a contract with the plaintiff;8 (b) Second, Clause 22 of the contract entitled the defendant to an extension to the Date for Practical Completion, despite the fact that the defendant failed to comply with the mandatory notice provisions to claim such an extension;9 (c) Third, the plaintiff repudiated the contract, not the defendant, because of its alleged failure to obtain, in a timely way, three approvals required for performance of some of the Works (the Demolition Approval, the Plumbing Approval and the Building Approval);10 (d) Fourth, the plaintiff’s letter dated 23 June 2016 was not an effective termination of the contract;11 (e) Fifth, the works performed by CJN Constructions included works that were additional to, or different from, the works that the defendant was engaged to perform;12 and 5 Ibid at [6]. 6 TS1-6.12 to .19. 7 See Plaintiff’s Submissions at [8]. 8 Despite the fact that the plaintiff’s and defendant’s names appear on the contract: see Plaintiff’s Submissions at [8] and Exhibit 1. 9 Defence at paragraphs 10(d) and 52(b). 10 Ibid at paragraph 39. 11 Ibid at paragraph 41(c). 12 Ibid at paragraph 44(b). -- 4 of 29 -- 4 (f) Sixth, Clause 26 of the contract prevents claims for unliquidated damages in respect of delay in completing the Works. The plaintiff’s claims are for unliquidated damages in respect of such delay and therefore are claims barred under the contract. The General Conditions to the Contract [8] Despite the fixed lump sum for the performance of the Works being listed on the first page of the contract, the parties agreed, after the execution of the contract, to a varied figure of $1,452,100.00.13 [9] Clause 23 provides for the Date for Practical Completion. Subsection (a) relevantly states that “[t]he Contractor shall ensure that the Works reach Practical Completion by the Date for Practical Completion”. Clause 31 defines “Date for Practical Completion” as “the time stated in the Schedule as extended from time to time in accordance with the Contract, or any such other date as may be determined in any arbitration or litigation”. The Schedule, which appears at page 3 of the contract, provides that the Date for Practical Completion is “34 weeks from start”. Annexure C to the contract provides for an allowance of 10 days for the effect of inclement weather. [10] The plaintiff contends that as the Works commenced on 22 October 2015, this is the date from which the Date for Practical Completion is to be calculated: that is, 35 weeks and 3 days from 22 October 2015 is 26 June 2016.14 [11] Clause 8(b) of the contract provides that: The Contractor shall commence carrying out the Works on the Date for Commencement or within 14 Days after receiving all necessary consents, approvals and permits to carry out the Works, whichever is the later . [12] The defendant contends that as at 17 March 2016, the defendant had not been provided with “all necessary consents, approvals and permits to carry out the Works”.15 It is on this basis that the defendant submits that the date for the calculation of the commencement date of the defendant’s contract should be extended to at least 3 March 2016, and therefore, the Date for Practical Completion should be 20 13 Plaintiff’s Submissions at [10]. 14 Ibid at [14]. 15 Amended Submissions for the Defendant at [120]. -- 5 of 29 -- 5 November 2016. The defendant summarised the key dates at paragraph [139] of its Amended Submissions as follows: Defined Timeframe Comment Source Date Commencement Date 14 days after all consents, permits and approvals to carry out works – 3 March, 2016 Clause 8(b) Defendant’s Contract 17 March 2016 Build Time 34 weeks Clause 23(a) Defendant’s Contract 10 November 2016 Inclement weather allowance 10 days Annexure C Defendant’s Contract 20 November 2016 [13] It should be noted, however, that Clause 8(b) was not relied upon by the defendant in its Defence. Ms Laylee, who appeared on behalf of the defendant, cross-examined at least Mr Thomson on its meaning.16 [14] Clause 22 makes provision for delays and extension of time claims. Relevantly, it provides that: (a) The Contractor is entitled an extension of the Date for Practical Completion if the progress of the Works is delayed as a result of any of the following causes: … (xii) an act of prevention by the Owner not otherwise covered by this clause; or (xiii) any other matter, cause or thing beyond the control of the Contractor. (b) If, at any time prior to the Works reaching Practical Completion, the Contractor believes that the progress of the Works was delayed as a result of a cause set out in clause 22(a), the Contractor shall give the Owner a written notice setting out: (i) the cause of the delay; (ii) the time during which the carrying out of the Works was delayed; and (iii) the extension of the Date for Practical Completion that the Contractor claims as a result of the delay, Within 28 Days after the Contractor becomes aware of the conclusion of the delay or 21 Days after Practical Completion, whichever is the earlier. [15] The plaintiff submits that the purpose of subsection (b) is to impose an express obligation on the defendant to provide the plaintiff with notice of any claim for an extension of time, including the extension of time that the defendant now claims by its defence.17 The defendant did not cavil with the submission that it did not provide 16 Plaintiff’s Submissions at [16]. 17 Ibid at [24], citing Defence at paragraphs 10(d) and 52(b). -- 6 of 29 -- 6 notice for an extension of time under Clause 22(a) and (b), and abandoned any argument that Clause 22(b) was not a condition precedent to Clause 22(a).18 [16] Annexure C provides that it was the obligation of the owner “to arrange All Permits for Demolition, Operational Works (if applicable), Building and Plumbing including inspections”. The defendant submits that the plaintiff’s failure to obtain these approvals in a timely fashion resulted in the plaintiff repudiating the contract. The plaintiff contends that the word “arrange” should be given its plain ordinary meaning: that is, to “organise or make plans for”,19 and that no timeframe to “arrange” the approvals was specified in the contract, nor was pleaded by the defendant.20 The plaintiff argues, in the alternative, that even if it was in breach of its obligations under Annexure C, the defendant was entitled, under Clause 22, to:21 (a) an extension to the Date for Practical Completion (which would extinguish any potential liquidated damages levied against it caused by delayed Approvals); and (b) any increase in the cost to the defendant in carrying out the Works, including supervision and off-site overheads, arising directly or indirectly out of the delay”, which cost was to be “added to the Contract Sum”. [17] Clause 20 provides for suspension of works. The defendant is permitted to suspend its Works, by written notice, if it considers that the plaintiff was in substantial breach of the contract. The plaintiff contends that if the defendant believed that the plaintiff was in breach of its obligations to arrange the Demolition Approval, the Plumbing Approval and the Building Approval, it could have, but did not, issue a notice under Clause 20 and suspended its Works at any time.22 [18] Clause 2(a) provides that performance of the contract is conditional on the owner obtaining finance from the lending authority where the Schedule states that the contract is conditional on the owner obtaining finance. The Schedule states that the contract was conditional on the plaintiff obtaining construction finance. The evidence is that the plaintiff did not obtain construction finance for the project until 16 October 18 Amended Submissions for the Defendant at [21]. 19 Collins Dictionary 2021. 20 Plaintiff’s Submissions at [28]. 21 Ibid at [29]. 22 Ibid at [30]-[31]. -- 7 of 29 -- 7 2015.23 Therefore, the plaintiff contends that on the proper construction of Clause 2(a), the plaintiff’s obligation to “arrange” the Demolition Approval, the Plumbing Approval and the Building Approval did not commence until 16 October 2015.24 Evidence at Trial [19] The plaintiff called three witnesses: Mr Thomson, the development manager, Mr Adamson, director of the plaintiff company, and Mr Newman, director of CJN Constructions, which completed the Works. [20] In addition, two bundles of documents were tendered into evidence, which were described in the following way: (a) Tab A, current versions of the pleadings; (b) Tab B documents, which were the subject of a notice to admit which was never responded to; and (c) Tab C documents, which were not the subject of a notice to admit and which would be tendered in due course. [21] Mr Thomson gave evidence about the need for permits for building, plumbing, demolition etcetera issued progressively, but not all at the start of the project. He also gave evidence about changes to the architectural drawings as a result of a request by the defendant in respect of a party wall. In addition, further changes had to be made as a result of a further change requested by the defendant such that the ground floor would be blockwork and the floors above would be shaftliner. [22] Mr Adamson gave evidence about the project, the repudiation and the engagement of CJN Constructions, as well as the financial arrangements and additional costs and loss associated with the repudiation. [23] Mr Newman gave evidence that CJN Constructions performed the Works and was paid for the Works it performed, the difference between the two contracts being $85,656.25. 23 TS2-52.18 - .21 (evidence of Mr Addison). 24 Plaintiff’s Submissions at [33]-[34]. -- 8 of 29 -- 8 [24] Mr Newman also gave evidence that there were never any “additional works” involved in the cost increase and that Practical Completion was 29 September 2017, including a 40 day extension of time, meaning that Practical Completion could have been achieved by 20 August 2017.25 [25] The only witness for the defendant was Mr Hastie, director of the defendant company. Mr Hastie gave evidence about the formation of the contract and his eventual termination of the contract as a result of delay in the finalisation of the plans. The constant change of the plans caused him to doubt the viability of the project. This delay caused him to form the view that the quote he had provided was insufficient to complete the Works. Plaintiff’s Submissions Repudiation by Defendant [26] The plaintiff contends that repudiation occurred on 17 March 2016. It was on this date that Mr Hastie sent an email, attaching a letter, to Messrs Addison and Thomson. Both the email and the attached letter made it evident that the defendant was seeking to terminate the contract. [27] The email relevantly stated:26 I regret to inform you that we will be terminating your contract for the construction at Kates St Morning side [sic, Pickwick Street]. Please see attached letter… Due to unforeseen time taken to date we are no longer able to build this project within our construction schedule or for the costs originally quoted… [28] The attached letter relevantly stated:27 We write to advise you that OJ Pippin Homes Pty Ltd will be terminating the build contract for the dwellings to be constructed at the above address. The construction cost have increased significantly since the project was priced, almost 12 months ago. The building approval process has been extremely lengthy and we no longer have the capacity to undertake the works within our production schedule… [29] However, the plaintiff contends that the true reason why the defendant repudiated the contract is revealed from a text message that Mr Hastie sent to Mr Thomson on 18 March 2016, which reads: 25 Ibid at [133]. See also TS2-67.3 to .8. 26 Exhibit 1, Tab 32. 27 Exhibit 1, Tab 32. -- 9 of 29 -- 9 Hi Kevin …Not sure if you will get this but I just can’t build this project sorry mate. We just lost two of our most experienced supervisors and Kelly [Simpson] in the office due to the complexities of building these small projects. Our costs for these are going through the roof with trades charging big premiums on rates due to access issues etc. this is then causing delays in contract times and hence liquidated damages. We have decided as a business to go back to just houses at this state. I really am sorry for the inconvenience caused. [footnotes omitted] [30] The plaintiff submits that the text message does not refer to “delay” with respect to the Approvals. It rather shows that the reason the defendant was unable to build the project was solely attributable to it, rather than the plaintiff. Consequently, the plaintiff submits that the defendant had no lawful basis to terminate the contract on the grounds stated in the email and letter. Plaintiff’s Acceptance of Defendant’s Repudiation [31] The plaintiff further contends that it accepted the defendant’s repudiation of the contract by its letter dated 23 June 2016. That letter relevantly stated:28 I refer to your letter of 17 March 2016…Both your letter, and your abandonment of the contract and works, each amount to a wrongful repudiation and breach of the contract. To avoid the cost and expense to both of us associated with following the formal termination procedure under the contract, we propose…that we agree that the contract was at an end as at 17 March 2016 as a result of your letter….any and all rights we have under the contract or otherwise (including but not limited to any rights to damages) are reserved… [32] The defendant submitted that the Court was not entitled to consider this letter as the letter was marked “without prejudice save as to costs” and was therefore “subject to without prejudice privilege which cannot be…unilaterally waived by the plaintiff or the [o]wner”.29 However, the plaintiff counters against this submission on four bases:30 (a) The letter was admitted into evidence by the plaintiff without objection from the defendant; (b) The letter was specifically identified (and its terms revealed) during the course of Mr Addison’s evidence; 28 Exhibit 1, Tab 36. 29 Plaintiff’s Submissions at [55]. 30 Ibid at [56]-[57]. -- 10 of 29 -- 10 (c) The letter appears as document number 75 on the defendant’s list of documents; (d) Alternatively, if the letter was properly captured by “without prejudice” privilege, the defendant’s conduct in allowing it into evidence without objection constituted a waiver of its privilege. [33] I find that the plaintiff’s letter conveyed to the defendant that the plaintiff was treating the contract as at an end. Plaintiff’s Loss and Damage [34] The plaintiff claims loss and damage under a number of heads, initially being increased costs of construction. The plaintiff submits that the increased costs of construction is the difference between the costs that the plaintiff would have incurred to complete the Works had the defendant not repudiated the contract, compared to the actual costs incurred by the plaintiff to have the Works completed.31 It is submitted that had the defendant not repudiated the contract, the costs of the Works would have been the contract sum of $1,452,100.00 minus the costs already incurred and paid for by the plaintiff in respect of the Works, being $37,086.70, making the sum $1,415,013.30.32 [35] The plaintiff paid CJN Constructions a fixed lump sum to complete the Works, being $1,494,073.55, making a difference of $79,060.25. It is submitted that the plaintiff is entitled to judgment of at least that sum.33 In addition, the plaintiff paid CJN Constructions a provisional sum of $6,596.00 to complete the Excavation Works, which was an addition to the fixed lump sum that CJN Constructions agreed to perform the Works for.34 [36] It was submitted that if the Site had been cut to the levels set out in drawing WD-100 dated 27 January 2016, CJN Constructions would not have been required to perform any Excavation Works. Accordingly, the plaintiff is entitled to $85,656.25 in respect of this loss and damage.35 31 Ibid at [111]. 32 Ibid at [112]. 33 Ibid at [113]. 34 Ibid at [114]. 35 Ibid at [119]-[120]. -- 11 of 29 -- 11 Additional CJN Constructions Works [37] Although it was pleaded that CJN Constructions carried out upon the Site “works that were additional to, or different from, the Works provided for under the Contract Documents for the Building Contract”, set out in paragraph 44(b) of the Defence, there were no such additional CJN Constructions works, and the allegation contained in the Defence should be rejected. [38] It was submitted that the only evidence on this point was from the plaintiff’s witnesses to the effect that:36 (a) It was correct that face brick was not used, but rendered blue board was used in its place, and that did not result in any price decrease;37 (b) None of the plaintiff’s witnesses were aware of any “different” sliding door configurations,38 “alterations” to the middle level floor plans, “additional” external lighting or “additional” front letterbox banks. The Plaintiff’s Loss and Damage, Additional Interest and Bank Fees Charged Against the NAB Loan [39] The plaintiff obtained a loan from the NAB in the sum of $520,000.00 to purchase the Site (the “NAB Loan”). Interest and service fees were charged against it on a monthly basis. Mr Addison gave evidence that the repayment of the NAB Loan in full was tied to completion of the project. That is, the plaintiff required some of the townhouses to settle before the NAB Loan could be repaid in full.39 [40] Mr Addison gave evidence that:40 Can you recall the circumstances in which the loan was paid off? That is, how the funds came to be paid off? So that was paid off when the – there were two pre-sales on the development, and when those two pre-sales settled on 21 st December 2017 then, this loan was able to be paid off in full. Ok. All right. So is it the case that they required at least pre-sales to settle before you could pay off this loan? That’s right, yeah. Yep. 36 Ibid at [122]. 37 TS2-32.45 to 2-33.3; 3-21.45 to 3-22.3; 3-40.20 to .26. 38 TS1-42.25; 3-40.10. 39 Plaintiff’s Submissions at [126]. 40 TS2-73.35 to .41. -- 12 of 29 -- 12 [41] It was submitted that I would be satisfied that the defendant’s repudiation of the contract caused additional interest and bank charges against the NAB Loan after 26 June 2016 such that, as a matter of ordinary common sense and experience, the repudiation should be regarded as a cause of that loss and damage.41 [42] Mr Addison gave evidence that “there [were] 84 days in between when it actually was finished on the 29 th of September 2017, to when it was paid off on the 22nd of December 2017. So I could have paid it off 84 days after the 26 th of June 2016”.42 It was further submitted that the plaintiff claims interest and service charges against the NAB Loan for the period commencing from 26 June 2016 until 20 August 2017. This date is the date when Practical Completion could have been achieved by CJN Constructions if it had not been granted a 40 day extension of time.43 [43] Accordingly, the difference between the dates is 420 days. The total interest in bank fees incurred by the plaintiff against the NAB Loan for the increased duration of the project was therefore $33,423.15. These charges are particularised in Annexure A of the Amended Statement of Claim and can be cross-referenced with NAB bank statements.44 Accordingly, the plaintiff submits that he suffered loss of damage in the sum of $33,423.15 as a consequence of the defendant’s repudiation of the contract and judgment should be given for that sum in addition to other loss and damage.45 The Plaintiff’s Miscellaneous Loss and Damage [44] The plaintiff also claims loss as set out in Annexures D and E of the Amended Statement of Claim, which it says is a loss and damage suffered by the plaintiff as a consequence of the defendant’s repudiation of the contract. It is submitted that the costs set out in Annexure D are in the nature of expenses associated with ownership of the Site and are claimed for the increased duration of the project. Date Description Invoice No. Amount 4 July 2016 Council rates 5000 1029 4092 426 $600.05 15 July 2016 Urban Utilities – water and sewerage costs 1014 1507 77 $178.59 18 October 2016 Urban Utilities – water and sewerage costs 1014 1507 81 $376.56 30 August 2016 Land tax 400006186813 $3,291.65 41 Plaintiff’s Submissions at [128]. 42 TS2-74.1 to .4. 43 Plaintiff’s Submissions at [133]. 44 Ibid at [136]. 45 Ibid at [137]. -- 13 of 29 -- 13 13 January 2017 Council rates 5000 1030 7862 307 $755.20 3 April 2017 Council rates 5000 1030 8413 141 $756.15 17 April 2017 Urban Utilities – water and sewerage costs 1014 1507 83 $205.96 5 July 2017 Council rates 5000 1031 3409 594 $859.70 17 July 2017 Urban Utilities – water and sewerage costs 1014 1507 84 $197.66 Total $7,221.52 [45] It is submitted that these costs are associated with the plaintiff’s ability to sell the townhouses promptly after 26 June 2016. If it had, it would not have incurred the invoices listed in the annexure. Accordingly, the plaintiff claims $7,221.52 in respect of this head of loss. [46] Annexure E sets out other loss and damage incurred by the plaintiff: Date Description Invoice No. Amount 30 June 2016 Quantity surveyor report of Mitchell Brandtman – review of reasonableness of CJN tender 42145 $3,850.00 27 July 2016 Quantity surveyor report of Mitchell Brandtman – review of reasonableness of CJN tender 42375 $2,420.00 29 July 2016 Legal fees – CJN Building contract 202719 $1,428.57 31 August 2016 Legal fees – CJN Building contract 203327 $2,179.49 30 August 2016 Project management fees – obtaining build quotes from alternate builders INV-0018 $2,750.00 24 November 2016 Temporary front fence Fence procured to stop trespasses while new builder sourced. 144 $424.00 30 May 2017 NAB Valuation Report NAB Statement no. 12. $3,450.00 30 May 2017 Fee for extension of building approval 015339 $660.00 Total $17,162.06 [47] Again, the plaintiff submits that it would not have incurred these costs had the defendant not repudiated the contract, and accordingly, as set out Annexure E, as a consequence of the defendant’s repudiation of the contract, the plaintiff is entitled to judgment in the sum of $17,162.06. The Plaintiff’s Loss and Damage: The Macquarie Bank Line of Finance [48] It is submitted that Mr Addison had a line of finance with the Macquarie Bank, totalling $480,000.00. Mr Addison gave evidence that he agreed to loan money to -- 14 of 29 -- 14 the plaintiff so that it could pay for project expenses. To do so, Mr Addison would draw down against the Macquarie Bank line of finance and loan the money to the plaintiff. Loans to the plaintiff were made on the basis that the plaintiff would repay the money loaned, plus any interest charged to Mr Addison by Macquarie Bank. By 26 June 2016, Mr Addison had loaned the plaintiff $340,789.11, as set out in Annexure B of the Amended Statement of Claim.46 The sum of $340,789.11 was reduced to $305,093.33 upon the return of the deposit by the defendant on or about 1 July 2016.47 [49] It is submitted that the plaintiff is entitled to recover interest and charges on the same basis as the NAB Loan for the period commencing after 26 June 2016 until 20 August 2017.48 For these reasons, the plaintiff suffered loss and damage under this head in the sum of $15,706.67 and is entitled to judgment for that amount.49 This makes the total claim for loss suffered by the plaintiff as a result of the defendant’s repudiation of the contract in the sum of $159,169.69 (excluding interest). Liquidated Damages as a Sole Remedy [50] It was submitted, at paragraph 66 of the Defence, that: The defendant further denies any liability in respect of the claims pleaded in paragraphs 18 to 35 (inclusive) of the statement of claim for the following additional reasons: (a) as a matter of the proper construction of clause 26 of the General Conditions of the Building Contract (or the alleged Contract), clients (sic – claims) for a liquidated damages in respect of July to the completion of the subject works are barred by that clause. … [51] It was submitted that Clause 26 in the contract sets out the plaintiff’s right to levy liquidated damages against the defendant. That clause is expressly premised on the defendant failing to ensure that the Works reach Practical Completion by the Date of Practical Completion.50 [52] In this case, that never occurred. The plaintiff submitted that where a contract is terminated by acceptance of a builder’s repudiation, the applicable principle is stated in Brooking on Building Contracts (5th ed, 2014) as follows: 46 Ibid at [158]. 47 Ibid at [161]. 48 Ibid at [166]. 49 Ibid at [168]. 50 Ibid at [170]. -- 15 of 29 -- 15 Where the contract is determined by acceptance of a repudiation, liquidated damages which have become payable up to the time of the determination may be recovered, but thereafter the liability of the contractor for liquidated damages will cease, although the contract will be liable for unliquidated damages. This is the consequence of the rule that the effect of the acceptance of the repudiation of a contract is to put an end to the contract so far as its future performance is concerned, leaving the repudiating party liable to an action in damages. [53] It was also submitted that in Shaw & Anor v MFP Foundations and Pilings Ltd,51 it was said that: …after the date of termination the parties are no longer required to perform their primary obligations under the contract and so the contractor’s obligation to complete by the completion date no longer remains and the provision of liquidated damages therefore becomes irrelevant. In its place arises an obligation to pay damages for the employer’s loss resulting from the breach of contract, including damages for any loss resulting from any further delay… [54] It was submitted that because the contract was repudiated prior to the Date for Practical Completion, Clause 26 became irrelevant and in its place arises an obligation of the defendant to pay damages for the plaintiff’s loss resulting from the repudiation. [55] The plaintiff provided Reply Submissions dated 25 August 2021. I note, however, that the matters contained therein do not raise any new issues to those which are contained in its Closing Submissions dated 4 August 2021. Defendant’s Submissions [56] The defendant provided a chronology as set out below:52 Date Event Document number 06.01.2014 Macquarie Loan Exhibit 1 doc 3 09.09.2014 Development Approval Exhibit 1 doc 5 02.03.2015 Settlement of purchase of property Exhibit 1 doc 8 19.04.2015 Plans sent to Defendant WG Plans WD000-Revision 2 Brisse Plans Revision A Exhibit 1 doc 9 20.05.2015 Email from Estimator re change to party walls Exhibit 1 doc 10 04.06.2015 Defendant’s Quote Accepted Exhibit 2 21.07.2015 Email re Waiting for finance Exhibit 3 05.08.2015 Defendant’s Contract finalised Exhibit 1 doc 1 29.09.2015 National Australia Bank loan offer Exhibit 1 doc 11 01.10.2015 Civil & hydraulic plans sent Exhibit 1 doc 12 12.10.2015 Email from Defendant chasing demolition approval Exhibit 1 doc 13 22.10.2015 Demolition approval received Exhibit 1 doc 15 27.10.2015 Demolition underway Exhibit 1 doc 16 51 [2010] EWHC 1839. 52 See Amended Submissions for the Defendant. -- 16 of 29 -- 16 16.11.2015 WG Plans sent via dropbox “to reflect changes in tender phase” Exhibit 1 doc 17 19.11.2015 QLeave Levy, QBCC Insurance & Seal-off Certificate sent to Mr Thompson (Requested 18.11.2015) Exhibit 1 doc 17 19.11.2015 Issue re dryers on party walls Exhibit 1 doc 18 23.11.2015 Email – plans with the Certifier Exhibit 6, Exhibit 10 19.01.2016 Email from Mr Thompson: - Updated drawings by Friday - Request for Seal-off Certificate - Reference to “upholding quote” - Starting works from “current plans” Exhibit 1 doc 21 21.01.2016 Seal-off Certificate resent Exhibit 1 doc 22 25.01.2016 Civil plans sent Exhibit doc 24 01.02.2016 Site levels discrepancies mentioned – onsit meeting requested Exhibit 1 doc 25 04.02.2016 Site meeting Exhibit 8 04.02.2016 Latest revision of plans sent by dropbox (no disclosure of plans sent in link) Exhibit 1 doc 26 17.02.2016 Further query on Site levels discrepancies Exhibit 1 doc 27 03.03.2016 Staged approval sent WG Plans WD 000-Revision 2 Brisse plans Revision C Exhibit 1 doc 27; Exhibit 9; Exhibit 15 04.03.2016 Defendant’s email re price increase Exhibit 1 doc 28 09.03.2016 Macquarie finance “rollover” Exhibit 1 doc 29 10.03.2016 Request for certified hydraulics & civils Exhibit 1 doc 30 17.03.2016 Defendant sends termination email Exhibit 1 doc 32 18.03.2016 Defendant sends sms re termination Exhibit 1 doc 33 18.03.2016 Fire Engineering Report received Exhibit 11 30.05.2016 Plaintiff makes offer of $125,000 Exhibit 1 doc 34 01.06.2016 Defendant rejects offer Exhibit 1 doc 35 23.06.2016 Letter from Plaintiff re termination Exhibit 1 doc 36 08.07.2016 Quote from CJN Exhibit 14 15.07.2016 Tender Assessment Exhibit 32 15.08.2016 Contract with CJN Exhibit 1 doc 38 17.08.2016 Final Building Approval issued – Form 6 Stamped Plans Exhibit 12; Exhibit 5 23.08.2016 Final Building Approval sent Exhibit 13 16.02.2017 Party wall design issue identified Exhibit 1 doc 43 31.08.2017 Soil removal invoice Exhibit 1 doc 42 29.09.2017 Practical Completion Exhibit 1 doc 41 [57] The defendant made lengthy submissions in respect of the delays leading up to termination, based on the chronology and the evidence provided at trial, including the delays with respect to the party wall. It was submitted that prior to formation of the defendant’s contract, the defendant proposed to change from the party walls in the original plans.53 This is reflected in Annexure C to the defendant’s contract and was based on the defendant’s experience with different wall systems. It was submitted that this change did not lead to any delay.54 53 Ibid at [57]. 54 Ibid at [58]. -- 17 of 29 -- 17 [58] Further submissions were made in respect of the Site levels discrepancies. It was submitted that the defendant commenced earthworks on the Site in January or February 2016. This was at the request of Mr Thompson to keep activity on the Site while waiting for the approvals.55 It was submitted that the evidence was consistent, and no approvals were required for earthworks to be undertaken.56 The staged approval was provided in March 2016 and the defendant was encouraged to start work on the slab and footings immediately.57 It was submitted that Mr Hastie gave evidence that, if he had poured the slab in accordance with the staged approval plans, he would have had to pull it up and redo the Works on the basis of the changes to the final building approval plans.58 [59] It was submitted that based on the fact that CJN Constructions was cutting deeper into the Site than the defendant had, the defendant would not have uncovered the buried rubbish during its earthworks.59 It is therefore reasonable that the rubbish removal would have been required in any event when uncovered by the defendant, should it have continued the Works.60 It was submitted that this is not a cost caused by the actions of the defendant, and therefore, the claim of $6,596.00 for excess spoil and rubbish removal should be disallowed.61 [60] The defendant then made lengthy submissions in respect of the claim for interest. It was submitted that, on the basis of the argument that the defendant would not have been able to commence works on the Site any earlier than CJN Constructions, and therefore, not complete those works any earlier, there should be no amount for interest claimed pursuant to Annexure A.62 In the alternative, it was submitted that, on the basis of the nominal Date for Practical Completion being extended to 20 November 2016, the maximum interest claimable under Annexure A would be $21,601.71.63 55 Ibid at [79]-[80]. 56 Ibid at [81]. 57 Ibid at [93]. 58 Ibid at [94]. 59 Ibid at [113]. 60 Ibid at [114]. 61 Ibid at [115]-[116]. 62 Ibid at [153]. 63 Ibid at [154]. -- 18 of 29 -- 18 [61] It was further submitted that the only amounts to be allowed in Annexure B should be $226,210.57, which amounts were acceptable only on the basis that there were invoices to show the amounts claimed.64 [62] In respect of Annexure C, it was submitted that interest should only be allowed on the amount of $140,000.00, which was the actual drawn downs from the Macquarie account in the relevant period.65 [63] In respect of Annexure D, it was submitted that no amount for costs should be allowed in Annexure D, on the basis that the defendant could not have been able to complete the Works any earlier than CJN Constructions, or in the alternative, on the basis of a nominal Date for Practical Completion being extended to 20 November 2016, the maximum amount claimable under Annexure D would be $2,774.67.66 [64] In respect of Annexure E, it was noted that Mr Addison admitted that no work was undertaken by Focus to engage CJN Constructions, but that the “invoice was paid anyway”.67 It was further submitted in respect of Annexure E that, on the basis the defendant could not have been able to complete the Works any earlier than CJN Constructions, the amount for the extension of building approval should also be excluded.68 [65] The defendant submitted that in respect of the increase in contract price, there should not be any allowance to the plaintiff in its claim for damages for the increase in costs at all, as the plaintiff was prepared to pay the defendant an amount of $125,000.00 as late as May 2016 to complete the defendant’s contract, and that amount is more than the increased amount it actually cost the plaintiff.69 In the alternative, the amount allowed for the increase should be decreased by at least $50,000.00, the amount indicated in the 4 March 2016 email.70 It was submitted therefore that the defendant did not cause any loss to the plaintiff, and that the plaintiff knew that the price would 64 Ibid at [177]-[178]. 65 Ibid at [183]. 66 Ibid at [187]-[188]. 67 Ibid at [189]. 68 Ibid at [202]. 69 Ibid at [222]. 70 Ibid at [223]. -- 19 of 29 -- 19 increase and was prepared to incur an increase of as much as $125,000.00 on top of the amount already paid to the defendant.71 [66] In respect of quantum, it was submitted that Practical Completion should be 20 November 2016 at the earliest. In the circumstances, in respect of interest claimed, no amount for interest should be allowed on Annexure A, C and D, and an amount of $8,542.06 only should be allowed for Annexure E. [67] In respect of the increase in contract price, the defendant maintained that no amount for an increase in the contract price on the basis that the plaintiff was prepared to pay $125,000.00 in increased costs to finalise the Works, so the maximum damages allowed should be $44,198.31. [68] It was submitted that in respect of a breach of term of a building contract, the prima facie measure of damages is the cost of necessary and reasonable work to make the building conform to the contract, together with consequential loss.72 [69] The defendant submitted that by not obtaining “all necessary consents, approvals and permits to carry out the works” in a timely fashion, the plaintiff did not meet the condition precedents required to enable the defendant to undertake its contractual duties, being the construction Works. The failure by the plaintiff to fulfil the condition precedents justified the defendant’s refusal to continue with the defendant’s contract. [70] It was submitted that the defendant lost faith in the plaintiff’s ability to perform its obligations under the defendant’s contract, and therefore, was unable to proceed. [71] It was further submitted that the question to be posed is “would the plaintiff had suffered the loss for which recovery is sought ‘but for’ the defendant’s breach”. It was submitted that this is the manifestation of the traditional “but for” test. It was submitted that if the loss would have been suffered anyway, no more than nominal damages would be payable.73 71 Ibid at [225]. 72 Bellgrove v Eldridge (1954) 90 CLR 613. 73 Reg Glass Pty Ltd v Rivers Locking Systems Pty Ltd (1968) 120 CLR 156. -- 20 of 29 -- 20 [72] It was further submitted that the “but for” test is considered in the matter of Alexander v Cambridge Credit Corporation Limited,74 where the Court determined that while there had been a breach in respect of the auditor’s duties, the defendant was not held to be liable for the damage suffered. [73] It was argued that had the defendant not terminated the defendant’s contract, there would still have been: (a) an increase in costs on the defendant’s contract in at least the region of $50,000.00; and (b) an extension to the time for Practical Completion. [74] The defendant submitted that this would have seen the alleged loss incurred in any event, as time would have needed to be extended and the price would have increased in order for the defendant to fulfil obligations once the plaintiff’s condition precedents had been met. [75] It was contended that the defendant should not be held liable for losses caused by delays that were clearly in the control of the plaintiff or its agents. Discussion and Decision Proper Party Defence [76] I note that the defendant, in its Defence, stated that the defendant did not enter into a contract with the plaintiff, but rather with Addinos Pty Ltd ABN 159 849 584. [77] I am satisfied, on the evidence provided by Mr Addison, that the correct plaintiff is Addinos Pty Ltd ACN 166 300 349, in its capacity as trustee of the Addinos Discretionary Trust ABN 159 849 584. [78] I accept the submission made by the plaintiff that this does not, in any way, affect the legality of the contract, and note the statements made in Yara Australia Pty Ltd v Oswal [No 2] that:75 The fact that Pankaj was described as trustee of the Burrup Trust in the OSD and the SD does not alter the fact that those deeds were executed and entered into by Pankaj. The common law does not recognise a trustee as having assumed an additional or qualified legal personality… 74 (1987) 9 NSWLR 310. 75 [2013] WASCA 265 at [259]. -- 21 of 29 -- 21 [79] Further, Murphy JA relevantly stated:76 Moreover, at law, a trustee does not have any “additional or qualified legal personality”: Elders v Reeves. In Duvall v Craig 15 US 2 Wheat 45, the point was expressed by Justice Story as follows: A trustee, merely as such, is, in general, only suable in equity. But if he chooses to bind himself by a personal covenant, he is liable at law for a breach thereof in the same manner as any other person, although he describe himself as covenanting as trustee; for, in such case, the covenant binds him personally, and the addition of the words “as trustee” is but matter of description to show the character in which he acts for his own protection, and in no degree affects the rights or remedies of the other party … Termination [80] The plaintiff and defendant signed a contract on 5 August 2015 by which the defendant agreed for a price of $1,455,650.00 to construct six townhouses on the plaintiff’s property at Lot 7, 17 Pickwick Street, Cannon Hill. The contract price was subsequently varied to $1,452,100.00 and construction was to be completed within 34 weeks, plus a 10 day inclement weather allowance. [81] On 17 March 2016, Mr Hastie sent an email and attached letter to Mr Addison and Mr Thompson, which read: I regret to inform you that we will be terminating your contract for the construction at Kates St Morning side [sic, Pickwick Street]. Please see attached letter… Due to unforeseen time taken to date we are no longer able to build this project within our construction schedule or for the costs originally quoted… [82] Mr Hastie’s attached letter relevantly said:77 We write to advise you that OJ Pippin Homes Pty Ltd will be terminating the build contract for the dwellings to be constructed at the above address. The construction cost have increased significantly since the project was priced, almost 12 months ago. The building approval process has been extremely lengthy and we no longer have the capacity to undertake the works within our production schedule… [83] The plaintiff says that the real reason the defendant repudiated the contract appears in a text message sent by Mr Hastie to Mr Thompson on 18 March 2016, which said, relevantly: Hi Kevin …Not sure if you will get this but I just can’t build this project sorry mate. We just lost two of our most experienced supervisors and Kelly [Simpson] in the office due to the complexities of building these small projects. Our costs for these are going through the roof with trades charging big premiums on rates due to access issues etc. this is then causing delays in contract times and 76 Ibid at [409]. 77 Exhibit 1, Tab 32. -- 22 of 29 -- 22 hence liquidated damages. We have decided as a business to go back to just houses at this state. I really am sorry for the inconvenience caused. [footnotes omitted] [84] It was submitted, and I accept, that the message conveys that the defendant did not intend to build the project because of issues solely related to the defendant, and not to any delay on the part of the plaintiff. [85] By letter dated 23 June 2016, the plaintiff accepted the defendant’s repudiation. That letter said: I refer to your letter of 17 March 2016…Both your letter, and your abandonment of the contract and works, each amount to a wrongful repudiation and breach of the contract. To avoid the cost and expense to both of us associated with following the formal termination procedure under the contract, we propose…that we agree that the contract was at an end as at 17 March 2016 as a result of your letter….any and all rights we have under the contract or otherwise (including but not limited to any rights to damages) are reserved… [86] In The Progressive Mailing House Pty Ltd v Tabali Pty Ltd,78 Mason J, when discussing the question of repudiation, held: What needs to be established in order to constitute a repudiation is that the party evinces an intention no longer to be bound by the contract or that he intends to fulfil the contract only in a manner substantially inconsistent with his obligations and not in any other way. [87] I am satisfied that the defendant had no lawful basis to terminate the contract on the grounds stated by Mr Hastie, and that those communications evinced an intention to no longer be bound by the contract. [88] I accept that this letter communicated to the defendant that the plaintiff treated the contract as at an end. [89] I note the principles set out in Cooper v Kinsella:79 An act of acceptance of a repudiation requires no particular form: a communication does not have to be couched in the language of acceptance. It is sufficient that the communication or conduct clearly and unequivocally conveys to the repudiating party that that [sic] aggrieved party is treating the contract as at an end. [90] Accordingly, I find that the defendant repudiated the contract by emailing the attached letter dated 17 March 2016. I find that the plaintiff accepted the defendant’s repudiation of the contract by letter dated 23 June 2016. 78 (1985) 157 CLR 17 at 33. See also Shevill v The Builders Licensing Board (1982) 149 CLR 620 at 625-6. 79 [2011] NSWCA 45 at [70]. -- 23 of 29 -- 23 Extension of Date for Practical Completion [91] In its Defence, the defendant said that it is entitled to an extension to the Date for Practical Completion in the contract, in particular, in accordance with sub-clause 22(a) of the General Conditions of seven calendar months and 12 days, being the period of time from 5 August 2015 up to and including, 17 March 2016.80 [92] Clause 22 provides: (a) The Contractor is entitled an extension of the Date for Practical Completion if the progress of the Works is delayed as a result of any of the following causes: … (xii) an act of prevention by the Owner not otherwise covered by this clause; or (xiii) any other matter, cause or thing beyond the control of the Contractor. (b) If, at any time prior to the Works reaching Practical Completion, the Contractor believes that the progress of the Works was delayed as a result of a cause set out in clause 22(a), the Contractor shall give the Owner a written notice setting out: (i) the cause of the delay; (ii) the time during which the carrying out of the Works was delayed; and (iii) the extension of the Date for Practical Completion that the Contractor claims as a result of the delay, Within 28 Days after the Contractor becomes aware of the conclusion of the delay or 21 Days after Practical Completion, whichever is the earlier. [93] In accordance with Clause 22(b), the contractor must give the owner a written notice of the delay. I accept that compliance with Clause 22(b) is a condition precedent to the defendant’s entitlement to an extension of the Date for Practical Completion. [94] In making that finding, I note the comments made in Opat Decorating Service (Aust) Pty Ltd v Hansen Yuncken (SA) Pty Ltd81 and Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd.82 [95] In Opat, the relevant clause read: …the Sub-Contractor shall if he desires to claim an extension of time for completion of the Works give to the Contractor not later than fourteen (14) days after the cause of delay arose notice in writing of his claim for an extension of time for completion of the Works together with a statement of the facts which he bases his claim. 80 Defence at paragraph 52(b). 81 (1994) 11 BCL 306 (‘Opat’). 82 (1996) 12 BCL 317 (‘Australian Development Corporation v White Constructions’). -- 24 of 29 -- 24 [96] The Court found:83 Let me look at CL31(b). It begins by speaking of circumstances in which the parties contemplate that the appellant might want an extension of time within which to complete work. The parties when negotiating the contract, knowing the exigencies of the trade, agreed that some such circumstances might arise. What should be done about it? They answered this question by saying that the notice should be given by the appellant to the respondent, by sub-contractor to contractor. They decided something about the time within which notice should be given. What did they decide? They decided that it should be given within fourteen days after the cause of delay arose. They knew the exigencies of the trade. They knew what practical questions or issues would arise when notice was given. They knew when it was best for the notice to be given. They fixed on that fourteen day period. And they meant the clause which emerged from these deliberations to be effective within its terms. That is to say they meant what CL31(b) says to be the position. They meant to bind themselves to it. [97] In Australian Development Corporation v White Constructions, Giles CJ held: If the Company is delayed at any time in the progress of the Project by any cause whatsoever beyond the control of the Company (which are the causes of delay listed in Article 4.4.2) then the Date for Practical Completion shall be extended by a period equal to the extent of such delay to the Company. Within 30 days of when the Company reasonably believes that delay has occurred within the meaning of this clause, it shall notify the Developer of the time of commencement and actual or estimated termination of the delay, the cause thereof and the manner in which the progress of the Project has been or will be delayed and the Developer shall determine the time by which the Date for Practical Completion shall be extended. … Imposing the notification requirement upon ACT was a deliberate and important part of the mechanism for determining the time by which the date for practical completion should be extended. It was in mandatory terms ("shall notify") equivalent to the mandatory terms imposed on ADC ("shall determine the time"), and as in Wormald Engineering Pty Ltd v Resources Conservations Co International to give ADC no more than an action for damages if timely notification was not given would not be satisfactory - it would leave difficulties of proving what ADC would or might have done had timely notification been received and quantifying the damage suffered, which the parties are unlikely to have intended. Although, as ACT pointed out, article 4.4.1 did not state that the date for practical completion would not be extended unless timely notification was given, nor did CL40.2 in Wormald Engineering Pty Ltd v Resources Conservations Co International or CL31 in Opat Decorating Service (Aust) Pty Ltd v Hansen Yuncken (SA) Pty Ltd expressly state a condition precedent and the statement of a condition precedent in CL47 in Opat Decorating Service (Aust) Pty Ltd v Hansen Yuncken (SA) Pty Ltd was regarded as no more than a reminder. In my opinion, therefore, in the absence of timely notification as required by article 4.4.1 ACT was not entitled to extension of the date for practical completion. Did the Plaintiff Repudiate the Contract? [98] In paragraph 39 of the Defence, it is pleaded: ...by its excessive and unreasonable delay and failure to obtain the requisite approvals in a timely fashion, and by its failure at any time to obtain the construction approval for the remainder of the Works over and above the partial approval, and further or alternatively by making no or no reasonable efforts to obtain the requisite approvals in a timely fashion, the Owner: (a) breached its obligation under annexure C to the Building Contract to obtain the requisite approvals; 83 (1994) 11 BCL 306 at 10. -- 25 of 29 -- 25 (b) breached its obligation under the Building Contract to co-operate in doing all things necessary to enable the defendant to have the benefit of the Building Contract; (c) indicated that it would perform its obligations under the Building Contract (if at all) as, when and how it saw fit, with no regard at all for the timely carrying out of such obligations so as to progress the project; (d) evinced an intention no longer to be bound by the Building Contract, and repudiated it (“the Owner’s repudiation of the Building Contract”). [99] As set out in the chronology at paragraph [56] above, the defendant points to the following delay as evidence of the plaintiff’s repudiation:84 (a) The delay in not obtaining the Demolition Approval until 22 October 2015; (b) The delay in not obtaining the partial Building Approval until 3 March 2016; (c) The failure to “obtain the construction approval of the remainder of the Works over and above the partial approval”; and (d) The plaintiff “making no or no reasonable efforts to obtain the requisite approvals in a timely fashion”. [100] Accordingly, based on the defendant’s Defence, the question is: did the plaintiff renounce its obligations under the contract by evincing an intention to no longer be bound by the contract, and/or alternatively, is there evidence that demonstrates that the plaintiff intended to fulfil the contract only in a manner substantially inconsistent with its obligations, and not in any other way? [101] There is no evidence to suggest that the plaintiff refused to arrange the approvals, and there is no evidence to suggest that the plaintiff acted in a way which would point to a conclusion that they ceased or suspended the process of obtaining the approvals before the defendant repudiated the contract.85 [102] On the evidence before the Court, particular Mr Thompson, whilst there were amendments to the plans, the approval process never ceased, and notwithstanding delays, in broad terms, timeframes for the approvals were met. The approval process was ongoing and directed towards obtaining approvals as promptly as possible to enable the construction to continue and reach finality. 84 Plaintiff’s Submissions at [93]. 85 Ibid at [101]. -- 26 of 29 -- 26 [103] I find, therefore, that the plaintiff did not repudiate the contract by reason of its delay in obtaining the Demolition Approval, Plumbing Approval, and Building Approval. Plaintiff’s Loss and Damage [104] Although the defendant made submissions that the plaintiff “was or reasonably should have been aware that the works were going to cost more than originally agreed”,86 this is not pleaded by the defendant in its Defence. It is also not pleaded that the defendant would have completed the Works by 26 June 2016.87 [105] Notwithstanding that these matters were raised in the trial, but not pleaded,88 I am satisfied, on the evidence, given that the contract was for a fixed lump sum, that the plaintiff would have no reason to consider that the Works were going to cost more than originally agreed. [106] The Date for Practical Completion in the contract was 26 June 2016. The date was never extended, and no request to extend the date was ever made. [107] I am satisfied that: (a) The plaintiff’s loss and damage “fairly and reasonably considered naturally arise[s] from” the defendant’s repudiation of the contract;89 (b) The causal link between the defendant’s repudiation of the contract and the plaintiff’s loss and damage was not severed by a novus actus interveniens, other than the additional CJN Constructions works; and (c) The plaintiff’s loss and damage flow, in the usual course of things, from the defendant’s breach. [108] As noted, I accept that the Date for Practical Completion under the contract was 26 June 2016. CJN Constructions achieved practical completion on 20 August 2017, which is the Date for Practical Completion under the contract had it not been granted a 40 day extension of time.90 86 TS1-54. 87 Plaintiff’s Submissions at [105]. 88 Uniform Civil Procedure Rules 1999 (Qld), r. 150(4) – “in a defence…a party must specifically plead a matter that the party alleges makes a claim…of the opposite party not maintainable”. 89 See Knott Investments Pty Ltd & Ors v Fulcher & Ors [2013] QCA 67 at [20]. 90 Plaintiff’s Submissions at [133]. -- 27 of 29 -- 27 [109] As a consequence of the defendant’s repudiation, which I have found was the causal link of the plaintiff’s loss and damage, I am satisfied that the plaintiff is entitled to a sum of $85,656.25 in respect of the increased cost of construction. [110] I reject the defendant’s contention that CJN Constructions carried out additional works, and I note, in particular, that there was no evidence from the plaintiff’s witnesses that there were any additional costs associated with any additional works carried out by CJN Constructions. [111] In those circumstances, I am satisfied that: (a) The plaintiff is entitled to $33,423.15 in respect of additional interest and bank fees charged against the NAB Loan; (b) The plaintiff is entitled to $7,221.52, as set out in Annexure D above, for miscellaneous loss and damage; (c) The plaintiff is entitled to the sum of $17,162.06, as set out in Annexure E above, being in addition to other loss and damage incurred as a consequence of the defendant’s repudiation; (d) The plaintiff is entitled to $15,706.67 in respect of the Macquarie Bank line of finance, as set out in paragraphs [48]-[49] above. [112] I accept the plaintiff’s submission that, because the contract was repudiated prior to the Date for Practical Completion, Clause 26 of the General Conditions of the building contract (with respect to liquidated damages) is irrelevant, and the plaintiff is entitled to be paid damages for loss resulting from the defendant’s repudiation of the contract. [113] Accordingly, I make the following orders: (a) Judgment be entered for the plaintiff; (b) As a result of the defendant’s repudiation of the contract, the defendant pay the plaintiff, by way of loss and damage, the sum of $159,169.69, plus interest and costs; (c) The defendant pay the plaintiff’s costs of and incidental to the proceeding (including reserved costs, if any) to be assessed on the indemnity basis; and -- 28 of 29 -- 28 (d) The defendant pay interest to the plaintiff in the sum of $35,459.96. -- 29 of 29 --