Calibre Construction Group Pty Ltd v Kaloriziko Pty Ltd atf Ryde Combined Unit Trust; Kaloriziko Pty Ltd atf Ryde Combined Unit Trust v Calibre Construction Group Pty Ltd (No 3)

I gave judgment in this matter on 11 June 2025. [1] I shall use the same abbreviations here.

No orders have yet been made to give effect to the judgment.

Both parties now draw my attention to matters in the judgment that are said to require further consideration.

I have jurisdiction to make corrections to my judgment if it is apparent that I have proceeded:

The above principles were discussed by Black J In the matter of Boart Longyear (No 4). [3]

The Builder draws my attention to my conclusions concerning the Developer's claim for Delay at J146-161. I found that the parties had agreed that the "original contracted completion date" was 23 May 2020. It is common ground that, in the events that have happened, the consequence of this finding is that the Developer's claim for liquidated damaged should be dismissed; rather than be confined to an identified period, as I incorrectly held at J161.

I will make the appropriate corrections to the judgment.

The Developer seeks to raise matters concerning its claim, arising from the Deed, that parties sharing with the Developer a co-ordinate liability to the Builder in relation to the Builder's claims concerning the Retention and Variations, had discharged that co-ordinate liability. I dealt with that at J36-J82.

The developer draws attention to my findings at J56-J58:

As to those matters, the Developer seeks to recall:

In relation to that matter on this application the Developer submitted:

That submission must be seen in the light of this passage from the developer's closing submissions at trial:

At J57 and J58 I intended to deal with the Developer's case that the mortgagors of the Mortgages had a co-ordinate liability with it, the Developer, to the Builder.

On reflection, to make that matter clear I should have added the words “and the Developer” at the end of J57 and after the word “They” in the last sentence of J58.

I will make that correction.

This does not affect the outcome of the proceeding. That is because I concluded that the evidence did not enable me to conclude, in the events that have happened, to what extent the effect of the Deed had discharged that co-ordinate liability; see especially J67 and J81.

The Developer also draws attention to J61 and in particular J61(3):

The Developer submitted:

In that submission the Developer referred to paragraph 25 of its closing submissions:

I cannot see how it follows from those matters that my statement of J61(3) is not correct. I have set out what I understood the Developer's case to be.

Finally, the Developer draws attention to what I said at J64-J67:

As to that, the Developer seeks to recall:

In relation to that matter, the Developer submitted:

That is how the Developer put its case. But as I set out at J64-J67 that overlooked the question of the value of the Litigation Liability referred to in the Deed.

It is true that these matters were not raised by the Builder.

However, I raised the matter with the parties.

I did so with Mr Ashhurst at T1 27.24. I said:

Further, and perhaps more importantly, on 27 May 2025 after the conclusion of submissions, my Tipstaff sent the parties an email:

My Tipstaff received the following reply from the Developer:

My Tipstaff's communications made clear the question that was troubling me. I afforded the parties the opportunity to make submissions about the value of the Litigation Liability, to which attention has been drawn. They did so.

I do not propose further to consider the matter.

I make orders in accordance with paragraphs 1-6 and 10 [4] of the Short Minutes of Order:

These orders do not deal with the question of the costs of the proceedings. It is anticipated that the parties will send competing submissions to the List Judge on that question and invite her Honour to deal with that question on the papers.

It is common ground that the making of these orders is without prejudice to the Builder’s entitlement to make an application to the List Judge for an alternative calculation of interest to judgment, being an application that such interest be paid at a rate specified in the building contract rather than the Civil Procedure Act 2005 (NSW).