[2023] NSWSC 944

Ganghui Pty Ltd v YTO Construction Pty Ltd (No 2)

Judgment for plaintiff against defendant for $2,748,842.60; orders for interest and costs

Catchwords

JUDGMENTS AND ORDERS – reasons – orders necessary to give effect to principal judgment

Cases cited

Ganghui Pty Ltd v YTO Construction Pty Ltd[2023] NSWSC 729

Legislation cited

Building and Construction Industry Security of Payment Act 1999

Judgment

[1]
I published my principal judgment in this matter on 28 June 2023. [1] I shall use the same abbreviations here.
[2]
I concluded the judgment by saying:
[3]
The parties agreed on a timetable to make such submissions.
[4]
Subject to what I say below, it was common ground that it followed from my reasons that:
[5]
The Developer also claims interest on the judgment at [4(a)] above. That judgment is based on the Developer’s entitlements under the Handwritten Agreement of 22 March 2019. The Developer claims interest from that date. I return to this below.
[6]
The Builder raises three matters which it contends must be resolved before final orders can be made.
[7]
The first relates to an aspect of the Builder’s claim for a quantum meruit.
[8]
At [281] of the judgment I said, in relation to the Builder’s claim under the Further Arrangement:
[9]
The Builder now submits that it did plead a quantum meruit in relation to the Further Arrangement and pointed to par [12] of its Amended List Response. In that paragraph, the Builder referred to the Handwritten Agreement and asserted that the agreement referred to in that document “was contingent and conditional upon a proper assessment of claims made by the [Builder] on the merits of those claims on a ‘quantum meruit basis’”, and that the Developer had “failed to assess and determine the [Builder’s] claims on the merits of those claims and on a ‘quantum meruit’ basis’”.
[10]
But those contentions do not relate to the Builder’s alleged entitlement under the Further Agreement. The fact remains, as I have found, that in its Cross-Claim, and in relation to the Further Arrangement, the Builder did not make a claim for a quantum meruit but only made a claim for the variations. The matters in [12] of the Builder’s Response related to a different matter: the Handwritten Agreement.
[11]
The Builder also referred to [318] of the judgment in which I said, in relation to the Builder’s claim for a variation arising out of the changes in the scope and additional depth of the shoring piles:
[12]
The Builder submitted that the “following paragraphs” of my reasons established that the Builder had provided evidence that the work was not within scope. I can see nothing in those “following paragraphs” that has that effect. The following paragraphs dealt with a different variation, relating to a different aspect of the shoring piles.
[13]
Finally, the Builder referred to [328] of my judgment in which I said that my attention had not been directed to any evidence to establish any of the matters the subject of the reservations of Mr Seeto that I set out at [327] of the judgment. The Builder drew attention to identified paragraphs in the Builder’s quantum submissions. I have again looked at those paragraphs but do not consider that they take the matter any further. They do not relate to the matter the subject of Mr Seeto’s reservations.
[14]
In apparent response to the Developer’s claim for interest on the amount it is entitled to recover under the Handwritten Agreement, the Builder contended in its reply submissions that because:
1. (1)
  I found that the Final Payment Certificate purportedly issued under cl 37.4(b) of the Contract was not, as a matter of contract, effective; and
2. (2)
  the parties had agreed that the Builder’s Final Payment Claim and the Developer’s purported Final Payment Certificate were also a “payment claim” and “payment schedule” for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”),
[15]
The Builder made no such contention in its List Response or Cross-Claim List Statement, nor during the course of the hearing.
[16]
In any event, as the Developer submitted:
1. (1)
  it does not follow from the fact that the Final Payment Certificate was not effective as a matter of contract, that it was ineffective as a payment schedule under the Act;
2. (2)
  no statutory debt under the Act can now arise as I have fully determined the question of the variations that the Builder claimed in its payment claim; and
3. (3)
  no such statutory debt could now “revive” in circumstances where I have, as a matter of finality, determined what the amount is due to the Builder for variations.
[17]
The Builder offered no other submission in response to the Developer’s claim for interest.
[18]
Accordingly, earlier today, I made the following orders to dispose of these proceedings: