BuildLaw: In Brief continued The Court declined to declare the determination void. The Court said, it has been accepted for a very long time that a cross claim does not have to bear any relationship to the claims put forward by the plaintiff or applicant. While the Court accepted parties were free to agree upon a different regime, in this case the Court did not find any reason to restrict the application of the clause which, plainly read, allowed any… cross-claim to be brought in response to an ‘issue’ referred to the Expert. The Court observed that if parties wished to restrict how a cross claim could be brought under the Contract, they would need to specify that.
Failure to give notice no bar to claim for damages where defects incapable of rectifications In the recent NSW Court of Appeal decision in Visual Building Construction Pty Ltd v Armitstead (No 2) [2019] NSWCA 280, the Court considered whether a contract could be validly terminated without notice if the defects were unable to be remedied. Visual Building Construction Pty Ltd (the Appellant) entered into a contract with Mr David Armistead and Ms Maria-Luisa Patisso (the Respondents) for the construction of two duplex buildings on a block of land in Caddens, NSW. There were delays and defects to the contracted building work. To remedy this, two variations to the contract were agreed to. They detailed the specific requirements for compliance with a rectification order. It came to light that the Appellant had never obtained a Construction Certificate, which was required before building works could commence. Further, the Respondents alleged that the Appellant had failed to complete the works by the date for completion, failed to rectify defective works specified in the variations to the contract, and failed to proceed with due diligence. Because of these failings, the Respondents purported to instantaneously terminate their contract with the Appellant. They commenced proceedings in the District Court seeking damages for breach of contract. At trial, the Appellant argued that the Respondents’ failure to provide the 10-day notice period, which would allow them to remedy any defect, rendered the termination of the contract invalid. The Judge at first instance held that, as it was not possible to remedy the failure to obtain a construction certificate, the Appellant’s argument must fail. Accordingly, damages were awarded to the Respondents. The Appellant appealed this finding to the New South Wales Court of Appeal. They made the same argument and did not challenge the award of damages. The Court unanimously dismissed the