Where a construction contract is terminated by mutual agreement, the financial settlement between the parties is governed by an implied term incorporating the contractual formula for settling accounts on termination (here, cl 44.6). No damages for defective or incomplete work can be claimed while the contract remains on foot and the contractor is obliged to complete the work. Where a contractor fails to comply with contractual testing requirements, the evidentiary onus shifts to the contractor to demonstrate that the work nonetheless substantially complies with the contractual standard. A payment conditional on the provision of a bank guarantee does not constitute a payment under s 15(1)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW) and does not terminate a lawful suspension of work.
The full text is available to signed-in members, including the 29 later cases that cite this judgment.
2 of the 29 citing cases carry a classified treatment. How each court treated it is available to signed-in members.