The Court held that a settlement deed resolving a SOPA payment claim was a 'construction contract' under the Building and Construction Industry Security of Payment Act 1999 (NSW) because it provided for payment in exchange for undertaking construction work, but that a lump sum settlement payment of $300,000 was not a 'progress payment' because it was payable independently of the stage of construction work and thus did not attract the statutory right of suspension. On the implied duty of good faith, the Court acknowledged the doctrinal uncertainty but found that even if such a term were implied, PBC had not acted unreasonably in insisting on maintaining caveats over all lots, and Tresedar failed to prove causation of loss. The Court refused a late amendment to plead unconscionable conduct on the first day of hearing, applying Aon Risk Services principles, where the amendment raised significant new factual issues without explanation for delay and the pleading did not properly identify the requisite elements of unconscionability.
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