Cappello v Hammond & Simonds NSW Pty Ltd

[2021] NSWCA 57

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Building contracts
3. › Cost plus contract
4. › Progress claims
5. › Conditions precedent
6. › Whether compliance with contractual requirements for details and supporting documents was a condition precedent to entitlement to payment
7. › Whether non-compliance raised for first time on appeal
1. Practice and Procedure
2. › Pleadings
3. › Conditions precedent
4. › Implied allegation that all conditions precedent satisfied
5. › Obligation on defendant to identify with specificity non-satisfaction of condition precedent
6. › History of rules
7. › Consequences of failure to comply
8. › Uniform Civil Procedure Rules 2005 (NSW), rr 14.11, 14.14
1. Appeal
2. › New points on appeal
3. › Whether point available on appeal where evidence could have been given to meet it at trial
4. › Whether appellants should be permitted to raise non-compliance with conditions precedent for first time on appeal
1. Contract
2. › Building contracts
3. › Defective work
4. › Damages
5. › Whether owner entitled to recover cost of remedial work instructed by owner but necessitated by builder's breach

Quick Take

A defendant who fails to specifically plead non-compliance with contractual conditions precedent (such as requirements for supporting documentation with progress claims) will not be permitted to raise the point for the first time on appeal, and owners claiming delay damages for diminution in property value must establish the property was a marketable commodity and there was at least a real intention to sell.