Australia, Aug. 2 -- New South Wales Land and Environment Court issued text of the following judgement on July 2:

1. On 11 June 2025, Stevenson J delivered judgment in these proceedings: Calibre Construction Group Pty Ltd v Kaloriziko Pty Ltd atf Ryde Combined Unit Trust; Kaloriziko Pty Ltd atf Ryde Combined Unit Trust v Calibre Construction Group Pty Ltd (No 2) [2025] NSWSC 593 (Judgment). These reasons assume familiarity with the Judgment.

2. His Honour made orders disposing of the proceedings on 19 June 2025: Calibre Construction Group Pty Ltd v Kaloriziko Pty Ltd atf Ryde Combined Unit Trust; Kaloriziko Pty Ltd atf Ryde Combined Unit Trust v Calibre Construction Group Pty Ltd (No 3) [2025] NSWSC 646. His Honour gave judgment for the plaintiff against the first defendant for $2,137,430.86 with interest of $568,829.14 under s 101 of the Civil Procedure Act 2005 (NSW) (CP Act) and gave judgment for the first defendant on its cross claim against the plaintiff for $6,513.64 with interest. The balance of the summons, including the plaintiff's claim against the second defendant, and the balance of the cross claim, were dismissed.

3. His Honour's orders did not deal with costs and were without prejudice to the plaintiff's entitlement to apply for contractual interest, which it now seeks.

4. The parties are in dispute as to whether any costs order should be made in the second defendant's favour and the nature of the costs order to be made against the first defendant.

5. It is necessary to draw attention to some aspects of his Honour's reasoning which bear on the exercise of the Court's costs discretion here.

6. The plaintiff's case primarily concerned retention monies of some $1.6 million which, under the terms of the contract between the plaintiff and the first defendant, the first defendant was required to retain on trust for the plaintiff. The plaintiff pursued the retention monies through a breach of trust claim against the first defendant and a knowing assistance claim against its director, the second defendant. It sought an order that the first defendant pay the plaintiff the amount of the retention plus interest and alternatively claimed damages for breach of contract. The plaintiff otherwise claimed from the first defendant $270,000 for unpaid variations and $250,000 for the balance of the contract sum. The first defendant contended that a settlement between the plaintiff and the third and fourth defendants - parties said to have co-ordinate liability to the plaintiff in relation to the plaintiff's claims for the retention monies and variations - had discharged its liability to the plaintiff. It disputed its obligation to pay variations in the sum of $689,922 and sought to recover that sum from the plaintiff in its cross claim, along with liquidated damages for delay and damages for defects.

7. Stevenson J found that the first defendant had not actually set aside a retention fund and as such no trust had been constituted: at [23]. This was consistent with the way the plaintiff pleaded its case, which was that the first defendant was obliged, but failed, to hold a cash retention on trust: at [22]-[23]. As the first defendant accepted, the result of this conclusion was that it was liable in contract to repay the retention to the plaintiff: at [31]. The plaintiff's knowing assistance claim against the second defendant therefore failed: at [32].

8. For reasons which are not presently relevant, the first defendant's defence of discharge of an alleged co-ordinate liability was not established: see [59]-[67]. His Honour found that the plaintiff was entitled to payment for the variations and the first defendant was not entitled to recover any amount from the plaintiff: at [114]. His Honour dismissed the first defendant's claim for liquidated damages: at [161]. The parties agreed that the first defendant was entitled to $6,513.64 for defects; a claim by the first defendant for an additional amount for defects was not pressed: at [165]-[166].

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197c9cbe8b4b1127e3b6eb78)

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