Australia, July 10 -- New South Wales Land and Environment Court issued text of the following judgement on June 11:

1. On 30 November 2017, the plaintiff, Calibre Construction Group Pty Ltd (the "Builder") entered a Design and Construct Contract (the "Contract") with the first defendant, Kaloriziko Pty Ltd (the "Developer"). The Contract was constituted by a Formal Instrument of Agreement, General Conditions in the AS 4902-2000 format and ancillary documents.

2. By the Contract, the Builder agreed to design and construct, on land owned by the Developer in Ryde, a multi-storey, mixed use residential and commercial development comprising 4 towers and some 100 units (the "Development"). The Development was called "Sky Gardens". The contract sum was $31 million plus the cost of "Excluded Items". [1]

3. The Contract provided for the Developer to retain 5% of the contract sum (the "Retention") as security, [2] and for the Retention to be paid to the Builder over a period of 12 months after the issue of a certificate of practical completion. [3] That certificate was issued on 15 September 2020. The Contract provided that the Retention was to be "held in trust" by the Developer for the Builder until such time as either became entitled to the retained funds. [4]

4. The Builder claims some $1.6 million plus interest from the Developer in relation to the Retention.

5. The Builder also claims from the Developer some $270,000 for unpaid variations and some $250,000 for the balance of the contract sum. A question of construction of the Contract arises in relation to the Builder's claim for variations.

6. The Developer disputes the Builder's entitlement to variations and, by its Cross Claim List Statement, seeks to recover amounts paid for variations and claims damages for delay and defective work.

7. The Builder also sought to recover the Retention from the second defendant, Mr Camile Chanine, and the third defendant, Mr Eddie Tran; the directors and shareholders of the Developer. That claim is based on Mr Chanine's and Mr Tran's alleged knowing involvement in the Developer's breach of the trust said to have arisen in relation to the Retention.

8. The Builder maintains that claim against Mr Chanine, but has settled its claim against Mr Tran.

9. The Builder has also settled its claim against the fourth defendant, Ninth Campsie Pty Ltd; a company controlled by Mr Tran's daughter, Ms Hillary Tran. That claim was made under s 37A of the Conveyancing Act 1919 (NSW) alleging that the transfer to it by the Developer of a unit in the Development was made with intent to defraud creditors and voidable at the Builder's instance.

10. That settlement was achieved by a Deed of Agreement and Set Off dated 8 February 2024 (the "Deed"). Pursuant to the Deed, a company associated with Ms Tran, Apolo Apartments Pty Ltd, agreed to transfer three adjoining residential lots in Arncliffe (the "Arncliffe Properties") owned by Apolo to Aerial Holdings Pty Ltd, a company associated with the wife of the director of the Builder, Mr Ali Mohanna, for $5 million. The Developer contends that sale was at an undervalue in the order of $2.9 million and the effect of the Deed was to discharge any liability owed by it, and by Mr Chanine, to the Builder.

11. That is, the Developer contends that the Deed is a complete answer to the Builder's claim.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197583d0cb2712d6f2b7149f)

Disclaimer: Curated by HT Syndication.