Australia, July 18 -- New South Wales Land and Environment Court issued text of the following judgement on June 17:

1. In December 2021, Buildcorp Group Pty Ltd agreed to provide work pursuant to a "design and build contract" for the Owners of Strata Plan 125, which is located at Blues Point Tower in McMahons Point, New South Wales.

2. The Owners sought primarily the replacement of all the building's external windows and doors, which had reached the end of their working life. The heritage status of the building meant that the facade (significantly comprising masonry walls and sills below the windows) had to be replaced with "like" materials.

3. On 8 March 2021, the Owners' agent invited Buildcorp to tender for the "Heritage Facade Maintenance works". The Owners provided Buildcorp with various reference documents, including the Council's approval for the works and various reports by consultants dated between 2018 and 2021, detailing the Owners' lengthy investigation into the defects in the facade and their rectification.

4. Buildcorp won the tender. It has since completed all the remediation work required by the Owners and has been paid the contract sum. In completing the work, Buildcorp carried out some strengthening work to windowsills with brackets and by way of steel beams. It claimed those works were not included in the contract sum and instead fell within Special Condition in item 2 of Annexure Part G of the contract ("Clarifications and Exclusions"), and entitled it to be paid for the "variation" works. That clause provides (emphasis added):

The parties agree that [the Owners'] project requirements is subject to the following clarifications and exclusions:

...

[Buildcorp] is not required to modify or rectify building elements not expressly detailed within the [request for quote] RFQ documents. [Buildcorp] will be entitled to payment from the [Owners] for certifying or modifying any such elements in order to complete the WUC [work under contract], by instruction of a variation.

5. Buildcorp gave the Owners two "variation claims" (HCV006 and HCV007), which were rejected by the Owners. This led to the dispute.

6. The Owners said Buildcorp's summons ought to be dismissed either because:

1) There is no utility in making the declaration that Buildcorp seeks, namely that Buildcorp is "entitled to instruction of a variation" in respect of the work, because Buildcorp did not comply with the contractual machinery concerning variations and disputes; and/or

2) The "variation works" were always part of the scope of Buildcorp's work under the contract and the special condition did not apply.

7. The main issue is whether, on the proper construction of the contract, the disputed works fell within the contracted works, the subject of the lump sum contract. It is therefore necessary to determine:

1) The proper construction of the special condition, and in particular, the meaning of "building elements" and "expressly detailed"; and

2) Whether the particular variation works were building elements that had not been expressly detailed in the RFQ documents, such that the completion of those works entitled Buildcorp to additional payment.

8. For the reasons that follow, I consider Buildcorp is entitled to further payment for the variations claims.

9. In reaching that decision, I have relied upon the evidence, as well as written and oral submissions made before and during the trial. However, I note that without seeking or obtaining leave, the parties agreed among themselves to provide to chambers additional submissions after judgment was reserved. I have ignored them for the reasons explained in authorities recently summarised by Rees J in Madsen v Darmali (No 3) [2024] NSWSC 582 at [6]:

The High Court has "deprecated in strong terms" litigants who submit submissions after the conclusion of a hearing, either without leave or beyond the leave granted, observing that this practice is "misconceived", "unsatisfactory" and "impermissible": Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 258 (per Mason J); NT Power Generation [Pty Ltd v Power and Water Authority (2004) 219 CLR 90] at 159, [192]; Bale v Mills [(2011) 81 NSWLR 498] at [57]. Nor does it matter if the parties agree among themselves to put on further submissions; the parties have no right to place further material before the Court after the hearing has concluded, absent leave: "... it is wrong. It undermines and derogates from the principle of the open administration of justice": Bale v Mills at [59].

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196eb2b34e0ab4afac23da94)

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