Brewarrina Shire Council v Beckhaus Civil P/L [2005] NSWCA 248

BUILDING AND CONSTRUCTION - defective or incomplete work - no damage for defective or incomplete work sustained while contract is on foot and contractor is required to complete the work - termination by agreement - can be ab initio or release from future performance only - implied term that the parties' rights are governed by provisions in the contract relating to completion despite the termination of it - failure to meet contractual standard - evidentiary onus on contractor to prove the contractual standard has substantially been complied with - breach by contractor - evidentiary onus on contractor to prove no damage suffered - assessment of damages for rectification costs - costs of new work required to achieve conformity with contractual requirements - undertaking of the new work must be reasonable - intention to rebuild or to rectify the work is generally not relevant - suspension of the work to be carried out under a contract - s 27 of the Building and Contruction Industry Security of Payment Act 1999 (NSW) - no suspension if payment under s 15(1)(b) of the Act is conditional upon the payment of a bank guarantee

PRACTICE AND PROCEDURE - appeal proceedings - raising a claim for the first time in the notice of appeal - principles in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 apply

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