On Friday, 4 April 2025, the Supreme Court of NSW (Stevenson J) delivered judgment in Andrews & Andrews Construction Pty Ltd v Yao; Yao v Andrews & Andrews Construction Pty Ltd [2025] NSWSC 322, in which Andre Zahra SC and Nicole Maddocks appeared (instructed by Chris Freeman of Christopher C Freeman & Co) for the successful plaintiff/cross-defendant, Andrews & Andrews Construction Pty Ltd.

The case concerned a construction dispute in relation to a high quality residential development and in which the defendants/owners sought to avoid payment for part of the works. The judgment considered the proper construction of the building contract and, in particular, a special condition which obliged the parties to cooperate to obtain the most competitive price for works to be undertaken and for a minimum of two quotations to be obtained for each item of work. The defendants/cross-claimants argued that the plaintiff had breached the special condition by failing to obtain two quotations for each item and that they were entitled to damages/set-off against the amount owing to the plaintiff. The defendants/cross-claimants also sought to invoke the “facilitation principle” to assist them in seeking to prove their alleged loss, relying on the High Court’s recent judgment in Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17.

Stevenson J found that, on the proper construction of the special condition, the obligation to obtain two quotations was a joint obligation on all parties, not amenable to suit by one against the other, and that the special condition was merely exhortatory rather than a promissory condition which could be enforced by damages. His Honour otherwise concluded that the defendants/cross-claimants’ attempt to rely upon the facilitation principle (had the Court found that the special condition was breached – which it did not) could not be justified in the circumstances, which included the defendants belatedly first seeking to invoke it in opening submissions made shortly prior to the commencement of the hearing, despite the proceedings having been on foot for a number of years. His Honour concluded that the plaintiff was entitled to judgment for the full amount claimed, together with interest and costs.

See the full judgment here.