In Kaloriziko Pty Ltd as trustee for Ryde Combined Unit Trust v Calibre Construction Group Pty Ltd (No 2) [2025] NSWCA 259, the Court (Adamson JA, Mitchelmore and Kirk JJA agreeing) upheld Kaloriziko's appeal and reduced the quantum of a judgment against it by $3.24m based on findings that CCG was not entitled to payment for approved variations that properly fell within the WUC, that there was insufficient basis to conclude that the parties had agreed to change the Date for PC, and that CCG was required to give credit for benefits obtained under a deed of release concerning coordinate liabilities.
Kaloriziko engaged CCG under a D&C contract for an apartment complex in Ryde. CCG commenced proceedings for underpayments and unpaid variation work. Kaloriziko contended damages should be reduced for payments made for not true variations, LDs, and the benefit CCG received under a deed of settlement resolving CCG's claims against other parties said to have co-ordinate liability with Kaloriziko. The primary judge ultimately awarded CCG $2.14m plus $569k in interest. Kaloriziko appealed.
Kaloriziko claimed that the primary judge erred in rejecting Kaloriziko's claim for a credit for its payments to CCG for "variations" that actually fell within WUC. Approval of a variation cannot transform a non-variation into a variation and could not vary WUC under the terms of the contract. Even if the approval was an implied admission, this was only evidence that could be displaced by showing it was incorrectly made. CCG had no right to be paid for work that was part of the WUC in any event, and any erroneous payment could be undone as the contract provided that payments were on account only. Accordingly, the claim was made out (in part) and Kaloriziko was entitled to credit.
Kaloriziko also claimed that the primary judge erred in finding that the date for PC has been varied separately from the total period for which EOTs had been granted. The Court considered three hypotheses for the variation to the date for PC but ultimately found that none were supported by evidence so the choice between them was "conjectural and speculative" and thus insufficient to form the basis for a positive inference. Ultimately this meant that the primary judge's finding was erroneous and resulted in a further reduction of the judgment sum.
Kaloriziko claimed that the primary judge erred in finding that he could not assess whether the deed discharged any coordinate liability of the developer and resulted in a reduction of damages. The Court set out and applied the relevant principles, ultimately finding that Kaloriziko's liability ought to have been reduced by an amount equal to the full value of the releases obtained. After considering the evidence, the Court concluded this to be $2.9m.