Utmost care should be taken when you (as a builder say, or an engineer, or an architect) want to bring contractual claims for damages or unpaid fees, as against other contractors, clients, or home owners.

Firstly, as we have already mentioned several times on these pages, it is extremely important that any contractual claims (or for that matter, any defence) is correctly and logically pleaded (i.e. drafted properly), otherwise the claimant builder, engineer or other professional (professional) may face significant challenges in proving the claim effectively.

A summary dismissal application may well be avoided that way. In addition to the avoidance of a possible summary dismissal, the professional, having pleaded their case meticulously, may not have to face the prospect of an expensive final hearing in which the professional loses, and worse yet, pays the costs of the defendants.

In fact, if a claim is badly pleaded, then it may require amendment after amendment, even during, or very close to the end of the trial or the final hearing. This may mean that even if the claim succeeds, there are no guarantees that costs will not be payable to the other side!

Pleadings in these kinds of cases will need to depend heavily on underlying cogent evidence and that evidence in turn, needs to be well founded on the proper pleading of material facts.

One does not need ‘full blown’ final evidence to plead the claim initially, but the material facts on which the case relies, must be there in pleadings, and in our humble opinion, these must ‘prove’ the case at least, on its face.

For example, when an engineering company brings a claim against a client whom it alleges has not paid (or underpaid) for delivered machinery and or the accompanying work, it needs to ensure that the machinery and the work that went along with it, was not defective in some way.

If there were defects, this effectively means that the claimant actually breached the contract itself and would be liable to be sued in a cross-claim. E.g. see Buildom Pty Ltd v Rawson Constructions NSW Pty Ltd & Ors; Buildom Pty Ltd v Everton Constructions NSW Pty Ltd & Anor [2025] NSWSC 1608. In this particular case, a builder brought a claim for fees outstanding in relation to the supply of ‘bathroom pods’ which were actually defective. The builder accepted that there were defects and yet continued to press its claim for ballooned sum which later had to be reduced.

The Court referred to the state of the pleadings as ‘fluid’ (at paragraph 3 of the case) given the difficulties that the plaintiff faced in the course of this case.

In general, the claimant will also need to show all that it did, in order to ‘mitigate’ (or to reduce) its alleged losses. This is very important and it needs to be clearly set-out.

Coming back to evidence, it must also be remembered that any damages in any such claim, need to be squarely based on adequate and proper evidence including expert reports which show that, for example, the work performed by the professional, or the product delivered were proper and adequate, and fit for purpose.

The moral of this particular story is that you as a professional, need to be very careful before you bring any contractual claim. There are many potential traps (including hefty costs) and you will need proper and grounded advice before you take the important initiating step.

At Papallo Kouchoo Lawyers, we analyse every aspect of your case very carefully, to ensure that ‘no stone is left unturned’, so that we can then conduct the proceedings smoothly and with confidence, by for example, first ensuring that you bring the proceedings ‘with clean hands’ and that the pleadings of your case do actual justice to your claim.

In our practice we do our utmost to uphold your rights and to ensure that your contractual rights are safeguarded.

If you have any questions, please do not hesitate to contact us for an obligation free professional consultation.