XJS Falls Short: No Liquidated Damages Without a Completion Date

The NSW Court of Appeal has handed down a sharp reminder that contract clauses don’t enforce themselves — and that if you leave key blanks unfilled in a standard form agreement, you may be left with no recourse when things go sideways.

In XJS World Pty Ltd v Central West Civil Pty Ltd [2025] NSWCA 133, a property developer sued its former contractor over delays in civil works on a Bathurst land project, seeking liquidated and general damages. The contractor, Central West Civil, cross-claimed for unpaid variation invoices — and won.

XJS appealed. The Court of Appeal wasn’t persuaded.

🧱 In brief …

🔹 No Completion Date, No Liquidated Damages
XJS relied on a standard-form construction contract that allowed the parties to insert a “Date for Completion” in Part D. They didn’t. The Court held that where parties choose not to activate a key provision (by leaving it blank), they can’t later act as if it were operative.

“The parties had the option of setting a Date for Completion and they chose not to do so… that contractual purpose is not to be undermined by seeking to stretch inapposite words.”

🔹 Delays Not Proven to Be the Contractor’s Fault
XJS alleged delays were CWC’s doing — but failed to provide persuasive evidence to back that claim. The Court reinforced that in construction disputes, you bear the burden of proving not just delay, but culpable delay.

🔹 No Breach of Council Requirements
XJS argued that the contractor failed to meet certain council conditions. The Court found that any issues were technical and minor, and not sufficient to constitute a breach.

🔹 Termination Was Repudiatory
When XJS terminated the contract, it did so without legal entitlement — which made it the party in breach. The trial judge’s conclusion that this amounted to repudiation was upheld.

🧠 Key Takeaways

If you’re using standard form construction contracts:

• Don’t leave blanks you plan to enforce later. If it’s not filled in, it may not apply.

• Document delay causes precisely — especially when multiple contractors are involved.

• Termination without cause is dangerous. Even in commercial stand-offs, you need a firm contractual footing to walk away.

In the end, XJS World discovered that skipping a few contract fields can cost a lot more than time — it can cost the whole case.