Adam Wright v Foresight Constructions Pty Ltd - [2012] HCASL 137

ADAM WRIGHT
v
FORESIGHT CONSTRUCTIONS PTY LTD
[2012] HCASL 137
S404/2011

The applicant contracted with the respondent for the construction of two semi‑detached dwellings. Over the course of construction, a number of variations to the written specifications for the building construction were made but not reduced to writing. The applicant subsequently sought to enforce the original written agreement and commenced proceedings in the Consumer, Trader and Tenancy Tribunal ("the CTTT") to this effect. The proceedings initially involved a second plaintiff, Desiree Wright, who was joined with respect to the respondent's counterclaim for quantum meruit.
On 14 April 2010, the CTTT (G J Durie, Senior Member) found in favour of the applicant on a limited basis. The effect of its orders was to enter judgment for the applicant in the sum of $12,346.21. In a hearing on costs on 17 June 2010, as the applicant had been unsuccessful on a significant part of his claim he was ordered to pay the respondent's costs and incidentals from 16 June 2009 on an indemnity basis. The applicant and second plaintiff appealed to the District Court of New South Wales.
On 18 March 2011, the District Court (Sidis DCJ) dismissed the substantive appeal. Regarding costs, each party was ordered to pay their own costs up to and including 14 June 2009 and the applicant and second plaintiff to pay seven‑eighths of the respondent's costs from 15 June 2009 on an ordinary basis. The applicant applied to the Court of Appeal of the Supreme Court of New South Wales for review of the decision.
On 26 October 2011, the Court of Appeal (Giles and Basten JJA, Handley AJA) dismissed the application for review. The Court held that the oral variations could be raised in defence to a claim for breach of contract, notwithstanding s 10 of the Home Building Act 1989 (NSW). As the applicant agreed to and paid for the work, and the relevant amendments were approved by the local council, their Honours found that there would be no substantial injustice even if an error of law had arisen in the analysis of the District Court. Regarding costs, the Court noted that the second plaintiff was only added as a party in order to claim relief in respect of costs. The costs order of the District Court was varied so as to exclude any liability on the part of the second plaintiff.
The applicant seeks special leave to appeal to this Court against the whole of the judgment of the Court of Appeal. The applicant requires an extension of time. The decision of the Court of Appeal is not attended by sufficient doubt to warrant a grant of special leave in this case, nor are the interests of the proper administration of justice engaged. The extension should be granted but special leave refused.
Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

W.M.C. Gummow
15 August 2012 S.M. Kiefel

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adam Wright v Foresight Constructions Pty Ltd

Details

AGLC: Adam Wright v Foresight Constructions Pty Ltd [2012] HCASL 137
Case: [2012] HCASL 137
Decision Date

CaseChat Overview and Summary

Adam Wright, the applicant, brought an action against Foresight Constructions Pty Ltd, the respondent, seeking enforcement of the original written agreement for the construction of two semi-detached dwellings. The dispute arose due to a series of variations to the written specifications made during construction, which were not documented. The applicant sought to enforce the original agreement and commenced proceedings in the Consumer, Trader and Tenancy Tribunal (CTTT). The CTTT found in favour of the applicant, awarding $12,346.21, but later ordered the applicant to pay the respondent’s costs on an indemnity basis due to partial success. The applicant and a second plaintiff, Desiree Wright, appealed to the District Court, which dismissed the appeal and ordered each party to bear their own costs up to a certain date, with the applicant and second plaintiff paying seven-eighths of the respondent's costs from a later date on an ordinary basis. The applicant further appealed to the Court of Appeal of the Supreme Court of New South Wales, which dismissed the application for review, finding that the oral variations could be raised as a defence and that there would be no substantial injustice if an error of law had occurred. The Court also varied the costs order to exclude the second plaintiff’s liability.

The legal issues before the Court of Appeal were whether the oral variations could be raised in defence to a claim for breach of contract despite section 10 of the Home Building Act 1989 (NSW) and whether the costs order imposed by the District Court was appropriate. The Court of Appeal upheld the District Court’s reasoning that the oral variations were enforceable as the applicant had agreed to and paid for the work, and the local council had approved the relevant amendments. Regarding the costs order, the Court found that the second plaintiff was added as a party solely to claim relief in respect of costs and varied the order accordingly. The Court concluded that the applicant's application for review did not present sufficient doubt to warrant special leave to appeal and that the interests of the proper administration of justice were not engaged.

In light of the Court of Appeal's decision, the applicant sought special leave to appeal to the High Court and requested an extension of time. The High Court found that the decision of the Court of Appeal did not contain sufficient doubt to warrant special leave and that the interests of justice did not require further appeal. The Court granted the extension but refused special leave, directing the Registrar to draw up, sign and seal an order dismissing the application with costs. The final order effectively upheld the Court of Appeal’s decision and costs order, concluding the matter without further appeal.

Orders