Adam Wright v Foresight Constructions Pty Ltd

[2012] HCASL 137

ADAM WRIGHT

v

FORESIGHT CONSTRUCTIONS PTY LTD

[2012] HCASL 137
S404/2011

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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