Al-Atabi v Zaidi - [2009] NSWCA 433

New South Wales

Court of Appeal

CITATION: Al-Atabi v Zaidi [2009] NSWCA 433

HEARING DATE(S): 13/7/09

JUDGMENT DATE:
23 December 2009

JUDGMENT OF: McColl JA at 1; Handley AJA at 68; Sackville AJA at 69

DECISION: Appeal dismissed with costs.

CATCHWORDS: CONTRACTS – general contractual principles – construction and interpretation of contracts – lump-sum contract in respect of building work – claim for variations – whether work in variations claim part of work covered by lump-sum contract – whether waiver of contractual variations procedure – whether variations subject of implied or express contract

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW)

CATEGORY: Principal judgment

CASES CITED: Al-Atabi v Zaidi [2008] NSWDC 128
Concrete Constructions Group v Litevale Pty Ltd & Ors (No 2) [2003] NSWSC 411
Fox v Percy [2003] HCA 22, (2003) 214 CLR 118
GEC Marconi Systems Pty Limited v BHP Information Technology Pty Limited [2003] FCA 50
Liebe v Molloy [1906] HCA 67; (1906) 4 CLR 347
Smith v Leon Dupuy Dozer Hire [2000] VSC 212
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Trimis v Mina [1999] NSWCA 140

PARTIES: Muhanad Al-Atabi - Appellant
Attia Zaidi - First Respondent
Mohammad Ali Abbas - Second Respondent
Salma Raza - Third Respondent
Hasan Zaidi - Fourth Respondent

FILE NUMBER(S): CA 40305 of 2008

COUNSEL: PT Taylor SC with DS Weinberger for the Appellant
EA White for the Respondents

SOLICITORS: Maccallum Lawyers for the appellant
Dominic Stanfords for the respondents

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1170 of 2007

LOWER COURT JUDICIAL OFFICER: Johnstone DCJ

LOWER COURT DATE OF DECISION: 29 May 2008

LOWER COURT MEDIUM NEUTRAL CITATION: [2008] NSWDC 128

CA 40305/08
DC 1170/07
McCOLL JA
HANDLEY AJA
SACKVILLE AJA

Wednesday 23 December 2009

Muhanad Al-Atabi v Attia Zaidi & Ors

Judgment

1 McCOLL JA: The appellant, Mr Muhanad Al-Atabi, a licensed builder who traded under the business name “Civil Choice”, took proceedings in the District Court seeking payment allegedly due in respect of work he carried out for the first three respondents, Attia Zaidi, Mohammad Ali Abbas and Salma Raza, to construct eight townhouses on property they owned in Mount Druitt. The fourth respondent, Hasan Zaidi, represented the first three respondents in their dealings with the appellant.

2 The central issue at trial was what was the agreed contract price and, in particular, whether the appellant was entitled to amounts he claimed were due in respect of variations. Its resolution turned on which of three documents brought into existence in or around mid 2004 constituted the contract between the parties. The appellant claimed that the contract was a cost plus agreement for $1.1 million. He claimed amounts due for variations to the contract pursuant to two documents, one described as the “Variations Document”, dated 23 January 2006 which enumerated 30 items and claimed $742,092.45, the other entitled “Variation Advice” dated 20 March 2005 in the amount of $98,725.00. He also claimed…

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 Al-Atabi v Zaidi

Details

AGLC: Al-Atabi v Zaidi [2009] NSWCA 433
Case: [2009] NSWCA 433
Decision Date: 23 December 2009

CaseChat Overview and Summary

The appeal concerned a dispute between Al-Atabi (the builder) and Zaidi (the owner) arising from a lump-sum contract for building work. The central issue was whether certain additional work performed by the builder, for which a separate claim was made, was in fact work already covered by the original lump-sum contract. The appeal was heard in the Court of Appeal of New South Wales.

The court was required to determine whether the additional work constituted variations to the original contract, or if it was work that the builder was already obliged to perform under the terms of the lump-sum agreement. Further, the court had to consider whether the owner had waived the contractual procedures for authorising variations, and whether the variations, if they were indeed variations, were the subject of an express or implied contract separate from the original lump-sum agreement.

The Court of Appeal, in dismissing the appeal, found that the work in question was not outside the scope of the original lump-sum contract. The judges applied general principles of contract construction, focusing on the clear terms of the written agreement. They concluded that the builder had not established that the additional work was not included in the original scope, nor had they demonstrated a waiver of the contractual requirements for variations. Consequently, there was no basis for an implied or express contract for variations. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Al-Atabi v Zaidi [2009] NSWCA 433
HEARING DATE(S):	13/7/09
JUDGMENT DATE:	23 December 2009
JUDGMENT OF:	McColl JA at 1; Handley AJA at 68; Sackville AJA at 69
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	CONTRACTS – general contractual principles – construction and interpretation of contracts – lump-sum contract in respect of building work – claim for variations – whether work in variations claim part of work covered by lump-sum contract – whether waiver of contractual variations procedure – whether variations subject of implied or express contract
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Al-Atabi v Zaidi [2008] NSWDC 128 Concrete Constructions Group v Litevale Pty Ltd & Ors (No 2) [2003] NSWSC 411 Fox v Percy [2003] HCA 22, (2003) 214 CLR 118 GEC Marconi Systems Pty Limited v BHP Information Technology Pty Limited [2003] FCA 50 Liebe v Molloy [1906] HCA 67; (1906) 4 CLR 347 Smith v Leon Dupuy Dozer Hire [2000] VSC 212 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Trimis v Mina [1999] NSWCA 140
PARTIES:	Muhanad Al-Atabi - Appellant Attia Zaidi - First Respondent Mohammad Ali Abbas - Second Respondent Salma Raza - Third Respondent Hasan Zaidi - Fourth Respondent
FILE NUMBER(S):	CA 40305 of 2008
COUNSEL:	PT Taylor SC with DS Weinberger for the Appellant EA White for the Respondents
SOLICITORS:	Maccallum Lawyers for the appellant Dominic Stanfords for the respondents
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1170 of 2007
LOWER COURT JUDICIAL OFFICER:	Johnstone DCJ
LOWER COURT DATE OF DECISION:	29 May 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	[2008] NSWDC 128