Al-Atabi v Zaidi - [2008] NSWDC 128

CITATION: Al-Atabi v Zaidi [2008] NSWDC 128

HEARING DATE(S): 29, 30 and 31 January, 1 February and 28 March 2008

JUDGMENT DATE:
29 May 2008

JURISDICTION: District Court Civil Jurisdictio

JUDGMENT OF: Johnstone DCJ at 1

DECISION: 1. Judgment for the plaintiff against the 1st, 2nd and 3rd defendants for $4,920.33
2. Judgment for the 4th defendant against the plaintiff
3. Judgment for the plaintiff against the defendants on the Cross-Claim

CATCHWORDS: CONSTRUCTION – competing contract documents - ascertaining the common contractual intention of the parties - finding that the applicable contract was a lump-sum contract - variations claimed on the basis of waiver of the procedure required under the contract - other allegations of estoppel, quantum meruit and misrepresentation considered

LEGISLATION CITED: Civil Procedure Act 2005: s 100
Fair Trading Act 1987: s 44

CASES CITED: Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61
Gardiner v Agricultural and Rural Finance Pty Ltd [2007] NSWCA 235 at [11] – [13]
Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR [97326]
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd [2008] NSWCA 5
Liebe v Molloy (1906) 4 CLR 347
Lion Nathan Australia Pty Ltd v Coopers Brewery Limited (2006) 223 ALR 560
Ormwave Pty Limited v Smith [2007] NSWCA 210 at [68]
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 at [22]
Peppers Hotel Management Pty Ltd v Hotel Capital Partners Ltd [2004] NSWCA 114 at [69]
Source and Resources Pty Ltd v Porada [2007] NSWSC 883 at [27]
The Commonwealth v Verwayen (1990) 170 CLR 394
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 at [40] and [42]
Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251

PARTIES: Muhanad Al-Atabi (Plaintiff)
Attia Zaidi (First Defendant)
Mohammad Ali Abbas (Second Defendant)
Salma Raza (Third Defendant)
Hasan Zaidi (Fourth Defendant)

FILE NUMBER(S): 1170/07

COUNSEL: Mr Weinberger (Plaintiff)
Mr E White (Defendants)

SOLICITORS: Maccallum Lawyers (Plaintiff)
Dominic Stamfords (Defendants)

JUDGMENT

The proceedings and the issues
1. During 2004 Mr Al-Atabi, a licensed builder trading under the business name ‘Civil Choice’, constructed 8 two-storey residential townhouses for the defendants on their property at 6 Methven Street, Mount Druitt. He alleged that he had not been paid in full for that construction work. He commenced these proceedings claiming payment on various bases including contract, quantum meruit and misrepresentation. The defendants alleged that the construction work was never fully or properly completed, and that they have paid to Mr Al-Atabi his full entitlement under the relevant construction contract, and more.

2. It was not disputed by the parties that the construction work was performed pursuant to a construction contract entered into between them that was negotiated between Mr Al-Atabi and the fourth defendant, Mr Hasan Zaidi, on behalf of the defendants. It was also common ground that the parties brought three contractual documents into existence at or around mid 2004, but the parties fundamentally disagreed as…

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.

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Details

Case: [2008] NSWDC 128
Decision Date: 29 May 2008

CaseChat Overview and Summary

The plaintiff, Al-Atabi, brought an action against the defendants Zaidi and others, seeking to recover monies owing for building works performed on a property. The dispute arose from a contract to build a residence, with the plaintiff claiming additional costs due to variations and other issues. The Federal Circuit and Family Court of Australia heard the case. The primary issues before the court involved the interpretation of the contract documents and the application of specific contractual procedures, as well as claims of estoppel, quantum meruit and misrepresentation.

The court examined whether the contract was a lump-sum agreement and considered whether the defendants waived the contractual procedures for claiming variations. The court found that the contract was indeed a lump-sum agreement, meaning that the plaintiff was not entitled to additional payments for variations unless they were explicitly agreed upon by the parties. The court also concluded that the defendants did not waive the contractual procedures, and therefore the plaintiff's claims for variations based on waiver were unsuccessful. Furthermore, the court dismissed the plaintiff's claims of estoppel, quantum meruit and misrepresentation as they were not supported by the evidence presented.

The court ruled in favour of the plaintiff against the first, second and third defendants, awarding the plaintiff $4,920.33. The court also ruled in favour of the fourth defendant against the plaintiff, dismissing the plaintiff's claims against them. Additionally, the court ruled in favour of the plaintiff against the defendants on the cross-claim, finding that the plaintiff was entitled to the specified amount from the first, second and third defendants.

Orders

Orders of the court

1. Judgment for the plaintiff against the 1st, 2nd and 3rd defendants for $4,920.33 2. Judgment for the 4th defendant against the plaintiff 3. Judgment for the plaintiff against the defendants on the Cross-Claim

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Al-Atabi v Zaidi [2008] NSWDC 128
HEARING DATE(S):	29, 30 and 31 January, 1 February and 28 March 2008
JUDGMENT DATE:	29 May 2008
JURISDICTION:	District Court Civil Jurisdictio
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	1. Judgment for the plaintiff against the 1st, 2nd and 3rd defendants for $4,920.33 2. Judgment for the 4th defendant against the plaintiff 3. Judgment for the plaintiff against the defendants on the Cross-Claim
CATCHWORDS:	CONSTRUCTION – competing contract documents - ascertaining the common contractual intention of the parties - finding that the applicable contract was a lump-sum contract - variations claimed on the basis of waiver of the procedure required under the contract - other allegations of estoppel, quantum meruit and misrepresentation considered
LEGISLATION CITED:	Civil Procedure Act 2005: s 100 Fair Trading Act 1987: s 44
CASES CITED:	Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61 Gardiner v Agricultural and Rural Finance Pty Ltd [2007] NSWCA 235 at [11] – [13] Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR [97326] Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd [2008] NSWCA 5 Liebe v Molloy (1906) 4 CLR 347 Lion Nathan Australia Pty Ltd v Coopers Brewery Limited (2006) 223 ALR 560 Ormwave Pty Limited v Smith [2007] NSWCA 210 at [68] Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 at [22] Peppers Hotel Management Pty Ltd v Hotel Capital Partners Ltd [2004] NSWCA 114 at [69] Source and Resources Pty Ltd v Porada [2007] NSWSC 883 at [27] The Commonwealth v Verwayen (1990) 170 CLR 394 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 at [40] and [42] Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251
PARTIES:	Muhanad Al-Atabi (Plaintiff) Attia Zaidi (First Defendant) Mohammad Ali Abbas (Second Defendant) Salma Raza (Third Defendant) Hasan Zaidi (Fourth Defendant)
FILE NUMBER(S):	1170/07
COUNSEL:	Mr Weinberger (Plaintiff) Mr E White (Defendants)
SOLICITORS:	Maccallum Lawyers (Plaintiff) Dominic Stamfords (Defendants)