Al-Atabi v Zaidi

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.