Built Interiors Pty Ltd v Three Dinosaurs Pty Ltd - [2003] NSWCA 290

CITATION: BUILT INTERIORS PTY LTD v THREE DINOSAURS PTY LTD & ANOR [2003] NSWCA 290

HEARING DATE(S): 12, 13 August 2003

JUDGMENT DATE:
3 October 2003

JUDGMENT OF: Mason P at 1; Meagher JA at 82; Ipp JA at 83

DECISION: Appeal dismissed with costs.

CATCHWORDS: Building contracts - contractual and restitutionary claims for variations - contractual procedures for claiming variations not followed - work involved was part and parcel of contract work - Jones v Dunkel - architect not called or his absence explained at trial - witness was available to either party - fresh evidence sought to be tendered on appeal was available at trial and not likely to affect result of appeal - evidence rejected - implied term for acceleration costs not available on facts (ND)

PARTIES :
BUILT INTERIORS PTY LTD v THREE DINOSAURS PTY LTD & ANOR

FILE NUMBER(S): CA 41061/02

COUNSEL: Appellant: D A Doyle (Sol) / J Cheung (Sol) /
M Michael (Sol)
Respondent: E Olsson

SOLICITORS: Appellant: The Builders' Lawyer
Respondent: E H Tebbutt & Sons

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 8523/00

LOWER COURT
JUDICIAL OFFICER : Patten DCJ

CA 41061 of 2002
DC 8523 of 2000

MASON P
MEAGHER JA
IPP JA

Friday 3 October 2003

BUILT INTERIORS PTY LTD v THREE DINOSAURS PTY LTD & Anor

JUDGMENT

1 MASON P: The appellant (hereafter the Builder) contracted with the respondents (hereafter the Proprietors) to redevelop a site at Strawberry Hills. The work consisted of interior alterations and fit-out of an art gallery, photographic studio, workshop, offices and showroom.

2 The Proprietors had retained an Architect, the firm of Engelen Moore (the Architect). A principal of that firm, Mr Ian Moore had the ultimate oversight of the project, but it was an assistant architect Ms Meller who was the nominated project architect.

3 The formal contract was executed on 25 August 1998 in the form of the Lump Sum Contract for Simple Building Works Edition 2. That Contract contains standard terms and incorporates plans and specifications.

4 The contract price was $616,143. Possession was to be given by 31 August 1998 with practical completion to occur by 23 November 1998. The time frame was tight. Hard negotiations had seen some last minute modifications to the contract works and reduction in the lump sum.

5 The Contract provided for the Builder to submit progress claims for payment to the Architect every two weeks. Progress certificates were to be issued within five days of receipt. Unlike some building contracts, the Contract did not stipulate that progress claims were deemed accepted if they were not rejected.

6 “Variations” were defined in cl 1.2 as:

Any of the following:

Increases or decreases in or omissions from the Works.

Changes in the character or quality of any material or work.

Changes in the levels, lines, positions or dimensions of any part of the Works.

Execution of additional work.

New fees or charges, increases or decreases in fees or charges referred to in…

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: [2003] NSWCA 290
Decision Date: 3 October 2003

CaseChat Overview and Summary

Built Interiors Pty Ltd (the appellant) brought proceedings against Three Dinosaurs Pty Ltd (the respondent) concerning claims for payment for variations to building works. The dispute concerned whether the appellant was entitled to payment for work undertaken, either under the contract or in restitution, despite failing to follow the contractual procedures for claiming variations. The appeal was heard by Mason P, Meagher and Ipp JJA in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were: (1) whether the work performed by the appellant constituted variations to the original building contract, and if so, whether the appellant could recover payment for this work despite not adhering to the contractual variation procedures; (2) whether the appellant was entitled to payment on a quantum meruit basis; and (3) whether there was an implied term in the contract entitling the appellant to costs for acceleration of the works. The court also considered an application to adduce fresh evidence on appeal.

The Court of Appeal held that the work in question was part and parcel of the original contract works and did not constitute variations. Consequently, the appellant could not claim payment for these works as variations, nor could it claim on a quantum meruit basis, as the work was performed under the existing contract. The court applied the principle from *Jones v Dunkel* regarding the drawing of inferences from the absence of a witness, noting that the architect, who was available to either party, was not called by the appellant. Furthermore, the court rejected the application to adduce fresh evidence on appeal, finding that it was available at trial and unlikely to affect the outcome. The claim for acceleration costs was also dismissed.

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

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	BUILT INTERIORS PTY LTD v THREE DINOSAURS PTY LTD & ANOR [2003] NSWCA 290
HEARING DATE(S):	12, 13 August 2003
JUDGMENT DATE:	3 October 2003
JUDGMENT OF:	Mason P at 1; Meagher JA at 82; Ipp JA at 83
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	Building contracts - contractual and restitutionary claims for variations - contractual procedures for claiming variations not followed - work involved was part and parcel of contract work - Jones v Dunkel - architect not called or his absence explained at trial - witness was available to either party - fresh evidence sought to be tendered on appeal was available at trial and not likely to affect result of appeal - evidence rejected - implied term for acceleration costs not available on facts (ND)
PARTIES :	BUILT INTERIORS PTY LTD v THREE DINOSAURS PTY LTD & ANOR
FILE NUMBER(S):	CA 41061/02
COUNSEL:	Appellant: D A Doyle (Sol) / J Cheung (Sol) / M Michael (Sol) Respondent: E Olsson
SOLICITORS:	Appellant: The Builders' Lawyer Respondent: E H Tebbutt & Sons

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 8523/00
LOWER COURT JUDICIAL OFFICER :	Patten DCJ