Built Interiors Pty Ltd v Three Dinosaurs Pty Ltd

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.