Coshott v Fewings Joinery Pty Ltd

In *Coshott and Anor v Fewings Joinery Pty Ltd*, the New South Wales Court of Appeal considered an appeal concerning a dispute over the proper interpretation and application of a building contract. The appellants, Coshott and Anor, were the owners of a property, and the respondent, Fewings Joinery Pty Ltd, was the builder engaged to carry out renovation works. The core of the dispute revolved around whether the builder was entitled to payment for certain variations to the original contract.

The primary legal issue before the Court of Appeal was whether the builder had complied with the contractual requirements for notifying the owners of proposed variations and obtaining their written approval before proceeding with the work. Specifically, the court had to determine if the builder's actions constituted a waiver of these contractual requirements by the owners, or if the owners were estopped from relying on the strict terms of the contract regarding variations. The court also considered the principles of quantum meruit in the context of building disputes where contractual formalities have not been strictly adhered to.

The Court of Appeal, applying principles of contract law, found that the builder had failed to follow the express terms of the contract concerning variations, which required written approval from the owners. While acknowledging that the owners had been aware of and had not objected to some of the work being carried out, the court held that this did not amount to a waiver of the contractual requirement for written approval of variations. The court reasoned that the builder bore the onus of ensuring compliance with the contract, and the owners' conduct, while perhaps indicating a degree of informality, did not unequivocally demonstrate an intention to dispense with the written approval clause for all variations. The court also considered that a claim in quantum meruit was not appropriate in these circumstances, as a valid contract still governed the relationship between the parties, albeit one where the builder had not strictly complied with its terms regarding variations.

The appeal was allowed, and the judgment of the primary judge was set aside. The court ordered that the builder was not entitled to recover the amounts claimed for the disputed variations.