Darin v Olzomer

[2011] NSWDC 51

District Court

New South Wales

Medium Neutral Citation:	Darin v Olzomer [2011] NSWDC 51
Hearing dates:	9 May 2011
Decision date:	20 May 2011
Before:	Judge Peter Johnstone
Decision:	Appeal dismissed with costs
Catchwords:	CTTT - appeal from a decision of the CTTT on a question with respect to a matter of law whether there was any material before the Tribunal to support its finding as to the amount of a quantum meruit
Legislation Cited:	Consumer, Trader and Tenancy Tribunal Act 2001
Cases Cited:	Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 Liebe v Molloy (1906) 4 CLR 347 Pavey & Matthews Pty Limited v Paul [1987]HCA 5 Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 Sopov v Kane Constructions Pty Ltd (No 2)[2009] VSCA 141
Category:	Principal judgment
Parties:	John Darin (First Plaintiff) Valda Darin (Second Plaintiff) Richard Anthony Olzomer t/as Olzomer Building Services (Defendant)
Representation:	Mr M R Gracie (Plaintiffs) Mr G Jenson (Defendant) Spinks Eagle Lawyers (Plaintiffs) Sparke Helmore (Defendant)
File Number(s):	2010/414921

Judgment

1. The plaintiffs have appealed to the District Court from a decision of the Consumer, Trader and Tenancy Tribunal (the Tribunal) made on 17 November 2010 in respect of a building dispute between the plaintiffs (as owners) and the defendant (as builder).

1. The Tribunal determined the building dispute, so far as is relevant to this appeal, by concluding that there was an oral variation of the building contract entered into between the parties for the construction of a house. This oral variation was not made in accordance with the variation regime provided for in the contract, such that the builder was not entitled to make any claim under the contract, but was entitled to recover the cost of the variation on a quantum meruit. So much was not in dispute in this appeal.

1. The plaintiffs' complaint in this appeal concerns the determination of the amount of the quantum meruit entitlement. The Tribunal allowed the builder's claim in an amount of $58,313.86.

1. The appeal, commenced by Summons filed on behalf of the plaintiffs on 14 December 2010, is brought under s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001, which provides for an appeal as of right from a decision on a question with respect to a matter of law. The Summons set out three grounds of appeal, but at the hearing, only the third ground was pressed. That ground was, in summary:

The Tribunal erred in finding that the builder was entitled to a quantum meruit in the amount awarded, namely the amount of $58,313.86.

1. The basis of the plaintiffs appeal is that there was no evidence before the Tribunal upon which it could have found that the amount of $58,313.86 was the amount of the claimed variation, and therefore erred in law in finding the builder's entitlement in that amount: Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [91].

1. To understand the plaintiffs' contention, it is necessary to examine…