K & K Quality Constructions Pty Ltd v Issa

[2019] NSWCATCD 65

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

K & K Quality Constructions Pty Ltd v Issa [2019] NSWCATCD 65

Hearing dates:

26 August 2019 and 28 October 2019

Date of orders:

5 November 2019

Decision date:

05 November 2019

Jurisdiction:

Consumer and Commercial Division

Before:

B Shipp, Senior Member

Decision:

The Respondent is to pat the Applicant the sum of $6,270 on or before 30 November 2019.

Catchwords:

Residential Building Work – Preliminary Work – Entitlement to payment when no written contract – Quantum Meruit – Just and Equitable.

Legislation Cited:

Home Building Act 1989

Cases Cited:

Grygiel v Baine & Ors [2005] NSWCA 218

Allcastle Homes Pty Ltd v Wilkinson [2016] NSWCATAP 3

Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277

Darin v Olzomer [2012] NSWCA 60.

Jason and Michelle Zammit trading as Zammit’s Quality Constructions v Saul Markunsky and Shereen Markunsky [2015] NSWCATCD 21

Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273.

Stephenson v State Bank of New South Wales (1996) 39 NSWLR 101

Talga v MBC International Limited [1976] HCA 22; (1976) 133 CLR 622.

Sullman v Sullman [2002] NSWSC 169.

Pender v Robwenphi Pty Limited & Anor [2008] NSWSC 1144.

Texts Cited:

NIL

Category:

Principal judgment

Parties:

K & K Quality Constructions Pty Ltd, Applicant
Albert Issa, Respondent

Representation:

Ms Hamede for the Applicant
The Respondent in person

File Number(s):

HB 19/22163

Publication restriction:

NIL

REASONS FOR DECISION

Background and Application

1. The Applicant alleges that an agreement was entered into with the Respondent to undertake preliminary work in relation to the construction of a granny flat on a property owned by the Respondent at Airds. There is no dispute that there was no signed contract between the parties in respect of this work, but the Applicant alleges there was an exchange of email correspondence and some other documents signed by the Respondent from which it inferred instructions by the Respondent to proceed to a certain point.

2. There is no dispute that there is no binding contract between the parties to construct the granny flat, but the Applicant claims it undertook certain preliminary work (including obtaining a survey, architectural plans and a S 149 certificate from Council) in preparation for lodging a development application, and that it incurred costs in doing so.

3. The Applicant says it has issued Invoices in respect to this work which the Respondent has refused to pay. In May 2019, the Applicant applied to the Tribunal seeking a money order in respect of these unpaid invoices totalling $7,770.

4. The Respondent denies any binding agreement to pay the Applicant for any work, preliminary or otherwise, associated with the construction of the granny flat. He also refers to correspondence and other communications between the parties in which he specifically requests no action to be taken by the Applicant until a contract is provided.

Proceedings

5. The matter first came before the Tribunal on 13 June 2019. The Respondent had…