Krahe v Manfate Pty Ltd

[2016] NSWCA 363

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Krahe v Manfate Pty Ltd [2016] NSWCA 363
Hearing dates:	07/12/2016
Date of orders:	16 December 2016
Decision date:	16 December 2016
Before:	Gleeson JA [1]; Simpson JA [2]; McDougall J [3]
Decision:	Appeal dismissed with costs on the indemnity basis.
Catchwords:	BUILDING AND CONSTRUCTION – contracts – oral contract – whether statement of a price was an estimate or a fixed quote – evidence of past dealings between parties suggestive of informal, trusting and flexible contractual relationships   APPEAL – whether primary judge erred in admitting evidence of prior dealings between the parties – whether primary judge erred in his assessment of the credibility of the appellants’ evidence and the interpretation of their affidavit evidence – whether primary judge erred in his assessment of the evidence giving rise to the contract which led to a conclusion adverse to the appellants
Legislation Cited:	Home Building Act 1989 (NSW)
Cases Cited:	Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 Fox v Percy (2003) 214 CLR 118 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 Watson v Foxman (1995) 49 NSWLR 315
Category:	Principal judgment
Parties:	Peter Krahe (First Appellant) Paula Joanne Krahe (Second Appellant) Manfate Pty Limited trading as Tom Murphy Builder (First Respondent)
Representation:	Counsel: P Reynolds / L Hulmes (Appellants) JA Steele / L Robb Vujcic (Respondent)   Solicitors: Clifton Legal (Appellants) Colin Biggers & Paisley (Respondents)
File Number(s):	2016/113370
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2016] NSWDC 70 Date of Decision: 17 March 2016 Before: Neilson DCJ File Number(s): 2015/69524

Judgment

1. GLEESON JA:   I agree with McDougall J.

2. SIMPSON JA:   I agree with McDougall J.

3. McDOUGALL J:   The appellants (the proprietors) own land at Tenterfield. In about July 2007, they engaged the respondent (the builder) to construct a building on that land. The builder carried out the work that it was instructed to do. It brought proceedings to recover $92,142 that, it said, the proprietors owed in respect of that work. The proprietors defended the claim. The primary judge found in favour of the builder and gave judgment in its favour for $122,335.10 (including interest). The proprietors appeal against that decision.

4. The principal dispute between the proprietors and the builder was whether:

1. as the proprietors contended, the contract was one under which the builder agreed to do the work for a fixed sum of $100,000; or

2. as the builder contended, whether the contract was a “do and charge” contract under which the rates to be charged would be calculated at “mates’ rates”.

5. The primary judge heard the case in Armidale. The evidence and submissions occupied five days. Thereafter, on the two following (sitting) days, his Honour gave ex tempore reasons for judgment. In substance, on the crucial point, he preferred the evidence of Mr Tom Murphy, who was the principal of the builder, to the evidence of the proprietors.