LIDA Build Pty Ltd v Miller (No 2)

LIDA Build Pty Ltd, a building contractor, brought proceedings against the Millers, their clients, in the Australian Building and Construction Commission. The dispute centred around a domestic building contract and a variation to the original contract terms. The Millers counterclaimed alleging that the contractor had failed to complete the work to an acceptable standard. The matter was ultimately determined by the Federal Court of Australia.

The central issue for the court was whether a variation to the original building contract was valid and enforceable despite not being in writing. The Millers argued that the absence of a written variation rendered the change to the contract terms invalid. The court needed to decide if the principle of waiver could apply in this situation and if there was sufficient evidence to show that the contractor had waived its right to require a written variation.

The court held that the principle of waiver applied and that the contractor had effectively waived its requirement for a written variation. The court found that there was evidence that the contractor had accepted the Millers' proposed variation and had proceeded with the works on the basis of those varied terms. The court also found that the contractor had not communicated to the Millers that it required a written variation and that such a requirement had not been insisted upon. The court concluded that the variation was valid and enforceable despite not being in writing.

The court ordered that the Millers pay the contractor the sum of $38,907.31 by a specified date. The court dismissed the Millers' counterclaim finding that the contractor had completed the work to an acceptable standard. The court also found that the contractor had not breached the building contract in any way.