Nikolic v Oladaily Pty Ltd - [2007] NSWCA 252

New South Wales

Court of Appeal

CITATION: NIKOLIC & Anor v OLADAILY PTY LTD & Ors [2007] NSWCA 252
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1 & 2 August 2007

JUDGMENT DATE:
21 September 2007

JUDGMENT OF: Mason P at 1; Campbell JA at 109; Handley AJA at 110

DECISION: Appeal dismissed with costs

CATCHWORDS: CONTRACTS - Construction and Interpretation - implication of terms - inconsistency with express terms - whether contract a "fixed price" or a "do and charge" contract - where variations occurred - whether extent and nature of work known with sufficient precision at time of contracting - contract for building work - RESTITUTION - where valid contract exists - subsidiarity doctrine - no evidence that appellant paid for work done - where work done paid by company associated with appellants

LEGISLATION CITED: Trade Practices Act 1974 (Cth)

CASES CITED: Coshott v Lenin [2007] NSWCA 153
Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251
Horton v Jones (No 2) (1939) 39 SR(NSW) 305
Mears v Safecar Security Ltd [1983] QB 54
Ormwave Pty Ltd v Smith [2007] NSWCA 210
Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516
Sussan Corporation (Aust) Pty Ltd v A P Kenyon Pty Ltd (1997) 8 BPR [15,411]
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Trimis v Mina (1999) 16 BCL 288; [1999] NSWCA 140

PARTIES: Damien NIKOLIC (First Appellant)
Giorgio NIKOLIC (Second Appellant)
OLADAILY PTY LTD (First Respondent)
Tri VO (Second Respondent)
Hahn VO (Third Respondent)

FILE NUMBER(S): CA 40703/06

COUNSEL: Appellants: C R C Newlinds SC/ P A Horvath
Respondents: M Southwick

SOLICITORS: Appellants: John J Puleo & Company (Castle Hill)
Respondents: Murphy's Lawyers Civil (Surry Hills)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4095/01

LOWER COURT JUDICIAL OFFICER: Gibb DCJ

LOWER COURT DATE OF DECISION: 7 July 2006

CA 40703/2006
DC 4095/2001

MASON P
CAMPBELL JA
HANDLEY AJA
Friday 21 September 2007

Damien NIKOLIC & Anor v OLADAILY PTY LTD & Ors

JUDGMENT

1 MASON P: The appellants claim the cost of supplying design and building services to the first respondent (“the company”) a company managed by Mr and Mrs Vo, the second and third respondents.

2 In June 1999 Mr and Mrs Vo retained the appellants to undertake work at the Crystal Palace, a function centre owned by the company at Canley Heights.

3 The work was done to the satisfaction of the respondents. In other words, there was no dispute at trial that the works contracted for were supplied, nor about their quality.

4 The only dispute relates to price. The respondents say that they paid what was due.

5 The trial judge, Gibb DCJ, found for the respondents. Her Honour found that there was a partly written, partly oral agreement to the effect of a fixed-price contract to do the work for $690,000 less…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWCA 252
Decision Date: 21 September 2007

CaseChat Overview and Summary

The case of *Nikolic v Oladaily Pty Ltd* concerned a dispute arising from a contract for building work. The appellant, Mr Nikolic, entered into an agreement with the respondent, Oladaily Pty Ltd, for construction services. The central issue revolved around the nature of the contract and whether it constituted a "fixed price" agreement or a "do and charge" arrangement, particularly in light of variations that occurred during the project. The appeal was heard by the Court of Appeal of New South Wales, with Mason P, Campbell JA, and Handley AJA presiding.

The primary legal questions before the court were whether the contract was to be construed as a fixed price contract or a do and charge contract, and consequently, how the variations to the work should be treated. Further, the court considered whether the extent and nature of the work were sufficiently precise at the time of contracting to support a fixed price interpretation. The court also examined the applicability of the doctrine of subsidiarity in restitution, which posits that a claim in restitution is only available where no valid contract governs the subject matter of the dispute.

The court's reasoning focused on the interpretation of the contract documents and the surrounding circumstances to determine the parties' intentions regarding pricing. It was held that the contract was not a fixed price contract, as the extent and nature of the work were not known with sufficient precision at the time of entering into the agreement. The court found that the contract operated on a "do and charge" basis, allowing for variations. Regarding the restitution claim, the court noted that the subsidiarity doctrine applied, and as there was evidence that the work done was paid for by a company associated with the appellant, rather than the appellant personally, the restitution claim was not made out.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	NIKOLIC & Anor v OLADAILY PTY LTD & Ors [2007] NSWCA 252 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	1 & 2 August 2007
JUDGMENT DATE:	21 September 2007
JUDGMENT OF:	Mason P at 1; Campbell JA at 109; Handley AJA at 110
DECISION:	Appeal dismissed with costs
CATCHWORDS:	CONTRACTS - Construction and Interpretation - implication of terms - inconsistency with express terms - whether contract a "fixed price" or a "do and charge" contract - where variations occurred - whether extent and nature of work known with sufficient precision at time of contracting - contract for building work - RESTITUTION - where valid contract exists - subsidiarity doctrine - no evidence that appellant paid for work done - where work done paid by company associated with appellants
LEGISLATION CITED:	Trade Practices Act 1974 (Cth)
CASES CITED:	Coshott v Lenin [2007] NSWCA 153 Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251 Horton v Jones (No 2) (1939) 39 SR(NSW) 305 Mears v Safecar Security Ltd [1983] QB 54 Ormwave Pty Ltd v Smith [2007] NSWCA 210 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 Sussan Corporation (Aust) Pty Ltd v A P Kenyon Pty Ltd (1997) 8 BPR [15,411] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Trimis v Mina (1999) 16 BCL 288; [1999] NSWCA 140
PARTIES:	Damien NIKOLIC (First Appellant) Giorgio NIKOLIC (Second Appellant) OLADAILY PTY LTD (First Respondent) Tri VO (Second Respondent) Hahn VO (Third Respondent)
FILE NUMBER(S):	CA 40703/06
COUNSEL:	Appellants: C R C Newlinds SC/ P A Horvath Respondents: M Southwick
SOLICITORS:	Appellants: John J Puleo & Company (Castle Hill) Respondents: Murphy's Lawyers Civil (Surry Hills)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4095/01
LOWER COURT JUDICIAL OFFICER:	Gibb DCJ
LOWER COURT DATE OF DECISION:	7 July 2006