Nikolic v Oladaily Pty Ltd

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.