Pearce v Jamatt Constructions Pty Ltd

[2018] NSWCATCD 44

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Pearce v Jamatt Constructions Pty Ltd [2018] NSWCATCD 44
Hearing dates:	9 and 10 May 2018, close of submissions 28 June 2018
Date of orders:	16 August 2018
Decision date:	16 August 2018
Jurisdiction:	Consumer and Commercial Division
Before:	S Thode, Senior Member
Decision:	(1) The respondent shall pay $9816.14 to the applicants immediately.  (2) The respondent shall pay the applicants’ costs of and incidental to the application on the ordinary basis as agreed or assessed.
Catchwords:	CONTRACTS — Formation — Agreement — Battle of the forms – Construction Contracts
Legislation Cited:	Civil and Administrative Tribunal Act 2013; Home Building Act 1989
Cases Cited:	Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; Sopov v Kane [2009] VSCA 141; Thompson v Chapman [2015] NSWCATAP 233; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 [2004] HCA 52; Mac v Antworks Pty Ltd [2016] NSWCATCD 75; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales ; Simic v New South Wales Land and Housing Corporation [2015] NSWCA 413; Green Apple Pty Ltd v La Brasserie Investments Pty Ltd [2018] NSWCATAP 90
Category:	Principal judgment
Parties:	Gary Alan Pearce, first applicant; Lidia Palmina Pearce, second applicant (the homeowners);   Jamatt Constructions Pty Ltd (respondent builder)
Representation:	Mr McCall, counsel, instructed by Mr C. Braid of Walters Solicitors for the applicants; Mr Simpson, counsel, instructed by Messrs Somerville Laundry Lomax Solicitors for the respondent.
File Number(s):	HB 17/30079
Publication restriction:	Nil

reasons for decision

The proceedings

1. For convenience Mr and Mrs Pearce shall be referred to as the owners. The proceedings arise out of the construction of a dwelling at xxx Road Alstonville, (the premises).

2. The builder provided an estimate dated 14 November 2014. The parties entered into a contract for residential building work dated 15 November 2014. The estimate and the contract show considerable disparity. The question the Tribunal must determine is whether the parties entered into a fixed price contract for $500,000 or a “do and charge” or “cost plus” contract. The owners maintain that the contract was a fixed price contract and that they overpaid the builder. The builder maintains that the contract was a do and charge contract and that he was paid an appropriate amount for his work.

The applicants’ claim

3. The owners claim that the contract was a fixed price contract in the sum of $500,000 and that contrary to the terms of the contract, they were overcharged.

4. The owners’ claim has two elements:

1. The overcharge claim for $42,935.63, being the difference between the total adjusted contract price of $640,887.57 and what the owners say they paid to the builder and third parties, being $683,823.20

2. The defective works claim of $50,047. While headed defective works, this claim has two elements, a claim for defective works ($19,615) and a claim for incomplete work ($18,300) both amounts before margins and GST.

5. In regards to the construction…