Robust Builders Pty Ltd v Barai & Anor (No.6)

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Robust Builders Pty Ltd v Barai & Anor (No.6) [2023] NSWDC 376

Hearing dates:

22-25, 28-31 August 2023; 1, 5 - 7 September 2023

Date of orders:

15 September 2023

Decision date:

15 September 2023

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 363

Catchwords:

CONTRACTS – building and engineering contracts - – builders’ claim for unpaid invoices – question of date the contract was entered – whether collateral contract – whether owners liable for unpaid invoices – whether claimed variations proven - owners’ cross-claim for defective and incomplete works – significance of issue of occupancy certificate and other compliance reports to proof of defective or incomplete works – significance of rectification order

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 96,100

Evidence Act 1995 (NSW), s 69

Home Building Act 1989 (NSW), ss 7, 10, 11, 18B, 18E, 18BA, 18G, 48E, 48F, 48K, 48L, 51

Uniform Civil Procedure Rules 2005 (NSW), rr 6.20, 14.14, 42.1

Cases Cited:

Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570

Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520

Concut Pty Ltd v Worrell (2000) 75 ALJR 312

Crown Melbourne Ltd v Cosmpolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1

Hoyt’s Pty Ltd v Spencer (1919) 27 CLR 133

L'Estrange v Graucob Ltd (1934) 2 KB 394

Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560:

Tallerman & Co Pty Ltd v Nathan’s Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

Texts Cited:

N Seddon and R Bigwood, Cheshire & Fifoot The Law of Contract (11th Australian ed, LexisNexis 2017)

Category:

Principal judgment

Parties:

Robust Builders Pty Ltd (plaintiff/cross-defendant)
Mr P Barai (defendant/cross-claimant 1)
Mrs F Mahjabeen (defendant/cross-claimant 2)

Representation:

Mr D Lambley (solicitor) for the defendants/cross-claimant
Mr R Mehndiratta (as director of and for the plaintiff/cross-defendant)

File Number(s):

2018/00259451

REASONS FOR JUDGMENT

Introduction

The parties’ cases

Issues

The evidence relied upon by the parties

issues associated with the builder’s claim

The date the contract was entered

The Builder’s evidence

The Owners’ evidence

Mr Barai

Ms Mahjabeen

Expert evidence

Submissions

The Builder’s submissions

The Owners’ submissions

The builders’ submissions in reply

Consideration

Credit

Mr Mehndiratta

Mr Barai

Ms Mahjabeen

Forensic consequences of credit findings

Analysis

When the contract was entered into & entry into collateral agreement

Was there a cap on claims for variations?

Summary

The claim for unpaid invoices

The Builder’s evidence

The invoices the subject of the claim

Other documents

The Owners’ evidence

Mr Barai’s evidence

Mr Barai’s position in relation to the invoices he says were received

Mr Barai’s position with respect to the invoices he says he did not receive

Features of Mr Barai’s cross-examination

Ms Mahjabeen

Submissions

The Builder’s submissions

The owners’ submissions

Consideration

Claim in restitution for works performed

The claim in detinue for items not returned to the Builder

The…