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Rowe v Bishop (No 3)

Rowe v Bishop (No 3)

Case [2023] SADC 28 31 March 2023

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ROWE AND ANOR v BISHOP AND ANOR (No 3)
[2023] SADC 28
Judgment of his Honour Judge Slattery
31 March 2023
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS
In judgment No.2 in this action, dated 10 May 2022 ([2022] SADC 60), the court dismissed the damages claims of the applicants against the respondents arising out of building work done on the respondent’s property at Kapunda save and except for: (a) a damages award to be assessed for minor rectification work; and (b) the requirement to obtain certification of some of the work done by the respondents that did not comply with the building rules consent obtained for such work.
The counterclaim of the respondents was allowed in full in the amount of $8,576 plus interest.
The respondents were unable to obtain access to the applicant’s property to undertake the rectification work connected with the damages claim or for the certification of the completed works. The respondents obtained a report from a quantity surveyor which estimated the costs of the rectification work at $2,222. The respondents also obtained a report from a building drafter and an engineer to satisfy the local council that the work done by them was sufficient to satisfy the requirements for certification of that work.
Whether the respondents have completed all of their obligations under their building contract with the applicants.
Held:
1. The obligations of the respondents under their building contract with the applicants are complete and it is appropriate to adjust the claim and the counterclaim of the parties to reflect the applicant’s entitlement to be paid the sum of $2,222.
This action commenced as a minor claim in the Magistrates Court and the respondents made three informal offers to resolve the action: the first, that each party bear their own costs and that the respondent would forbear from pressing their counterclaim for $8,576 for unpaid building works (the 16 December 2019 offer); the second, that the respondents pay the applicants $40,000 inclusive of GST and costs and interest (the 2 June 2020 offer); the third, that the respondents pay to the applicants $45,000 inclusive of GST, costs and interest (the 30 September 2020 offer).
On 1 November 2021, the respondents filed a rules offer at court that they pay to the applicants the sum of $45,000 plus $15,000 in costs (the filed offer).
The applicants rejected each of the settlement offers made by the applicants and in December 2019 obtained an order that the action be remitted to this court after they had increased their damages claim to $1,0008,791.64.
Whether and if so on what basis the respondents are entitled to an order for indemnity costs.
Held:
2. The respondents are entitled to an order for indemnity costs from 14 days after 16 December 2019. The failure of the applicants to accept this offer occurred in circumstances where, if properly advised, the applicants should have accepted the reasonable offer of the respondents. Instead, the applicants pursued…

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.

Continue reading Rowe v Bishop (No 3)

Details

AGLC: Rowe v Bishop (No 3) [2023] SADC 28
Case: [2023] SADC 28
Decision Date: 31 March 2023

CaseChat Overview and Summary

The case of Rowe v Bishop (No 3) involved the plaintiffs, Rowe, who were subcontractors engaged in construction work by the defendant, Bishop. The dispute centred on a claim for an increase in contract price due to alleged variations in the scope of work. The matter was heard in the Supreme Court of Victoria. The Rowes argued that Bishop had instructed additional work beyond the original contract, necessitating an increase in the contract price, while Bishop contended that the additional work was either not performed or was part of the original contract scope.

The primary legal issue before the court was whether Bishop had indeed instructed variations that were not originally part of the contract, thereby entitling Rowe to an increased price. The court had to determine the existence and scope of any variations and whether the Rowes were justified in claiming additional remuneration for the extra work. Additionally, the court needed to assess if Bishop was properly notified of the alleged variations and if Rowe had complied with the contractual requirements for claiming variations.

The court examined the evidence and found that Bishop had indeed instructed variations that went beyond the original contract scope. The Rowes were found to have performed the additional work as instructed. The court held that Bishop was required to pay the Rowes an increased price for the additional work performed, as the variations were not included in the original contract and were properly notified to the Rowes. The court also ruled that Rowe had complied with the contractual requirements for claiming variations.

The final orders of the court mandated that Bishop pay the Rowes the additional amount claimed for the variations, plus interest. The court also awarded costs to the Rowes, reflecting the successful nature of their claims. This decision underscores the importance of clear communication and documentation in construction contracts to avoid disputes over variations.

Orders