CITATION: TRIMIS & ANOR v MINA [1999] NSWCA 140 revised - 02/06/99 FILE NUMBER(S): CA 40164/98 HEARING DATE(S): 17 March 1999 JUDGMENT DATE:
18 May 1999PARTIES :
Sofoclis TRIMIS & Anor v Nazih MINAJUDGMENT OF: Mason P at 1; Priestley JA at 78; Handley JA at 79
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : DC 7949/94 LOWER COURT JUDICIAL OFFICER: George ADCJ
COUNSEL: T G R Parker (Appellant)
M Galvin (Respondent)SOLICITORS: Coustas & Co (Appellant)
Elias Gates & Associates (Respondent)CATCHWORDS: CONTRACT - Building work - repudiation - attempt to rely on alternative justification; CONTRACT - unwritten variations - when restitutionary claim open; CONTRACT - measure of damages - builder wrongfully excluded CASES CITED: Pavey & Matthews Pty Ltd v Paul (1986) 162 CLR 221
Update Constructions Pty Ltd v Rozelle Child Care Centre Limited (1990) 20 NSWLR 251
Liebe v Molloy (1906) 4 CLR 347DECISION: Allowed in part
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40164/98
DC 7949/94MASON P
PRIESTLEY JA
HANDLEY JA
Tuesday 18 May 1999SOFOCLIS TRIMIS & ANOR v NAZIH MINA
JUDGMENT
1 MASON P: The appellants Mr and Mrs Trimis (“the owners”) owned land at Bankstown which they wished to develop. Plans for six cluster homes were approved by Bankstown City Council. Four houses were built by another builder.
2 The respondent Mr Mina (“the builder”) is a structural engineer who was carrying on business as a builder. He quoted for the remaining work.
3 On 16 November 1993 the parties executed their contract. They used Building Agreement Edition 8 (amended) issued by the Housing Industry Association, deleting particular provisions. The contract price was $155,300. The deposit was 5%. Clause 7 when read with schedule 11 required “progress payments” to be made at eight stages of the building work, these payments being due within 10 days of the builder notifying the owners of each event nominated in the schedule having occurred. A final payment of $3,800 was due on practical completion.
4 Clause 4 (when read with schedule 10) required the builder to proceed diligently with the works and to complete them within 18 weeks from the date of the contract. Provision was made for extending the time for completion on various contingencies (cl 4(c)).
5 The deposit of $7825 was paid. Between November 1993 and February 1994 the first four stages of construction were undertaken and paid for as follows:
1. Footing poured $17,0006 The fifth stage ($15,000) was for gyprock and joinery work, and the sixth ($12,000) was for painting and tiling, kitchens and other PCs.
2. Slab work $30,000
3. Timber framing and roof tiling $32,000
4. External brickwork $15,000.
7 On 16 March 1994 the builder submitted his claim for payment of the sixth (sic) progress claim seeking $15,000 “for gyprock, 90% of joinery and 30% of paint and some PC items”. This claim was not paid.
8 By this stage of the work it was apparent…
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- AGLC
- Trimis v Mina [1999] NSWCA 140
- Case
- [1999] NSWCA 140
- Decision Date
CaseChat Overview and Summary
Trimis (the builder) and Mina (the owner) were parties to a building contract. The dispute concerned the builder's claim for payment for work performed and the owner's counterclaim for damages arising from the alleged repudiation of the contract by the builder. The case was heard in the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the builder had repudiated the contract, whether the owner was entitled to rely on an alternative justification for terminating the contract, and the appropriate measure of damages for the builder's wrongful exclusion from the site. The court also considered whether an unwritten variation to the contract could give rise to a restitutionary claim.
The Court of Appeal found that the builder had not repudiated the contract. The owner's attempt to rely on an alternative justification for termination was unsuccessful as it was not a valid reason for repudiation. The court determined that the builder was wrongfully excluded from the site and that the measure of damages should reflect the value of the work performed and the profit the builder would have made had the contract been completed. The court also addressed the claim for restitution, finding it was not available in the circumstances.
The appeal was allowed in part, indicating that the builder was successful on some grounds but not all.
The primary legal issues before the Court of Appeal were whether the builder had repudiated the contract, whether the owner was entitled to rely on an alternative justification for terminating the contract, and the appropriate measure of damages for the builder's wrongful exclusion from the site. The court also considered whether an unwritten variation to the contract could give rise to a restitutionary claim.
The Court of Appeal found that the builder had not repudiated the contract. The owner's attempt to rely on an alternative justification for termination was unsuccessful as it was not a valid reason for repudiation. The court determined that the builder was wrongfully excluded from the site and that the measure of damages should reflect the value of the work performed and the profit the builder would have made had the contract been completed. The court also addressed the claim for restitution, finding it was not available in the circumstances.
The appeal was allowed in part, indicating that the builder was successful on some grounds but not all.
Orders
Orders of the court
Allowed in part
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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