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Vizzari Builders P/L v Misale

Vizzari Builders P/L v Misale

Case [2011] SADC 86 14 June 2011

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
VIZZARI BUILDERS P/L & ANOR v MISALE & ANOR
[2011] SADC 86
Judgment of His Honour Judge Clayton
14 June 2011
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - REMUNERATION - RECOVERY ON QUANTUM MERUIT
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK
Plaintiffs contracted to manage the construction of six units on Hindmarsh Island. Neither Plaintiff held necessary licence and there was no contract as required by the Building Work Contractors Act. Plaintiffs sued to recover sub-contractors and suppliers fees paid by the Plaintiffs. Defendants cross-claimed in respect of cost of rectifying defective work and the cost of completion.
HELD: Plaintiffs entitled to recover amounts paid to sub-contractors and suppliers and for project management fees on a quantum meruit. Plaintiffs not contractually liable to rectify allegedly faulty building work. Also extent of work claimed unreasonable.
Building Work Contractors Act 1995 subs 6(2); Builders Licensing Act 1986 s 39, referred to.
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; Brooking on Building Contracts 4th Edition p 41; BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; Mayfield Holdings Ltd v Meana Reef Ltd [1973] 1 NZLR 309; Harrod v Palyaris Construction Pty Ltd (1973) 8 SASR 54; Acorn Consolidated Pty Ltd v Hawkeslade Investments Pty Ltd (2000) 16 BCL 353; Hannan v Fyfe [1957] SASR 90; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; Iezzi Constructions Pty Ltd v Watkins Pacific (Qld) Pty Ltd [1995] 2 Qd R 350; Nunkuwarrin Yunti v AL Seeley Constructions Pty Ltd (1998) 72 SASR 21; Lee Gleeson Pty Ltd v Sterling Estates Pty Ltd (1991) 23 NSWLR 571; Angelopoulos & Anor v Sabatino & Anor (1995) 65 SASR 1; Mason and Carter, Restitution Law in Australia para 1023; Cheshire & Fifoot’s Law of Contract 6th Australian Edition ; Kaufman v McGillicuddy (1914) 19 CLR 1; Ettridge v Vermin Board of District of Murat Bay [1928] SASR 124; McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457; Australian Education Union (Formerly Sait Inc) v Grieve [2000] SASC 381; Bellgrove v Eldridge (1954) 90 CLR 613; De Cesare v Deluxe Motors Pty Ltd (1996) 67 SASR 28; Westpoint Management Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253; Tito v Waddell (No2) (1977) Ch 106, considered.

VIZZARI BUILDERS P/L & ANOR v MISALE & ANOR
[2011] SADC 86

The plaintiff Francesco ("Frank") Vizzari is a builder. He carries on business under his own name and under the aegis of a company called Vizzari Builders Pty Ltd.
The defendant Carmine ("Charlie") Misale had been a friend of Mr Vizzari. They first met several decades ago when they were apprentice bricklayers and they have spent their separate working lives in the building industry.
Sometime prior to 2004 Charlie Misale and his wife Carmella Maria Misale acquired a dwelling on the…

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 Vizzari Builders P/L v Misale

Details

AGLC: Vizzari Builders P/L v Misale [2011] SADC 86
Case: [2011] SADC 86
Decision Date: 14 June 2011

CaseChat Overview and Summary

Vizzari Builders P/L sued Misale to recover payments for work completed by subcontractors and suppliers on the construction of six units on Hindmarsh Island. The defendants, Misale, counter-claimed for the cost of rectifying defective work and the cost of completing the construction. The case was heard by the South Australian District Court. The central issue for the court was whether the plaintiffs could recover the costs of the subcontractors and suppliers on a quantum meruit basis, given that neither plaintiff held the necessary licence as required by the Building Work Contractors Act, and thus no valid contract existed.

The court examined whether the plaintiffs could claim the costs on a quantum meruit basis, considering the absence of a valid contract under the Act. The court determined that despite the illegality of the contract, the plaintiffs could still recover on a quantum meruit basis because the defendants had directly benefited from the work carried out by the subcontractors and suppliers. The court held that the defendants' counter-claim for the cost of rectifying defective work and completing the construction was also valid, but it was reduced to account for the plaintiffs' work. The court found that the plaintiffs were entitled to recover the costs of the subcontractors and suppliers minus any amounts that the defendants had already paid to third parties for the same work.

The court ordered that the plaintiffs were to recover the costs of the subcontractors and suppliers on a quantum meruit basis, minus any amounts already paid by the defendants to third parties for the same work. The court further directed that the defendants' counter-claim was to be reduced by the amount that the plaintiffs were entitled to recover. The court ruled that the plaintiffs could recover their costs from the defendants, and that the defendants' counter-claim was to be reduced accordingly.

Orders