Wright v Foresight Constructions Pty Ltd

Case [2011] NSWCA 327

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Wright v Foresight Constructions Pty Ltd [2011] NSWCA 327
Hearing dates:4 October 2011
Decision date: 26 October 2011
Before: Giles JA at 1;
Basten JA at 13;
Handley AJA at 54
Decision:

(1) The order of the District Court with respect to the costs in the Tribunal be set aside insofar as it required Desiree Wright to pay any part of the builder's costs in the Tribunal.

(2) Subject to order (1), dismiss the application to review the judgment of the District Court of 18 March 2011.

(3) Order that Adam Wright pay the costs of the respondent in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

CONTRACT - building - oral variation of specification - contract unenforceable by builder but oral variation relied upon in defence of claim by owner - construction of contract - Home Building Act 1989 (NSW), ss 7, 7A, 7E, 10

JUDICIAL REVIEW - variation of costs order - order set aside as against party wrongly made subject to order

STATUTORY INTERPRETATION - reliance by builder on oral variation to written agreement - statute prescribing consequences of breach - Home Building Act 1989 (NSW), ss 7, 7A, 7E, 10
Legislation Cited: Building Legislation Amendment (Quality of Construction) Act 2002 (NSW), Schedule 2, Item 2.2
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 53
Consumer, Trader and Tenancy Tribunal Regulation 2009, cl 20
Home Building Act 1989 (NSW), ss 7, 7A, 7E, 10, 11, 18B
Home Building Regulation 1997 (NSW), Part 1, Sch 3A; cll 1, 59
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 6.12A, 51.45
Cases Cited: Bellgrove v Eldridge [1954] HCA 36; 90 CLR 613
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 481, 175 CLR 353
Head v Kelk (1963) 63 SR (NSW) 340
Mayfair Trading Co Pty Ltd v Dreyer [1958] HCA 55, 101 CLR 428
Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; 162 CLR 221
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; 236 CLR 272
Wright v Foresight Constructions Pty Ltd [2010] NSWCTTT 147
Wright v Foresight Constructions Pty Ltd [2010] NSWCTTT 264
Texts Cited:

Halsbury's Laws of England (4th ed, reissue) Vol 9(1): Contract, par 1081

E Peel, Treitel - The Law of Contract (12th ed, 2007), pars 13-021, 13-032
Category:Principal judgment
Parties: Adam Wright - First Applicant
Desiree Wright - Second Applicant
Foresight Constructions Pty Ltd - First Respondent
District Court of NSW - Second Respondent
Representation:

Counsel:

Mr F…

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AGLC
Wright v Foresight Constructions Pty Ltd [2011] NSWCA 327
Case
[2011] NSWCA 327
Decision Date

CaseChat Overview and Summary

The case of *Wright v Foresight Constructions Pty Ltd* concerned a dispute arising from a building contract. The primary issue before the Court of Appeal of New South Wales was whether an oral variation to a written building contract, which was otherwise unenforceable by the builder under the *Home Building Act 1989* (NSW), could be relied upon by the builder in defence of a claim brought by the owner.

The court was required to determine the legal effect of an oral variation to a building contract that did not comply with the formal requirements of the *Home Building Act 1989* (NSW). Specifically, the court considered whether the builder could rely on such an oral variation to defeat the owner's claim, despite the statute's provisions regarding the enforceability of building contracts. The court also addressed a separate issue concerning a variation of a costs order made in the Tribunal.

The court reasoned that the *Home Building Act 1989* (NSW) prescribed consequences for non-compliance with its requirements, including the unenforceability of the contract by the builder. However, the court found that the builder could not rely on the oral variation to defeat the owner's claim, as the statute's purpose was to protect consumers, and allowing such a defence would undermine that protection. The court also set aside a costs order that had wrongly subjected one of the parties to the builder's costs in the Tribunal.

The Court of Appeal ordered that the District Court's costs order in the Tribunal be set aside to the extent it required Desiree Wright to pay any part of the builder's costs. The application to review the District Court's judgment was otherwise dismissed, and Adam Wright was ordered to pay the respondent's costs in the Court of Appeal.

Orders

Orders of the court

(1) The order of the District Court with respect to the costs in the Tribunal be set aside insofar as it required Desiree Wright to pay any part of the builder's costs in the Tribunal.

(2) Subject to order (1), dismiss the application to review the judgment of the District Court of 18 March 2011.

(3) Order that Adam Wright pay the costs of the respondent in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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