Page v Home Team Constructions Pty Ltd [2008] NSWSC 613

Page v Home Team Constructions Pty Ltd [2008] NSWSC 613

The appeal failed because the asserted errors did not disclose errors of law. The magistrate's reasons showed he had Mr Molloy and his evidence in mind, and his acceptance of the builder's evidence over the owners' evidence was adequate despite no express discussion of Mr Molloy's tangential evidence. The magistrate found, expressly or by accepting the builder's evidence, the factual matters necessary to support recovery for the suspended slab, brick fence and Door 6 variations. The alleged honesty or good faith issue was not shown to have been put to the Local Court in a way requiring a reasoned determination, and failure to give reasons on that issue did not found an appeal.

Jurisdiction
Australia
Judgment Date
19 June 2008
Procedural Posture
Appeal From Local Court Judgment in a Building Contract Dispute / Supreme Court of New South Wales, Common Law Division Appeal; Appeal Limited to Errors of Law Under Local Courts Act, 1982, S 73(1), With No Leave Application Under S 74(1)
Outcome
Appeal dismissed with costs.
Legal Topics
['appeal on Question of Law From Local Court' 'adequacy of Reasons' 'building Contract Variations' 'restitutionary Recovery for Extras' 'provisional Cost Items' 'duty of Honesty and Good Faith']
['civil Procedure' 'contract Law' 'building and Construction' 'restitution'] ['appeal on Question of Law From Local Court' 'adequacy of Reasons' 'building Contract Variations' 'restitutionary Recovery for Extras' 'provisional Cost Items' 'duty of Honesty and Good Faith']

Case Brief

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Procedural Posture

Appeal From Local Court Judgment in a Building Contract Dispute / Supreme Court of New South Wales, Common Law Division Appeal; Appeal Limited to Errors of Law Under Local Courts Act, 1982, S 73(1), With No Leave Application Under S 74(1)

Legal Issues

  1. 1 ['Whether the magistrate erred in law by failing to consider or give reasons for rejecting the evidence of Mr Molloy.' 'Whether the magistrate failed to apply settled legal principles governing recovery for building variations not in writing signed by the builder and owner.' 'Whether the magistrate erred in allowing additional remuneration for Door 6 as a variation of a fixed cost item.' 'Whether the magistrate erred by failing to consider an alleged duty of honesty in assessing the claim for the on-ground floor slab.']

Ratio Decidendi

The appeal failed because the asserted errors did not disclose errors of law. The magistrate's reasons showed he had Mr Molloy and his evidence in mind, and his acceptance of the builder's evidence over the owners' evidence was adequate despite no express discussion of Mr Molloy's tangential evidence. The magistrate found, expressly or by accepting the builder's evidence, the factual matters necessary to support recovery for the suspended slab, brick fence and Door 6 variations. The alleged honesty or good faith issue was not shown to have been put to the Local Court in a way requiring a reasoned determination, and failure to give reasons on that issue did not found an appeal.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed.' "The plaintiffs (owners) are to pay the defendant's (builder's) costs of the appeal."]