BUILT INTERIORS PTY LTD v THREE DINOSAURS PTY LTD & ANOR [2003] NSWCA 290

BUILT INTERIORS PTY LTD v THREE DINOSAURS PTY LTD & ANOR [2003] NSWCA 290

The appeal failed because the Builder did not prove entitlement to payment for the claimed unapproved variations. The works were part and parcel of the building project governed by an existing enforceable contract, the contractual requirements for variations had not been followed, there was insufficient proof that the contract had otherwise been varied, and restitutionary recovery was unavailable for work covered by the contract. The alleged Jones v Dunkel error, proposed fresh evidence, new trial grounds, and acceleration-cost claim did not demonstrate error affecting the result.

Jurisdiction
Australia
Judgment Date
03 October 2003
Procedural Posture
Building Contract Appeal / Appeal From District Court Judgment of Patten DCJ
Outcome
Appeal dismissed with costs.
Legal Topics
['building Contract Variations' 'quantum Meruit and Unjust Enrichment' 'jones V Dunkel Inference' 'fresh Evidence on Appeal' 'leave and Competency of Appeal' 'implied Term for Acceleration Costs' 'defective Workmanship Cross Claim']
['contract Law' 'building and Construction' 'restitution' 'civil Procedure' 'evidence'] ['building Contract Variations' 'quantum Meruit and Unjust Enrichment' 'jones V Dunkel Inference' 'fresh Evidence on Appeal' 'leave and Competency of Appeal' 'implied Term for Acceleration Costs' 'defective Workmanship Cross Claim']

Case Brief

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Procedural Posture

Building Contract Appeal / Appeal From District Court Judgment of Patten DCJ

Legal Issues

  1. 1 ['Whether the Builder could recover for unapproved variations despite non-compliance with contractual procedures for written instructions and approval.' 'Whether restitutionary recovery by quantum meruit or unjust enrichment was available where an existing enforceable building contract covered the work.' 'Whether the trial judge erred in applying, or failing to apply, the principle in Jones v Dunkel in relation to the absence of evidence from the Architect.' 'Whether fresh evidence from Mr Moore should be received on appeal.' "Whether a new trial should be ordered because of alleged discovery deficiencies, assessment of expert evidence, or treatment of Mr Bath's evidence." "Whether an implied term entitled the Builder to acceleration costs allegedly incurred at the Proprietors' request."]

Ratio Decidendi

The appeal failed because the Builder did not prove entitlement to payment for the claimed unapproved variations. The works were part and parcel of the building project governed by an existing enforceable contract, the contractual requirements for variations had not been followed, there was insufficient proof that the contract had otherwise been varied, and restitutionary recovery was unavailable for work covered by the contract. The alleged Jones v Dunkel error, proposed fresh evidence, new trial grounds, and acceleration-cost claim did not demonstrate error affecting the result.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.' 'Fresh evidence rejected.']