NIKOLIC & Anor v OLADAILY PTY LTD & Ors [2007] NSWCA 252

NIKOLIC & Anor v OLADAILY PTY LTD & Ors [2007] NSWCA 252

The appeal failed because the primary judge was entitled to find a fixed price contract formed on 7 June 1999 for $690,000 less the reasonable cost of deleted items, with agreed variations payable separately. The quotation, payment of the deposit, subsequent performance, invoices and accepted evidence supported that conclusion and left no room to imply a do and charge term. Restitution failed because the appellants did not prove that they paid for or became liable for the third-party work and materials, and because a valid contract covered the field. The trade practices and estoppel claims failed because any promises to pay were honoured according to the contractual obligations found by...

Jurisdiction
Australia
Judgment Date
21 September 2007
Procedural Posture
Civil Appeal Concerning a Building Contract, Restitution, Misleading or Deceptive Conduct and Estoppel Claims / Appeal From District Court Judgment of Gibb DCJ Finding for the Respondents
Outcome
Appeal dismissed with costs
Legal Topics
['construction and Interpretation of Contract' 'implied Terms' 'fixed Price Contract' 'do and Charge Contract' 'variations' 'unjust Enrichment' 'subsidiarity Doctrine' 'misleading or Deceptive Conduct']
['contract Law' 'building and Construction' 'restitution' 'trade Practices' 'estoppel'] ['construction and Interpretation of Contract' 'implied Terms' 'fixed Price Contract' 'do and Charge Contract' 'variations' 'unjust Enrichment' 'subsidiarity Doctrine' 'misleading or Deceptive Conduct']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Appeal Concerning a Building Contract, Restitution, Misleading or Deceptive Conduct and Estoppel Claims / Appeal From District Court Judgment of Gibb DCJ Finding for the Respondents

Legal Issues

  1. 1 ['Whether the agreement for design and building work was a fixed price contract or a do and charge contract requiring payment of a reasonable sum' 'Whether a do and charge term should be implied despite the quotation and surrounding communications' 'Whether the restitutionary claim could succeed where the appellants did not prove that they paid for or became liable for the work and materials supplied by third parties' 'Whether restitution was unavailable because a valid contract covered the field' 'Whether the trade practices and estoppel claims could succeed on representations that payment would be made for work performed']

Ratio Decidendi

The appeal failed because the primary judge was entitled to find a fixed price contract formed on 7 June 1999 for $690,000 less the reasonable cost of deleted items, with agreed variations payable separately. The quotation, payment of the deposit, subsequent performance, invoices and accepted evidence supported that conclusion and left no room to imply a do and charge term. Restitution failed because the appellants did not prove that they paid for or became liable for the third-party work and materials, and because a valid contract covered the field. The trade practices and estoppel claims failed because any promises to pay were honoured according to the contractual obligations found by...

Court Disposition

Appeal dismissed with costs

Orders

  • ['Appeal dismissed with costs']