Jacques v S & J Harris Building Services Pty Ltd [2023] NSWCATAP 10

Jacques v S & J Harris Building Services Pty Ltd [2023] NSWCATAP 10

The appeal failed because the Senior Member correctly interpreted and applied cl.14 of the cost plus contract: the $750,000 figure was only an estimated cost, not a fixed contract sum, cl.14(e) was not dependent on proof of actual loss or on comparison with the total amount paid, and the written November Agreement satisfied the contractual requirement for a written variation reducing the Builder's scope of works. The Senior Member also considered the Rescue U Plumbing evidence, identified its deficiencies, and was entitled to give it little weight; no House v The King error, error of law, or basis for leave to appeal was established.

Jurisdiction
Australia
Judgment Date
19 January 2023
Procedural Posture
Internal Appeal in Home Building Proceedings / Appeal From Orders of the NSW Civil and Administrative Tribunal, Consumer and Commercial Division
Outcome
Appeal dismissed; first instance orders affirmed with a proviso concerning the time for compliance with Order 2; appellant ordered to pay the respondent's costs of the appeal on the ordinary basis.
Legal Topics
['cost Plus Building Contract' 'contract Interpretation' 'variations and Omissions From Scope of Works' 'exercise of Discretion on Appeal' 'weight of Expert Evidence' 'costs of Appeal']
['home Building' 'contract Law' 'civil Procedure'] ['cost Plus Building Contract' 'contract Interpretation' 'variations and Omissions From Scope of Works' 'exercise of Discretion on Appeal' 'weight of Expert Evidence' 'costs of Appeal']

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

Internal Appeal in Home Building Proceedings / Appeal From Orders of the NSW Civil and Administrative Tribunal, Consumer and Commercial Division

Legal Issues

  1. 1 ['Whether the Senior Member misinterpreted cl.14 of the cost plus building contract concerning compensation for deletion or omission of work.' "Whether the Senior Member erred in finding that items of work were within the Builder's scope of works and were removed by the Homeowner." 'Whether the Senior Member made a House v The King error by failing to take into account or give proper weight to the Rescue U Plumbing report and oral evidence about waterproofing and sealing defects.' 'Whether leave to appeal should be granted for any non-question of law ground.' "Whether the appellant should pay the respondent's costs of the appeal."]

Ratio Decidendi

The appeal failed because the Senior Member correctly interpreted and applied cl.14 of the cost plus contract: the $750,000 figure was only an estimated cost, not a fixed contract sum, cl.14(e) was not dependent on proof of actual loss or on comparison with the total amount paid, and the written November Agreement satisfied the contractual requirement for a written variation reducing the Builder's scope of works. The Senior Member also considered the Rescue U Plumbing evidence, identified its deficiencies, and was entitled to give it little weight; no House v The King error, error of law, or basis for leave to appeal was established.

Court Disposition

Appeal dismissed; first instance orders affirmed with a proviso concerning the time for compliance with Order 2; appellant ordered to pay the respondent's costs of the appeal on the ordinary basis.

Orders

  • ['Appeal is dismissed.' 'The conditional stay order made on 14 July 2022, Order 10, is lifted.' "The appellant must pay the respondent's legal costs of the appeal on the ordinary basis." 'The orders made at first instance are affirmed with the proviso that if the parties cannot agree on the time by which order 2 is...