Masterglass Facades Pty Ltd v Pollak [2017] NSWCATCD 45

Masterglass Facades Pty Ltd v Pollak [2017] NSWCATCD 45

The applicant, though unlicensed and uninsured and unable to recover under the contract, is entitled to reasonable remuneration (quantum meruit) because it is just and equitable to do so—there are no major defects, work was substantially as agreed, and respondent would be unjustly enriched otherwise. The contract sum less deposit, plus an allowed variation, minus certain set-offs, represents fair value. Minor defects or additional claims are either not established or set off appropriately. Each party bears own costs.

Jurisdiction
Australia
Judgment Date
01 June 2017
Procedural Posture
Application and Cross Application (building Dispute) / Principal Judgment and Final Orders
Outcome
Partially in favour of applicant (payment ordered, some set-offs allowed); cross-claim for major defects dismissed; each party to bear own costs.
Legal Topics
['quantum Meruit' 'home Building Act Breaches' 'unlicensed Contracting' 'defective Work' 'variations' 'just and Equitable Discretion']
['building and Construction Law' 'consumer Law'] ['quantum Meruit' 'home Building Act Breaches' 'unlicensed Contracting' 'defective Work' 'variations' 'just and Equitable Discretion']

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Procedural Posture

Application and Cross Application (building Dispute) / Principal Judgment and Final Orders

Legal Issues

  1. 1 ['Whether the applicant is entitled to recover payment under a quantum meruit for supply and installation of sliding doors despite unlicensed contracting and absence of insurance under Home Building Act 1989;' 'Whether there were major or minor defects in the design or installation of the sliding doors;' 'Whether restitution or damages are payable to respondent for alleged defects or misrepresentations;' 'Whether it is just and equitable for the applicant to recover despite non-compliance with statutory licensing and insurance requirements;' 'Assessment of value of variations and minor claims for defects;']

Ratio Decidendi

The applicant, though unlicensed and uninsured and unable to recover under the contract, is entitled to reasonable remuneration (quantum meruit) because it is just and equitable to do so—there are no major defects, work was substantially as agreed, and respondent would be unjustly enriched otherwise. The contract sum less deposit, plus an allowed variation, minus certain set-offs, represents fair value. Minor defects or additional claims are either not established or set off appropriately. Each party bears own costs.

Court Disposition

Partially in favour of applicant (payment ordered, some set-offs allowed); cross-claim for major defects dismissed; each party to bear own costs.

Orders

  • ['Joseph Pollak is to pay Masterglass Facades Pty Ltd the sum of $16,136.00 (incl GST) immediately.' 'Each party shall pay their own costs of the proceedings.']