Wykes v MS & SJ Schols Pty Ltd; MS & SJ Schols Pty Ltd v Wykes [2018] NSWCATCD 50

Wykes v MS & SJ Schols Pty Ltd; MS & SJ Schols Pty Ltd v Wykes [2018] NSWCATCD 50

The Tribunal found there was no enforceable fixed price contract or written cost plus contract; rather, a hybrid oral agreement existed for work to be performed on a cost plus basis, with a fixed price contract used solely for bank finance purposes. Neither party proved an intention to be bound by the written versions. Consequently, the Builder could not recover under any contract due to statutory formal requirements (Home Building Act 1989 s7(2)), and its entitlement lay in quantum meruit for the work performed. The Owners failed to establish their claim for damages based on the fixed price contract or for consequential losses. The Tribunal assessed the quantum meruit value of the works...

Jurisdiction
Australia
Judgment Date
30 August 2018
Procedural Posture
Home Building Dispute / Consumer and Commercial / Principal Judgment – Final Determination
Outcome
The Owners are to pay the Builder a specified sum for quantum meruit (after deduction for defects); the proceedings otherwise dismissed; subsequent costs submissions allowed per Tribunal directions.
Legal Topics
['residential Building Contracts' 'quantum Meruit' 'sham Contracts' 'statutory Warranties' 'damages for Defects']
['home Building' 'contract Law' 'restitution'] ['residential Building Contracts' 'quantum Meruit' 'sham Contracts' 'statutory Warranties' 'damages for Defects']

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Procedural Posture

Home Building Dispute / Consumer and Commercial / Principal Judgment – Final Determination

Legal Issues

  1. 1 ['What contract or contracts governed the relationship between the parties?' 'What were the circumstances in which any such contract or contracts came to an end?' 'What compensation (if any) can the Owners claim?' 'Whether the Builder is entitled under contract or quantum meruit for work performed?']

Ratio Decidendi

The Tribunal found there was no enforceable fixed price contract or written cost plus contract; rather, a hybrid oral agreement existed for work to be performed on a cost plus basis, with a fixed price contract used solely for bank finance purposes. Neither party proved an intention to be bound by the written versions. Consequently, the Builder could not recover under any contract due to statutory formal requirements (Home Building Act 1989 s7(2)), and its entitlement lay in quantum meruit for the work performed. The Owners failed to establish their claim for damages based on the fixed price contract or for consequential losses. The Tribunal assessed the quantum meruit value of the works...

Court Disposition

The Owners are to pay the Builder a specified sum for quantum meruit (after deduction for defects); the proceedings otherwise dismissed; subsequent costs submissions allowed per Tribunal directions.

Orders

  • ['Shannon John Wykes and Shannon Leigh Wykes are to pay MS & SJ Schols Pty Ltd the amount of $251,551.76 within 28 days of the date of these orders.' 'Proceedings HB 15/65625 and HB 17/05296 are otherwise dismissed.' 'Either party may file written submissions within 14 days seeking an order in relation to the costs...