Beecraft Pty Ltd v Tudor;Tudor v Beecraft Pty Ltd [2021] NSWCATCD 119

Beecraft Pty Ltd v Tudor;Tudor v Beecraft Pty Ltd [2021] NSWCATCD 119

Neither party established a valid or enforceable August 2018 variation because any cost plus arrangement was reached orally at the 28 August 2018 meeting and was not signed or otherwise compliant with the contract and the Home Building Act 1989 (NSW), and the owners' asserted varied contract price was likewise not supported by a signed enforceable variation or subsequent conduct. The builder could recover on a quantum meruit basis, but the Tribunal preferred Mr Seeto's reasoned quantity surveying assessment over Mr Pickering's verification of the builder's cost lists, resulting in a reasonable value of $1,229,124.18. Because the owners had paid $1,270,810, they were entitled to a refund...

Jurisdiction
Australia
Judgment Date
13 December 2021
Procedural Posture
Residential Building Claim in the Consumer and Commercial Division Concerning Building Work at the Owners' Home in Wahroonga / Principal Judgment After Hearing of Builder's Application and Owners' Cross Application
Outcome
The builder's application in HB 20/52532 was dismissed, and the owners' cross-application in HB 21/12757 succeeded in part with a money order for $44,985.82 against the builder.
Legal Topics
['residential Building Work' 'contract Variation' 'cost Plus Arrangement' 'quantum Meruit' 'defective Work' 'home Building Act Statutory Warranties' 'costs']
['building and Construction' 'consumer and Commercial' 'contract Law'] ['residential Building Work' 'contract Variation' 'cost Plus Arrangement' 'quantum Meruit' 'defective Work' 'home Building Act Statutory Warranties' 'costs']

Case Brief

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Procedural Posture

Residential Building Claim in the Consumer and Commercial Division Concerning Building Work at the Owners' Home in Wahroonga / Principal Judgment After Hearing of Builder's Application and Owners' Cross Application

Legal Issues

  1. 1 ['Whether the May 2018 fixed price contract was validly or enforceably varied in August 2018 to vary the scope of works and contract price or to become a cost plus arrangement' 'If there was no enforceable variation, what amount the builder was entitled to recover on a quantum meruit basis' 'Whether the owners established alleged defective work and, if so, whether a work order or money order should be made' 'Whether costs should be addressed following the outcome of the applications']

Ratio Decidendi

Neither party established a valid or enforceable August 2018 variation because any cost plus arrangement was reached orally at the 28 August 2018 meeting and was not signed or otherwise compliant with the contract and the Home Building Act 1989 (NSW), and the owners' asserted varied contract price was likewise not supported by a signed enforceable variation or subsequent conduct. The builder could recover on a quantum meruit basis, but the Tribunal preferred Mr Seeto's reasoned quantity surveying assessment over Mr Pickering's verification of the builder's cost lists, resulting in a reasonable value of $1,229,124.18. Because the owners had paid $1,270,810, they were entitled to a refund...

Court Disposition

The builder's application in HB 20/52532 was dismissed, and the owners' cross-application in HB 21/12757 succeeded in part with a money order for $44,985.82 against the builder.

Orders

  • ['In HB 20/52532: The application is dismissed by reason of the orders made in the related proceedings (HB 21/12757).' 'In HB 20/52532: Any submissions as to costs are to be included in submissions made in those related proceedings.' 'In HB 21/12757: The respondent (builder) is to pay the applicants (owners)...