B & M Mitchell Pty Ltd v Mikell Investments Pty Ltd & Divlist Pty Ltd t/as Contemporary Homes [2018] NSWCATAP 35

B & M Mitchell Pty Ltd v Mikell Investments Pty Ltd & Divlist Pty Ltd t/as Contemporary Homes [2018] NSWCATAP 35

The contract was correctly characterised as a cost plus contract, not a fixed price contract. References to $278,000.00 in the contract were estimates. The primary findings about contract construction were unaffected by any secondary findings about concessions or variations. There was no error of law or substantial miscarriage of justice in the Tribunal's decision on strict proof of the builder's invoice.

Jurisdiction
Australia
Judgment Date
01 February 2018
Procedural Posture
Civil Appeal / Appeal Panel Decision
Outcome
Appeal dismissed
Legal Topics
['building Contract Types' 'construction of Contracts' 'procedural Fairness' 'costs']
['building and Construction Law' 'contract Law'] ['building Contract Types' 'construction of Contracts' 'procedural Fairness' 'costs']

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Procedural Posture

Civil Appeal / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the contract between the parties was a fixed price contract or a cost plus contract' 'Whether the Tribunal denied procedural fairness or natural justice to the appellant' 'Whether an error was made in accepting the builder’s invoice as accurate and genuine without supporting evidence']

Ratio Decidendi

The contract was correctly characterised as a cost plus contract, not a fixed price contract. References to $278,000.00 in the contract were estimates. The primary findings about contract construction were unaffected by any secondary findings about concessions or variations. There was no error of law or substantial miscarriage of justice in the Tribunal's decision on strict proof of the builder's invoice.

Court Disposition

Appeal dismissed

Orders

  • ['The time for the filing of the Notice of Appeal is extended to 4 October 2017' 'The appeal is dismissed' 'The order staying the operation of order 1 made on 1 September 2017 in HB 16/33023 is lifted' 'The respondents are to file and serve submissions concerning costs of the appeal within 21 days' "The appellant is...