Hayward v Timilty [2009] NSWDC 54

Hayward v Timilty [2009] NSWDC 54

The contract between the parties was a costs plus contract, not a fixed price contract. The estimates provided were not representations as to a maximum price; there was no evidence of fraud, civil or criminal, or misleading or deceptive conduct by Timilty. The contract substantially complied with the Home Building Act 1989 and was enforceable; the plaintiffs are not entitled to relief for overpayments or restitution beyond amounts considered in the Scott Schedules. The builder is entitled to payment for work done, with the contract subject to adjustments per the schedules.

Jurisdiction
Australia
Judgment Date
23 January 2009
Procedural Posture
Civil / Judgment
Outcome
Both plaintiff and defendant have succeeded in part, subject to adjustments required by the Scott Schedules; the parties are to bring in short minutes of orders reflecting those adjustments.
Legal Topics
['home Building Act' 'interpretation of Cost Plus Contract' 'misleading and Deceptive Conduct' 'quantum Meruit' 'fixed Price Vs. Cost Plus Contracts' 'contract Enforceability' 'false and Misleading Representations' 'statutory Warranties' 'variation and Restitution']
['building and Construction' 'contract Law' 'consumer Law'] ['home Building Act' 'interpretation of Cost Plus Contract' 'misleading and Deceptive Conduct' 'quantum Meruit' 'fixed Price Vs. Cost Plus Contracts' 'contract Enforceability' 'false and Misleading Representations' 'statutory Warranties' 'variation and Restitution']

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Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 ['Whether the contract between the Haywards and Timilty was a fixed price contract or a costs plus contract' 'Whether the contract complied with the requirements of the Home Building Act 1989 and is enforceable' 'Whether representations made by Timilty were misleading or deceptive and induced the contract' 'Entitlement to restitution or quantum meruit in absence of enforceable contract' 'Assessment of overpayments and validity of claims by both parties']

Ratio Decidendi

The contract between the parties was a costs plus contract, not a fixed price contract. The estimates provided were not representations as to a maximum price; there was no evidence of fraud, civil or criminal, or misleading or deceptive conduct by Timilty. The contract substantially complied with the Home Building Act 1989 and was enforceable; the plaintiffs are not entitled to relief for overpayments or restitution beyond amounts considered in the Scott Schedules. The builder is entitled to payment for work done, with the contract subject to adjustments per the schedules.

Court Disposition

Both plaintiff and defendant have succeeded in part, subject to adjustments required by the Scott Schedules; the parties are to bring in short minutes of orders reflecting those adjustments.

Orders

  • ['Verdict for plaintiff on their claim against the builder to the extent of adjustments required by the Scott Schedules.' 'Verdict for the builder on the cross-claim against the plaintiff, subject to the Scott Schedules and matters referred to in paragraph 157.' 'Parties to reconcile judgment and Scott Schedules and...