Pearce v Jamatt Constructions Pty Ltd [2018] NSWCATCD 44

Pearce v Jamatt Constructions Pty Ltd [2018] NSWCATCD 44

The Tribunal concluded, after examining the contract documents, estimates, and parties' conduct, that the agreement was a 'do and charge' (cost plus) contract and not a fixed price contract. As such, the applicants were not entitled to recover alleged overpayments or adjustments for prime cost items and variations, except for specific defects where agreement or sufficient evidence existed. The respondent was entitled to set off for an unpaid invoice, resulting in a net payable amount.

Jurisdiction
Australia
Judgment Date
16 August 2018
Procedural Posture
Consumer and Commercial Building Dispute / Principal Judgment
Outcome
Orders for payment and costs; set off of respondent's claim against applicant's judgment; partial success for applicants on defects claim, not on overpayment claim.
Legal Topics
['contract Interpretation' 'building Contracts' 'contract Variations' 'cost Plus Contracts' 'defective Works' 'damages' 'misrepresentation']
['contract Law' 'building and Construction' 'consumer Law'] ['contract Interpretation' 'building Contracts' 'contract Variations' 'cost Plus Contracts' 'defective Works' 'damages' 'misrepresentation']

Case Brief

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Procedural Posture

Consumer and Commercial Building Dispute / Principal Judgment

Legal Issues

  1. 1 ['Did the parties enter into a fixed price or cost plus (do and charge) contract?' 'Are the applicants entitled to recover monies allegedly overpaid?' 'Are the applicants entitled to damages for defective work?' 'Is the builder entitled to a set off for unpaid invoices?' 'Has there been misleading and deceptive conduct by the builder?']

Ratio Decidendi

The Tribunal concluded, after examining the contract documents, estimates, and parties' conduct, that the agreement was a 'do and charge' (cost plus) contract and not a fixed price contract. As such, the applicants were not entitled to recover alleged overpayments or adjustments for prime cost items and variations, except for specific defects where agreement or sufficient evidence existed. The respondent was entitled to set off for an unpaid invoice, resulting in a net payable amount.

Court Disposition

Orders for payment and costs; set off of respondent's claim against applicant's judgment; partial success for applicants on defects claim, not on overpayment claim.

Orders

  • ['The respondent shall pay $9816.14 to the applicants immediately.' "The respondent shall pay the applicants' costs of and incidental to the application on the ordinary basis as agreed or assessed."]