Modern Building Solutions Pty Ltd v Fine Touch Pty Ltd [2021] NSWDC 451

Modern Building Solutions Pty Ltd v Fine Touch Pty Ltd [2021] NSWDC 451

The Court preferred the evidence of Mr Philip Makrys over that of Irek and Matthew Kaminski. The payment history, progress invoices calculated by reference to percentages of $187,000, the cheque and handwritten notations, and the 21 December 2017 meeting document supported a finding that the initial hourly arrangement ended after invoice 244 and that the parties agreed on 15 August 2017 to a fixed price contract of $170,000 plus GST, later adjusted and finalised. The plaintiff accepted the final outstanding amount of $45,100, which was paid, so the plaintiff failed to establish the alleged unpaid hourly-rate entitlement.

Jurisdiction
Australia
Judgment Date
12 May 2021
Procedural Posture
Civil Action for Damages for Breach of Contract / Principal Judgment After Hearing
Outcome
Judgment for the Defendant.
Legal Topics
['breach of Contract' 'building Work Subcontract' 'hourly Rate or Day Labour Agreement' 'fixed Price Contract' 'contract Variations' 'accord and Satisfaction' 'conflict of Evidence']
['contract Law' 'building and Construction' 'civil Procedure'] ['breach of Contract' 'building Work Subcontract' 'hourly Rate or Day Labour Agreement' 'fixed Price Contract' 'contract Variations' 'accord and Satisfaction' 'conflict of Evidence']

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Procedural Posture

Civil Action for Damages for Breach of Contract / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the plaintiff's work for the defendant on the St Patrick's Green project was to be paid on an hourly/day labour basis or under a fixed price contract varied from time to time." 'Whether an agreement was reached on 15 August 2017 for a fixed price of $170,000 plus GST for the relevant painting works.' 'Whether later meetings and payments, including the payment of $45,100 on 21 December 2017, resolved the amount outstanding or amounted to accord and satisfaction.']

Ratio Decidendi

The Court preferred the evidence of Mr Philip Makrys over that of Irek and Matthew Kaminski. The payment history, progress invoices calculated by reference to percentages of $187,000, the cheque and handwritten notations, and the 21 December 2017 meeting document supported a finding that the initial hourly arrangement ended after invoice 244 and that the parties agreed on 15 August 2017 to a fixed price contract of $170,000 plus GST, later adjusted and finalised. The plaintiff accepted the final outstanding amount of $45,100, which was paid, so the plaintiff failed to establish the alleged unpaid hourly-rate entitlement.

Court Disposition

Judgment for the Defendant.

Orders

  • ['Judgment for the defendant against the plaintiff.' "The plaintiff is to pay the defendant's costs."]