Al-Atabi v Zaidi [2009] NSWCA 433

Al-Atabi v Zaidi [2009] NSWCA 433

The objective evidence supported the primary judge's finding that the retaining wall and OSD tank work was included in the $1.1 million Lump Sum Contract, including because the relevant drainage plan was received before the contract, later documentation was available before the amended progress payment schedule was signed, and the contract price did not change. The Variation Advice therefore did not establish a variation. In any event, the required cl 12 notice was not given before the work, and because the work was required by the contract there was no room for recovery under Liebe v Molloy or quantum meruit.

Jurisdiction
Australia
Judgment Date
23 December 2009
Procedural Posture
Contract Appeal Concerning Building Work and Claimed Variations / Appeal From District Court Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
['construction and Interpretation of Contracts' 'lump Sum Building Contract' 'variations' 'waiver of Contractual Variations Procedure' 'implied or Express Contract' 'quantum Meruit']
['contracts' 'building and Construction'] ['construction and Interpretation of Contracts' 'lump Sum Building Contract' 'variations' 'waiver of Contractual Variations Procedure' 'implied or Express Contract' 'quantum Meruit']

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Procedural Posture

Contract Appeal Concerning Building Work and Claimed Variations / Appeal From District Court Judgment

Legal Issues

  1. 1 ['Whether work claimed in the Variation Advice relating to the retaining wall, OSD tank, piers and ground slab was part of the work covered by the lump-sum contract or a variation.' 'Whether the respondents waived compliance with cl 12 of the Lump Sum Contract.' 'Whether the Variation Advice constituted or evidenced a valid variation under cl 12 of the Lump Sum Contract.' 'Whether the work was the subject of an implied or express contract entitling the appellant to reasonable remuneration under Liebe v Molloy.']

Ratio Decidendi

The objective evidence supported the primary judge's finding that the retaining wall and OSD tank work was included in the $1.1 million Lump Sum Contract, including because the relevant drainage plan was received before the contract, later documentation was available before the amended progress payment schedule was signed, and the contract price did not change. The Variation Advice therefore did not establish a variation. In any event, the required cl 12 notice was not given before the work, and because the work was required by the contract there was no room for recovery under Liebe v Molloy or quantum meruit.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']