Wright v Foresight Constructions Pty Ltd [2011] NSWCA 327

Wright v Foresight Constructions Pty Ltd [2011] NSWCA 327

An oral variation to a written residential building contract, though unenforceable by the builder due to statutory requirements, remains legally effective such that owners who agreed to the variation are bound and cannot claim damages for breach of the original specification. Additionally, costs orders should not be imposed on a person not a proper party to the relevant proceeding, and to the extent this occurred, the order was set aside.

Jurisdiction
Australia
Judgment Date
26 October 2011
Procedural Posture
Judicial Review / Appellate Judgment
Outcome
Application to review District Court judgment dismissed with costs (except as to set aside part of costs order as against Desiree Wright)
Legal Topics
['oral Contract Variation' 'statutory Interpretation' 'costs Orders' 'enforceability of Contracts' 'application of Home Building Act 1989 (nsw)']
['contract Law' 'civil Procedure' 'building and Construction Law'] ['oral Contract Variation' 'statutory Interpretation' 'costs Orders' 'enforceability of Contracts' 'application of Home Building Act 1989 (nsw)']

Case Brief

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Procedural Posture

Judicial Review / Appellate Judgment

Legal Issues

  1. 1 ['Whether an oral variation of a written residential building contract is effective and enforceable under the Home Building Act 1989 (NSW)' 'Whether the District Court (on appeal from the Tribunal) erred in law regarding costs orders, particularly relating to a party not a proper subject of the costs order']

Ratio Decidendi

An oral variation to a written residential building contract, though unenforceable by the builder due to statutory requirements, remains legally effective such that owners who agreed to the variation are bound and cannot claim damages for breach of the original specification. Additionally, costs orders should not be imposed on a person not a proper party to the relevant proceeding, and to the extent this occurred, the order was set aside.

Court Disposition

Application to review District Court judgment dismissed with costs (except as to set aside part of costs order as against Desiree Wright)

Orders

  • ["The order of the District Court with respect to the costs in the Tribunal be set aside insofar as it required Desiree Wright to pay any part of the builder's costs in the Tribunal." 'Subject to order (1), dismiss the application to review the judgment of the District Court of 18 March 2011.' 'Order that Adam...