Phan Building Services Pty Ltd v Dang [2016] NSWCATAP 51

Phan Building Services Pty Ltd v Dang [2016] NSWCATAP 51

The Tribunal was correct in rejecting Phan's quantum meruit claim because the appellant failed to provide evidence establishing the value of the work it actually performed as opposed to the overall value of construction, which precluded the assessment necessary for restitution. The costs order was properly made because Phan was warned of the unenforceability of the oral variation but persisted with the claim, and there was no error or miscarriage of justice in the Tribunal's exercise of discretion.

Jurisdiction
Australia
Judgment Date
23 February 2016
Procedural Posture
Appeal / Application for Leave to Appeal and Merits of Appeal
Outcome
Leave to appeal refused and appeal dismissed (both principal and costs decisions)
Legal Topics
['quantum Meruit' 'contract Variation' 'leave to Appeal' 'costs Orders']
['building and Construction Law' 'civil Procedure'] ['quantum Meruit' 'contract Variation' 'leave to Appeal' 'costs Orders']

Case Brief

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Procedural Posture

Appeal / Application for Leave to Appeal and Merits of Appeal

Legal Issues

  1. 1 ['Whether the Tribunal erred in refusing quantum meruit recovery due to lack of proof of work performed by the appellant' 'Whether the Tribunal erred in its assessment of entitlement to payment and consideration of submitted invoices, including invoice R13' 'Whether the costs order constituted a miscarriage of justice warranting leave to appeal']

Ratio Decidendi

The Tribunal was correct in rejecting Phan's quantum meruit claim because the appellant failed to provide evidence establishing the value of the work it actually performed as opposed to the overall value of construction, which precluded the assessment necessary for restitution. The costs order was properly made because Phan was warned of the unenforceability of the oral variation but persisted with the claim, and there was no error or miscarriage of justice in the Tribunal's exercise of discretion.

Court Disposition

Leave to appeal refused and appeal dismissed (both principal and costs decisions)

Orders

  • ['Leave to appeal is refused and the appeal is dismissed, both in respect of the principal decision and the costs decision.' "Should either party seek costs of the appeal, an application and supporting submissions are to be filed within 14 days of the publication of this decision; any submissions in reply are to be...