Nayak v Rockwall Constructions Pty Ltd [2017] NSWCATAP 18

Nayak v Rockwall Constructions Pty Ltd [2017] NSWCATAP 18

The owners were not denied procedural fairness because the quantum meruit claim was clearly raised at the hearing, the Tribunal Member invited any claim of surprise, counsel for the owners did not seek an adjournment or state an inability to meet the case, and later submissions did not seek reopening or identify prejudice. Variation 1 was supported by evidence from which the Tribunal Member could find extra work outside the contract, owner knowledge and agreement, and fair and reasonable value, but the amount had to be recalculated using a 15% margin and crediting $20,000 paid, producing $46,070.63. The awards for Variations 3 and 4 could not stand because the fact that the contractor...

Jurisdiction
Australia
Judgment Date
30 January 2017
Procedural Posture
Internal Appeal From a Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal in a Home Building Dispute / Appeal Panel Decision
Outcome
Appeal allowed in part; leave to appeal on grounds 7 and 8 refused; first instance monetary order set aside and replaced with an order that the owners pay $46,070.63; no order as to appeal costs; costs issue at first instance remitted.
Legal Topics
['home Building Contract' 'variations' 'quantum Meruit' 'procedural Fairness' 'leave to Appeal' 'costs']
['building and Construction' 'contract Law' 'restitution' 'civil Procedure'] ['home Building Contract' 'variations' 'quantum Meruit' 'procedural Fairness' 'leave to Appeal' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Internal Appeal From a Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal in a Home Building Dispute / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal Member erred by allowing the contractor to rely on quantum meruit although it was not pleaded in the amended points of claim.' 'Whether the owners were denied procedural fairness by the quantum meruit claim being raised at the hearing.' 'Whether the evidence established fair and reasonable value for quantum meruit in relation to Variation 1.' 'Whether the Tribunal Member erred in applying Fink v Fink to assessment of a quantum meruit claim.' 'Whether the evidence established fair and reasonable value for quantum meruit in relation to Variations 3 and 4.' 'Whether leave to appeal should be granted on grounds that the decision was not fair and equitable or was against the weight of evidence.']

Ratio Decidendi

The owners were not denied procedural fairness because the quantum meruit claim was clearly raised at the hearing, the Tribunal Member invited any claim of surprise, counsel for the owners did not seek an adjournment or state an inability to meet the case, and later submissions did not seek reopening or identify prejudice. Variation 1 was supported by evidence from which the Tribunal Member could find extra work outside the contract, owner knowledge and agreement, and fair and reasonable value, but the amount had to be recalculated using a 15% margin and crediting $20,000 paid, producing $46,070.63. The awards for Variations 3 and 4 could not stand because the fact that the contractor...

Court Disposition

Appeal allowed in part; leave to appeal on grounds 7 and 8 refused; first instance monetary order set aside and replaced with an order that the owners pay $46,070.63; no order as to appeal costs; costs issue at first instance remitted.

Orders

  • ['Leave to appeal on ground of appeal 7 is refused.' 'Leave to appeal on ground of appeal 8 is refused.' 'Appeal allowed in part in relation to Variation 1.' 'Appeal allowed in relation to Variation 3.' 'Appeal allowed in relation to Variation 4.' 'Set aside order 1 made on 23 March 2016 and otherwise order:...