Built Interiors Pty Ltd v Three Dinosaurs Pty Ltd & Anor

[2003] NSWCA 290

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Building contracts
3. › Variations
4. › Contractual procedures for claiming variations
5. › Whether builder entitled to payment where contractual variation procedures not followed
6. › Whether contract varied by oral arrangements
1. Restitution
2. › Quantum meruit
3. › Building contracts
4. › Claim for work done under existing contract
5. › Whether restitutionary recovery available where enforceable contract covers the situation
1. Evidence
2. › Jones v Dunkel
3. › Failure to call witness
4. › Witness available to either party
5. › Whether inference properly drawn against party bearing onus
1. Appeal
2. › Fresh evidence on appeal
3. › Whether evidence available at trial
4. › Whether evidence likely to affect result
5. › Akins v National Australia Bank test

Quick Take

A builder who fails to follow contractual procedures for claiming variations (requiring written instruction and approval by the architect) has no direct contractual entitlement to payment and cannot recover in quantum meruit or unjust enrichment where the work is part and parcel of the contract works and an enforceable contract covers the situation. Where an architect is available to both parties but not called, Jones v Dunkel inferences may be drawn against whichever party bears the onus on the particular issue.