Where a building owner pays a builder's invoice for work that is not a valid contractual variation under the Home Building Act 1989 (NSW), but the work is otherwise enforceable in restitution, the payment is appropriated to the restitutionary claim and cannot be re-allocated to the contractual account to reduce progress payment obligations. The characterisation of whether appropriation has occurred on uncontested facts is a question of law. Section 28(3) of the CTTT Act, requiring the Tribunal to act according to equity and good conscience, does not release the Tribunal from the obligation to apply rules of law.
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