Wright v Foresight Constructions Pty Ltd

[2011] NSWCA 327

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Building contracts
3. › Residential building contracts
4. › Variation
5. › Oral variation of written specification
6. › Whether oral variation wholly ineffective or merely unenforceable by builder
7. › Home Building Act 1989 (NSW), ss 7, 7A, 7E, 10
1. Statutory Interpretation
2. › Home Building Act 1989 (NSW)
3. › Consequences of non-compliance with writing requirements
4. › Section 10 — contract unenforceable by builder but not void
5. › Whether builder may rely on oral variation defensively
6. › Analogy with Statute of Frauds
1. Practice and Procedure
2. › Costs
3. › Variation of costs order
4. › Order set aside as against party wrongly made subject to order
5. › Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 53

Quick Take

An oral variation to a written residential building contract under the Home Building Act 1989 (NSW) is unenforceable by the builder under s 10 but is not void or wholly ineffective. The builder may rely on the oral variation defensively, and the owner cannot claim damages for the builder's failure to comply with the original written specification where the owner agreed to the variation. The position is analogous to contracts unenforceable under the Statute of Frauds.