Building and Construction Industry Security of Payment Act 1999 (NSW)
dispute as to existence of construction contract under s 4 SOPA CONTRACTS
formation
Quick Take
1Where parties indicate an intention to enter a formal contract but subsequently abandon negotiations for that document while one party performs work at the other's direction and receives payment, their conduct may constitute a waiver of the requirement for formal documentation, resulting in a binding contract on the terms of the accepted quotation.
2The identity of the contracting party is determined objectively from the parties' words and conduct, including which entity was licensed under the Home Building Act, which entity submitted quotations and payment claims, and which entity the other party consistently dealt with — a deed executed by a related unlicensed entity for security purposes does not displace that objective assessment.
3An unsigned scope of works document that is incomplete, internally inconsistent, lacks essential terms such as price, and expressly contemplates acceptance of a further subcontract agreement does not form part of the construction contract.
