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Fraser Lyne Constructions Pty Ltd v Waba [2025] NSWSC 600 | Case summary | Zoe

NSWNSWSC

Fraser Lyne Constructions Pty Ltd v Waba

[2025] NSWSC 600

Supreme Court of NSW|2025-06-18|Before: Peden J

View on NSW CaselawOr email me a plain-English summary of this case

General information, not legal advice.

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2025-06-18

Before

Peden J

Catchwords

CONTRACTS — Termination — Whether parties agreed to terminate
building contract CONTRACTS — Remedies — Damages
— Proof of loss or damage — Whether plaintiff entitled to loss of
bargain damages

Source

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Catchwords

CONTRACTS — Termination — Whether parties agreed to terminatebuilding contract CONTRACTS — Remedies — Damages— Proof of loss or damage — Whether plaintiff entitled to loss ofbargain damagesfollowing defendant’s alleged repudiation — Whereplaintiff has failed to adduce precise evidence of quantum of lossof bargaindamages

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Fraser Lyne Constructions Pty Ltd v Waba [2025] NSWSC 600

Date of orders: 18 June 2025

Decision date: 18 June 2025

Jurisdiction: Equity - Technology and Construction List

Before: Peden J

Decision: At [71]

Catchwords: CONTRACTS — Termination — Whether parties agreed to terminate building contract
CONTRACTS — Remedies — Damages — Proof of loss or damage — Whether plaintiff entitled to loss of bargain damages following defendant’s alleged repudiation — Where plaintiff has failed to adduce precise evidence of quantum of loss of bargain damages

Legislation Cited: Home Building Act 1989 (NSW)

By July 2021, Dr Waba had approached architects Collins W Collins to prepare drawings for a residential dwelling on his land.
On 15 October 2021, Dr Waba, Mr Derek Collins and Mr Lyne met on site and discussed the project. I accept that Dr Waba had no building experience and relied on the expertise of Mr Collins and Mr Lyne in drafting appropriate plans and construction matters.
Mr Collins’ drawings went through various versions. On 6 January 2022, version issue K was submitted to the Port Macquarie Hastings Council for development approval.
On 6 March 2022, Fraser Lyne provided Dr Waba a pricing estimate of $867,481.88 “purely for council only. This is not an indication of costings”. The basis of that estimate was not in evidence.
On 14 March 2022, the Council granted development application approval.
On 23 March 2022, Dr Waba requested that Fraser Lyne organise Home Owner Warranty Insurance. However, that needed to wait until Fraser Lyne had completed another project, because at the time it did not have sufficient capacity for further insurance liability.
On 7 April 2022, the construction certificate was issued. On the same day, Fraser Lyne provided Dr Waba with a draft HIA standard form “costs plus contract.” Mr Lyne had not completed many details, but asked Dr Waba to do so, and indicated he would the “complete contract for your bank”. Mr Lyne’s claim in cross-examination that he did not “actually know why the word ‘bank’ is there” in his email was not plausible. Neither do I accept Mr Lyne’s assertion that it was only in September 2022 that he “was starting to find out” that Dr Waba was using bank funds for the construction, as Mr Lyne’s own documents are to the contrary.
I consider that by April 2022, Dr Waba had communicated to Mr Lyne that he was borrowing money from his bank for the construction costs and his funding was limited. This is consistent with other evidence:
Mr Lyne included in the draft contract he sent to Dr Waba “please advise” next to “lending body” in the contract.
Mr Lyne sent an email on 11 April 2022 to various trades stating “the client wants indicative costs for the bank.”
On 14 April 2022, Dr Waba and Mr Lyne exchanged text messages about the bank’s requirements:

There are important features of this document:
It repeats the assertion that trades would not quote, despite Mr Lyne both actively seeking them and receiving them around that time, and Mr Lyne accepting that fact was untrue. He did not explain why he made that incorrect statement in his minutes.
It refers to a change from a “quote” to an estimate. However, Dr Waba’s 5 January 2023 message clearly sought a “quote”. Mr Lyne understood the bank could be satisfied for funding, if there was a quote. That is also consistent with Mr Lyne providing Dr Waba a document styled “quotation” in February 2023, discussed further below.
Further, the reference to changing from a quote to an estimate makes little sense, in circumstances where Fraser Lyne’s case was always that no fixed price could be given. This statement together with the unexplained August 2023 date leads me to conclude that the document was a re-creation after the event to assist Fraser Lyne, because all the other documentary evidence at the time indicated the parties were discussing a quote.
As he had indicated to Mr Cheng in his December 2022 email, during January 2023, Mr Lyne was in the process of obtaining quotes from trades for the November 2022 approved plans. Those quotes would be necessary for Fraser Lyne to provide Dr Waba with a quote, as requested.
In February 2023, Mr Lyne did provide Dr Waba with a document entitled “Proposal” and “Quote valid for 30 days” which was dated 16 February 2023. That document was described as an “estimate [of $3,167,606.42, including GST, but not builder’s margin] … based on the plans and documents provided”. It was said to “represent a ballpark figure only”.
Further, the document attached Fraser Lyne’s standard terms and conditions.
There was some debate about when that document was created and when it was provided to Dr Waba. Mr Lyne’s affidavit evidence was that he talked through the document with Dr Waba on 7 February 2023, which he had sent to Dr Waba on 6 February 2023. However, he did not put that email into evidence. Dr Waba agreed with the date of the meeting being 7 February 2023. Oddly, Mr Lyne’s evidence was that the correct date of the document was 6 February 2023, and “not 18 May 2023”, even though there is no document in evidence with that May date. Fraser Lyne did not rely on any documentary record or minutes of meeting to assist with accurate dating of the document. I consider it more likely that the document was created through a software system on the date it bears, which is 16 February 2023, and it was discussed by Mr Lyne and Dr Waba around then. That also makes sense in circumstances where even the week before 16 February, Mr Lyne was obtaining quotes from trades, which would likely have been used to create the document.
I do not accept that I should infer that the document was created on 6 February 2023. Mr Lyne said on 7 February 2023 he suggested to Dr Waba the possibility of reducing the price down to $2,500,000, and for that reason he was seeking quotes in the week thereafter to achieve that outcome. However, none of the emails Mr Lyne sent to trades in the week before 16 February 2023 indicated that he was looking for a lower price. Instead, it appeared in one email to an electrician that Mr Lyne was seeking a first quotes for Dr Waba’s job and another new job. The emails include no text indicating what was being sought from the recipient trades, including for example, a quote or an estimate. Further, the emails to trades somewhat confusingly attached different drawings, namely either “Rev N” or “Rev R”. However, if Mr Lyne’s estimate was created on 16 February 2023, then it would seem likely he included the quotes he had been seeking up to that date in his estimate.

Apparently in compliance with that request for a lawyer’s letter, on 22 March 2023, Dr Waba’s solicitor sent Fraser Lyne a very short email stating that Dr Waba “does not wish to proceed with the Contract dated 6 July 2022 especially in light of the new amended quotation provided by you”. Mr Lyne accepted in cross-examination that “if we were to exit out of the insurance, we needed, yeah, legal”. He provided no explanation as to why it would otherwise have been necessary to receive a lawyer’s letter.
It was only after that time, it appears Fraser Lyne obtained legal advice and sought to enforce the $3 million plus “quotation” or estimate, and demanded compliance with terms of the July 2022 contract concerning funding of the larger costings.
Fraser Lyne also issued an invoice to Dr Waba on 28 April 2023 for $8,250.00 for 75 hours at the contractual hourly rate of $100.00 (excluding GST) for Mr Lyne’s time in attending meetings. I consider this invoice is equivocal evidence for either party; while it may have evidenced an intention to affirm the contract, it may also indicate compliance with the agreement to terminate alleged by Dr Waba, which required that he pay for Fraser Lyne’s wasted expenses.
It was not made clear how the February 2023 estimate was enforceable as part of the July 2022 contract. The contract specified the works to be completed were the approved March 2022 plans. The February 2023 estimate did not relate to those earlier plans, but rather the November 2022 approved plans.
Mr Lyne had stated that the November 2022 plans did not amount to a variation under the July 2022 contract. Perhaps for that reason, the contractual clause 17 process for a variation was not invoked. That process required variations to be in writing and signed by the builder and the owner. Where the owner sought a variation, the builder was to reply with a signed written offer to carry out the variation, which had to be accepted by the owner within 5 working days. None of that occurred.
Instead, I consider the parties had abandoned the contract and were in the process of working out a new contract for the newer plans. The process they were following was the same as for the formation of the July 2022 contract:
First, the plans were approved by council in late November 2022.
Then, in early January 2023, Dr Waba sought a “quote” for the new plans to be built.
Then, Fraser Lyne provided an estimate and contract terms. I note that Mr Lyne’s evidence was that he provided a hard copy of the February 2023 estimate to Dr Waba and discussed it. Had the July 2022 contract been on foot, then there would have been no reason for Mr Lyne to attach his standard terms and conditions to the quotation, as they were the same as those in the July 2022 contract. While Mr Lyne produced the estimate with software which he said automatically attached his terms and conditions, he could have removed them from the hard copy he provided Dr Waba, had they not been necessary because the July 2022 contract was still on foot.
What might then have occurred was the signing of a new contract, that specified the particular works to be built by reference to particular plans.
For completeness, I do not accept Fraser Lyne’s submission that Dr Waba must be held to his pleading that the July 2022 contract was terminated on 6 March 2023. Instead, as Fraser Lyne’s counsel appropriately conceded, it was necessary to consider all the words and conduct of the parties at the relevant time in order to determine if there was a contract or not and the terms of any such contract: see eg Long Spring Pty Ltd v RD Beechworth Pty Ltd [2025] NSWSC 437 at [34]-[36] (Peden J) and authorities referred to. I have considered those matters above.
In conclusion, I consider that the parties agreed to terminate the July 2022 contract, as evidenced by Dr Waba’s version of the conversations and the parties’ conduct. Dr Waba agreed to pay Fraser Lyne’s wasted expenditure under the contract, which was then sought in Fraser Lyne’s invoice for $8,250. Therefore, I do not accept that either party repudiated the contract.

Mr Seeto provided no detail about what experience he was referring to, or why he considered other projects “similar” or worthy of comparison and in what ways. Nor did he identify when those other projects were carried out, in order to compare the relative costs at different times.
Further, Mr Seeto provided no indication of any reference material generally relied upon by quantity surveyors to form the basis of his calculations. For example, as Dr Waba’s counsel noted, Mr Seeto did not indicate that he relied on any industry standards such as the Rawlinsons Construction Cost Guide. Mr Seeto did not identify the square meterage of any component of the planned building, nor the quantity of materials necessary, nor how he had determined the relevant prices. Mr Seeto also identified a weakness in his own report, being that he had not been provided with construction drawings and was dependent upon the development application drawings only, which provided him with limited detail.
Secondly, Mr Seeto did not annex to his report any of the material with which he was briefed. He was unable to identify in the witness box the version of the document he referred to in his report as a Fraser Lyne “6 February 2023 estimate”. I accept that because Mr Seeto carried out his own estimates, and did not rely on Fraser Lyne’s estimate, it may not matter which version he had seen. However, the lack of precision does not instil confidence. More serious is the fact that Mr Seeto did not identify with clarity which approved plans he had used in making his estimates. There were various versions in the court book, and various versions including incomplete versions of the 6 July 2022 contract. More precision would be expected for something essential to the reliability of the evidence.
Thirdly, Mr Seeto provided his estimates based on “high level costs” and also a “high standard or specification of finish fit out”, without identifying what those phrases meant and what other standards might have been used and how they might have affected his estimates. Dr Waba’s unchallenged evidence was that he wanted to “go with basic [fittings] … if I need to upgrade it along the line, then I will do that”. In an attempt to deal with this inconsistency between the evidence and the assumption provided to Mr Seeto, counsel for Fraser Lyne suggested that when assessing the appropriate damages, I could exclude all line items that concern “PC items”. However, even if that approach was adopted, Mr Seeto had not made it clear what “high level costs” were and whether they were incorporated into all parts of the estimates, even those beyond “fit out” or PC items.
On the contingency that I did not accept Mr Seeto’s evidence, in closing oral submissions, counsel for Fraser Lyne suggested that I could have regard to Fraser Lyne’s estimate provided before entry into the 6 July 2022 contract and listed as a contractual document. However, I do not accept that estimate ought to be taken as reliable evidence of the likely cost of construction in order to assist Fraser Lyne with its damages claim. Mr Lyne consistently resisted a fixed price contract, and Fraser Lyne’s counsel indicated that prices could go up or down with a costs plus contract.
Further, I do not accept that Mr Lyne is an expert quantity surveyor, nor does he give any evidence that he had given similar estimates in the past, despite having been in the building industry since 2007 when he started as an apprentice. As with Mr Seeto, he did not indicate what objective criteria he had used to create his estimate. In cross-examination, Mr Lyne accepted that “We knew the – the base rate, but we didn’t have final specifications”. Further, as noted above when he sought trade quotes, Mr Lyne had provided various versions of the plans, and it is not evident which plans he used in creating his own estimate. I do not consider that he regarded the estimate to be accurate, and nor do I.
It was always incumbent on Fraser Lyne to prove its case, including as to the quantum of damages. That must have been appreciated, as the report of Mr Seeto was served. A distinction may be drawn between “a case where a plaintiff cannot adduce precise evidence of what has been lost and a case where, although apparently able to do so, the plaintiff has not adduced such evidence”: Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10 at [38] (Placer) (Hayne J, Gleeson CJ, McHugh and Kirby JJ agreeing).
The present case does not fall into the former category, where “guesswork may be necessary in assessing the damages to be allowed”: Placer at [38]. Instead, for the reasons above, it falls into the latter category: damages are susceptible of evidentiary proof, but the plaintiff has not adduced precise evidence of the loss suffered.
In such a situation, “[j]ustice does not dictate that … a figure should be plucked out of the air”: Troulis v Vamvoukakis [1998] NSWCA 237 at 14 (Gleeson CJ, Mason P and Stein JA agreeing). Rather, where “the evidence called by the plaintiff fails to provide any rational foundation for a proper estimate of damages the court should simply decline to make one”: Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 (Schindler) at 319 (Pincus J); see also discussion in McCrohon v Harith [2010] NSWCA 67 at [118]-[128] (McColl JA, Campbell JA and Handley AJA agreeing) and especially [120]-[122] (noting the approval of the proposition from Schindler).