Mazurek v Fisniku

Mazurek v Fisniku - [2023] NSWCATCD 81 - NSWCATCD 2023 case summary — Zoe

[7]

Relevant law

When it is necessary for a court or tribunal to determine an issue relating to the formation of the contract or its parties or its terms, that question is not determined by reference to what either of the parties thought or what they intended. Many decisions, such as that of the High Court of Australia in Taylor v Johnson [1983] HCA 5, have held that contract law is concerned not with the subjective intentions of the parties to a contract, but rather with the outward manifestations of those intentions. That is sometimes referred to as the objective theory of contract because the assessment is not made from the subjective view of either party but objectively, as if a reasonable person was considering what was said and done by both parties at the relevant time.
However, when a defence of estoppel is raised, the subjective views of the parties are relevant. As the builder's submission rely on equitable defences, it is necessary to note that the Tribunal can consider equitable defences but not equitable claims: Pongrass v Small [2021] NSWCATAP 314 at [61]-[81]. There are multiple forms of estoppel, but the two upon which the builder relies in this case are promissory estoppel and estoppel by convention.
Promissory estoppel was accepted in Australia by the High Court in Legione v Hateley [1983] HCA 11; 152 CLR 406, 420-1 (Gibbs CJ and Murphy J), 437 (Mason and Deane JJ). Following what was said by Brennan J in Waltons Stores (Interstate) Limited v Maher [1988] HCA 7; 164 CLR 387 at 428, for the builder's defence of promissory estoppel to succeed, it must be established that: 1. the owners made a promise to the builder to continue the costs plus contract; 2. the builder assumed or expected that legal relationship would continue and, in the latter case, that the owners would not be free to withdraw from that legal relationship; 3. the owners induced the builder to adopt that assumption or expectation; 4. the builder acted in reliance on that assumption or expectation; 5. the owners knew or intended that the builder would act in that manner; 6. the builder woud suffer detriment if the assumption or expectation was not fulfilled; and 7. the owners failed to act to avoid that detriment.
Estoppel by convention requires adoption by the parties of an assumption as the basis of their relationship: Dabbs v Seaman [1925] HCA26; 36 CLR 538, 549; Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Limited [1986] HCA 14; 160 CLR 226 at 244-5. In the circumstances of this case, the builder must prove that: 1. the builder adopted an assumption as to the terms of its legal relationship with the owners; 2. the owners adopted the same assumption; 3. both parties have conducted their relationship based on that assumption; 4. each party knew or intended that the other act on that basis; and 5. any departure from the assumption would occasion detriment to the builder.
For estoppel by convention, the assumption may be contrary to the actual state of affairs between the parties (Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; 59 CLR 641 at 676) and the assumption may be contrary to any contract between them (Moratic Pty Limited v Gordon [2007] NSWSC 5).
As a result, both promissory estoppel and estoppel by convention both represent a departure from the well-established starting point that parties are bound by the terms of a signed, written contract (L'Estrange v F Graucob Ltd [1934] 2 KB 394).
However, similarities between the two doctrines do not mean there are no differences. In promissory estoppel, established in the courts of equity, the focus is on the conduct of one party which renders it unconscionable to permit that party to rely on that party's rights. Conventional estoppel, created by common law courts, is based on the common understanding of the parties, and operates to hold both parties to that common understanding.
The English decision in Hadley v Baxendale (1854) 9 Exch 341 established that one of two tests for the recovery of damages for a breach of contract be met: (1) damages which may fairly and reasonably considered to arise naturally (first limb); and (2) damages which may reasonably be supposed to have been in the contemplation of both parties when the contract was made (second limb).
The right to recover damages is always subject to the requirement that the party claiming damages (the innocent party) take reasonable steps to mitigate their loss, but the onus is on the other party to show the innocent party acted unreasonably: TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd [1963] HCA 57. However, it must be noted that when an innocent party is required to take steps to mitigate, the steps required will not be set too high: Banco de Portugal v Waterlow and Sons [1932] AC 452 at 506. Where there has been a failure to mitigate loss, the damages are reduced to what they would have been had the innocent party acted reasonably: Hasell v Bagot, Shakes & Lewis Ltd [1911] HCA 62, Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 at [187].
Decisions such as Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (Makita) make it clear that, for expert evidence to be accepted (1) the opinion must clearly indicate the facts upon which it is based, (2) those facts must be proved so there is a factual basis for the opinion, (3) reasons or the process of reasoning for the opinion must be disclosed, and (4) any opinion must fall within the expert's qualifications and experience.

[9]

Lay evidence

The written lay evidence for the owners was as follows: 1. The affidavits of Ms Burgess dated 18 May 2022 (A26), 12 September 2022 (A633), and 29 March 2023 (B901). 2. The affidavits of Mr Mazurek dated 18 May 2022 (A254), 12 September 2022 (A649), and 31 March 2023 (B1031). 3. The affidavits of the owners' solicitor, Mr Tonkin dated 22 February 2022 (B882) and 29 March 2023 (B896).
The written lay evidence for the builder was: 1. The affidavit of Mr Fisniku dated 20 July 2022 (A668), which affidavit does include expert evidence. 2. A 21 April 2022 document headed "Points of Defence", signed by both Mr and Mrs Fisniku (B1037), containing evidence and submissions.
The only oral, lay evidence is the cross-examination of Mr Fisniku which covered the following matters: 1. The invoice referred to in his affidavit (A670 at [16]) should have been a reference to the document at A143, not A725. 2. The email dated 20 April 2020, referred to in his affidavit (A674 at [36]), being the document at A774, was sent to the owners and not sent by the owners. 3. The quote dated 4 May 2020 (A779) did not include a "costs plus margin of 15%", as suggested in his affidavit (A674 at [40]). 4. Mr Fisniku agreed the owners paid $5,605.25 towards the amount of $12,087.05 in invoice numbered 1069 dated 28 March 2020 (A203), which the Tribunal notes left an unpaid balance of $6,481.80, and agreed he sent an overdue notice for the full amount on 3 April 2020 (A216), but denied the evidence of Ms Burgess (B910 at [46]) that he agreed to include the unpaid balance in the first progress payment for the fixed price contract. 5. It was accepted that Mrs Fisniku, in a 20 April 20202 email (A220) included the words: "Do you need the remainder of the last invoice $6482 included in the $88,000 Fixed Price?" but denied the conversation alleged by Mr Mazurek (B1033 at [6]) which alleged that Mr Fisniku asked if that unpaid balance was to come out of the first progress payment for the fixed price contract and that Mr Mazurek told him that "is part of the lockup stage and would have to wait". 6. After noting that a 20 April 2020 email (A221) from Ms Burgess referred to the inclusion of the unpaid balance in the "first lock-up stage costing", Mr Fisniku accepted that the first progress claim invoice, being the 24 April 2020 invoice, numbered 1070, for $35,000 (A222 or A775) did not include a 15% margin. He agreed that his covering email (A776) included the words: "In this first payment is the remainder of the last invoice" but denied that the unpaid balance of the invoice numbered 1069 was included in the invoice numbered 1070. 7. In relation to those two invoices (A775 and A776), Ms Fisniku suggested they were under the costs plus contract. He accepted that he received the amount of $35,000, as evidenced by a copy of a page of his bank statement (A787). 8. It was agreed that a further invoice, numbered 1073 (A237), was sent under cover of a 24 May 2020 email (A235), and that the first item in that invoice was the $6,481.80 unpaid balance of invoice 1069. 9. After being referred to the builder's document headed "Notice of Mutual Termination of Contract" (A238), sent under cover of an email dated 5 June 2020 (A239), and to their 15 June 2020 document headed "Notice of Termination of Contract" (A241), also sent by email (A239), Mr Fisniku did not accept that there were no funds outstanding at that time. 10. It was noted that the latter notice referred to clause 29.4, which was a termination clause in the fixed price contract (A188), clause 29 in the costs plus contract (A102) referring to the service of notices, and that both the Points of Defence (A21 at 28) and the Amended Points of Defence (B877 at 28) both referred to "clause 29a)iv) of the Costs Plus Contract". Further, that the response of the builder, headed "Points of Defence" (B1037 at 3)), also referred to clause 29. 11. In that response (B1038 at 16)), it was suggested the fixed price contract was never witnessed but the owners referred Mr Fisniku to the signature page in that contract (A165). 12. It was noted that the two quotes (A060 and A62) which formed the basis of the 11 November 2019 (A77) both added a 15% margin to the cost estimate and Mr Fisniku agreed that work under that contract commenced on 18 November 2019. 13. After being questioned as to the sequence of events whereby work under the costs plus contract stopped, Mr Fisniku accepted that he provided a quotation numbered 1048 and dated 8 January 2020 for $88,000, with no 15% margin, that he signed a fixed price contract with that contract price on 28 January 2020 (A161), and that there was a payment schedule in that contract (at A169). 14. Mr Fisniku also accepted that the work covered by that contract was due to commence on 1 February 2020 (A170) which date was later varied to 1 April 2020 (A219) and that invoices issued after that date did not contain a 15% margin on costs. 15. He also agreed that, under cover of a 4 May 2020 email (A223), a further quotation, for $94,229.70 (A224) was sent to the owners but was not accepted, after which the builder did not wish to continue working under the contract. 16. While Mr Fisniku was taken to his email dated 15 June 2020 (A799), it is noted that was sent in response to an email earlier that day from the owners (A799). 17. Finally, when questioned about Jasmin, who was the owners' mortgage broker, Mr Fisniku indicated that they were close friends. He said he did not obtain a statement from her as he did not want to involve her in these proceedings.
In re-examination, Mr Fisniku said the purpose of including the unpaid balance under the costs plus contract was to claim money that was owed.

[16]

Findings of fact

Having regard to that chronology, and to the written submissions of both parties, the Tribunal makes the following findings of fact: 1. On 30 January 2019 the owners' bank approved a loan of $80,000. 2. On 11 November 2019 the parties signed a costs plus contract which contained an estimated cost of $143,754.60, did not annex or refer to any plans, and which described the work as: "Structural alteration and addition. New Bathrooms, Laundry, Kitchen and Deck." 3. On 18 November 20198 the work covered by that contract commenced. 4. On 3 January 2020 the owners advised the builder, by text message, that they were "out of money". 5. On 5 January 2020 the owners instructed the builder, by text message, to "put the build on hold for the foreseeable future". 6. On 6 January 2020 the builder's work on the site stopped. 7. In response to a request from the owners, on 8 January 2020 the builder provided them with a quotation for $88,000 "to complete structural additions as per plans and contract …". 8. Later that day, the owners replied, saying: "Thank you, it is what we need. We probably need it broken down a but more but for the purposes of giving to the bank, this is good. Thank you". 9. On 14 January 2020 the owners requested a "Fixed Price Building contract … with the staged payments detailed on it". 10. On 28 January 2020 a fixed price contract was signed by the parties and was witnessed. That contract contained the same description of the work, referred to architectural and engineering drawings dated September 2019, and amounts payable "when the following stages of the works are 95% complete": $35,000 next to the words "Lock up stage", $32,000 next to the words "Kitchen, bathroom & flooring", and $31,000 upon "Completion of all works". The sole prime cost item was "Total PC" of $5,000 and the only provisional sums specified were a rate per square metre for "Bathroom Tiles" and "Flooring Supply". The date of commencement was specified as 1 February 2020. 11. On 24 February 2020 the builder provided a further invoice on a costs plus basis, and the $1,973.70 amount of that invoice was paid by the owners on 27 February 2020. 12. On 26 February 2020 the builder sought a date for the resumption of the building work. 13. On 28 March 2020 the builder provided a further invoice, on a costs plus basis, for $12,087.05. 14. On 4 April 2020 the owners paid $5,605.25 in respect of that invoice. 15. During the period from 18 to 20 April 2020 there were meetings at which matters which included commencement date and product selections were discussed. 16. On or about 18 April 2020 it was agreed that the commencement date shown in the fixed price contract would be changed from 1 February 2020 to 1 April 2020 and that the fixed price contract would apply from that date. 17. On 20 April 2020, when the builder asked about the $6,481.80 unpaid balance of the 28 March 2020 invoice, it was suggested by the owners that amount would be "included in the first lockup stage costing". 18. On 24 April 2020 the builder issued an invoice for $35,000 which was described as "Lock up stage payment". At that time the builder was entitled to receive $6,481.80 under the costs plus contract and $35,000 under the fixed price contract. 19. On 27 April 2020 the owners provided the builder with their product selections. 20. On 4 May 2020 the builder provided a quotation for $94,229.70 and a further quotation for variations for $33,456.50. 21. On 14 May 2020 the parties signed variations for $8,529 and $6,573. 22. On 18 May 2020 the builder received $35,000 from the owners' bank. 23. On 18 May 2020 the parties met at the site. 24. On 18 May 2020 text messages were exchanged in which what the builder said included: "If you can't pay for the variations, I just can't do them. Sadly, I am wanting to walk away because I don't see this working out." 25. The owners' same day reply included the words: "It's behind us now. Sadly. Tell us what you need to Settle the bill. Really sorry this has ended this way." 26. The builder then responded: "I will go through it and send you a final bill this week". 27. On 19 May 2020 the owners instructed the builder not to release any funds to the plumber. 28. On 24 May 2020, under cover of an email which began "Here is your final invoice", the builder issued an invoice for $26,110.10 to the owners which included the $6,481.80 unpaid balance of the 28 March 2020 invoice. 29. On 24 May 2020 the owners sent the builder an email which requested that the builder return all keys to the premises. 30. On 5 June 2020 the builder sent an email to the owners which enclosed a document headed "Notice of Mutual Termination of Contract". 31. On 7 June 2020 the builder paid the owners $8,889.90, being the difference between the amount of $35,000 received on 18 May 2020 and the $26,110.10 total amount in the invoice dated 24 May 2020. 32. On 15 June 2020 the owners suggested, by email, that any termination was not mutual. 33. On 16 June 2020 the builder sent a revised "Notice of Termination of Contract" to the owners. 34. On 18 August 2020 the owners' solicitor sent a "Notice of Termination of Contract" to the builder which asserted that the builder's 16 June 2020 termination notice constituted repudiation of the fixed price contract.

[19]

How and when did that contract come to an end?

Regardless of when the fixed priced contract commenced, the 18 May 2020 text messages clearly establish that there was mutual termination of the fixed price contract on that day.
What happened is clear from the contemporaneous documents: (1) the owners sought to have matters included in the contract price, (2) the builder was not willing to include those matters unless they were variations to not only the work but also the contract price, (3) the owners accepted that and sought a final invoice, and (4) a final invoice was provided by the builder.
Even if it could be said the costs plus contract still applied, not the fixed price contract, the Tribunal's finding of mutual termination would still apply.
The Tribunal is not satisfied there was any agreed variation of the fixed price contract to include the $6,481.80 unpaid balance of the 28 March 2020 invoice with the result that it remained an unpaid amount under the costs plus contract as at 18 May 2020 when the fixed price contract terminated because claims based on entitlements which accrued prior to termination can be maintained as only subsequent rights are extinguished: McDonald v Dennys Lascelles Ltd [1933] HCA 25; 48 CLR 475 at 476-7.
While the builder could have retained the $35,000 received from the owners' bank under the fixed price contract and claimed the unpaid amount of $6,481.80, the builder chose to only claim under the fixed price contract for work done, add that unpaid amount (as revealed by the final invoice dated 24 May 2020) and refund the balance (as revealed by the payment of $8,889.90 on 7 June 2020. As a result, the builder treated the unpaid balance of the costs plus contract as having been paid, clearly intending to finalise the not only the legal but also the financial aspect of the relationship between the parties.
The fact that the owners did not agree there had been mutual termination when they received the initial notice of termination from the builder, on 5 June 2020, did not alter the fact that there was mutual termination on 18 May 2020.
While it is not necessary to decide, if the builder's second notice of termination, sent on 16 June 2020, constituted repudiation of the fixed price contract, that would require the owners to elect to either affirm or terminate the fixed price contract, which election should have been exercised within a reasonable time after 16 June 2020. Taking just over two months to issue a notice of termination on 18 August 2020 appears to have been beyond a reasonable time.

[22]

Can the owners recover the cost of completion?

The finding of mutual termination means that neither party is entitled to recover damages, as there is no breach upon which to base such a claim. However, the Tribunal considers each of those these three claims of the owners.
The starting point for this claim was a quotation provided by Alpha Carpentry. However, (1) there is no indication of the author of that quote, (2) there is no indication that it was prepared with regard to the Tribunal's Procedural Direction 3 which notably requires an acknowledgement of the primary duty to the Tribunal rather than the party seeking the quotation, (3) there is no indication of the document(s) upon which that quotation was based, (4) there are elements within this quotation which do not appear to be within the contract work, (5) there are elements within this quotation which appear to be work that has been carried out by the builder, (6) there are amounts which appear to be extravagant, such as $15,541.89 for "Labour to lay Floor Tiles" (A251), later reduced to $13,365 (A646), and (7) there are matters raised by Mr Fisniku which were neither challenged in cross-examination or contradicted by evidence from either Alpha Carpentry or the owners' expert, Mr Brincat.
While s 38(2) of the Civil and Administrative Tribunal Act 2013 provides that the Tribunal is not bound by the rules of evidence, that does not mean there are no rules and that a substantial amount, such as this claim for $161,137.05, can be awarded based on little more than a quotation. The quotations from Alpha Carpentry (A244 and A639) are a form of expert evidence, but are devoid of a factual foundation, because they do not indicate what were "the documents provided". The provision of the details of how the total was obtained do not overcome that deficiency.
The probative force of those two quotations is low. The position may have been different if the author of those quotations provided an affidavit or statutory declaration and was thus able to be cross-examined.
The written submissions for the owners (MFI 1 from [133]) sought to bolster the Alpha Carpentry quotation by reference to the evidence of Mr Brincat, but his evidence suffers from the same deficiency that he did not provide copies of the documents upon which he relied, and those documents are not otherwise in evidence. For example, he refers to "Approved Architectural plans" and "Engineering Drawings" which are not in evidence with the consequence that the factual foundation for his opinions is also lacking.
Further, the process of starting with the amount of the later Alpha Carpentry quotation of $242,386 and moving to the amount claimed of $161,137.05, as set out in the owners' submissions (at [138]), includes reliance on Mr Brincat's suggestion that $33,689.05 was paid under the fixed price contract which, in view of the findings set out above, the Tribunal rejects.
In short, the evidence provided in support of this claim is insufficient and unsatisfactory.

[24]

Can the owners recover the storage costs incurred?

Storage costs for a kitchen in relation to the work the subject of either the costs plus or fixed price contract cannot be fairly and reasonably considered to arise naturally with the result that the first limb of Hadley v Baxendale is not satisfied.
The second limb of Hadley v Baxendale requires that such storage costs may reasonably be supposed to have been in the contemplation of both parties when the contract was made.
In relation to this claim, the owners' evidence was that of Ms Burgess who said she hired a storage unit to house the kitchen for the period from 19 October 2019 (A36 at [82]). The builder's evidence was that of Mr Fisniku (A681 at [68]) who said that he was told, in March 2020, that the owners had purchased a second-hand kitchen and would store it in their garage. While he was not questioned on that topic during his cross-examination, there was evidence in reply (A636 at [13]) that the kitchen has been stored, as claimed, and that it was the wardrobe fitting and joinery that were stored in the garage.
The Tribunal notes that the date of March 2020 is after the dated when the fixed price contract was signed, namely 28 January 2020, and the date when the Tribunal considers that contract commenced to bind the parties.
There is no evidence in the owners' case to suggest the builder was ever advised of both the purchase of the kitchen and its storage.
If the evidence of Mr Fisniku is rejected, there is no evidence he was aware of those matters before March 2020. If the evidence of Mr Fisniku on this point is accepted, there is no basis for this claim.
As indicated earlier, it is not necessary to determine this claim by reason of the finding that there was mutual termination of the fixed price contract. However, if it were necessary to reach a decision in relation to this claim, with conflicting evidence and no cross-examination, the Tribunal has no rational basis upon which to prefer the evidence of either party with the consequence that the owners have failed to discharge the onus of proof which they bear.

[30]

Appendix B Date Description Reference Feb 16 Owners purchased the subject property A27, [8] Sep 18 Owners contacted a mortgage broker, Jasmin Wilson A27, [10] Oct 18 Ms Wilson recommended the builder A27, [11] 30 Jan 19 Commonwealth Bank (CBA) approved $80,000 loan A27, [13] 07 Jun 19 Builder provided quote #1019 for $296,450 (4 stages) A272 16 Jun 19 Builder provided quote #1021 for $296,450 (more details) A44 01 Oct 19 Plans finalised, submitted to local council (1 page plan provided) A47-48 02 Oct 19 Builder provided quote #1042 for $147,347.20 A49 02 Oct 19 Owners advised builder their budget was $90,000 A50 04 Oct 19 Owners bought & stored second-hand kitchen & appliances A28, [23] 22 Oct 19 Development application approved (refers to 3 pages of plans) A54 24 Oct 19 Builder sent quote #1043* for $93,230.50 A60 24 Oct 19 Builder sent quote #1044* for $50,524.10 A62 31 Oct 19 Certificate for homeowners' warranty insurance provided A64 09 Nov 19 Builder's invoice #1053* for $17,796.04 A66 11 Nov 19 Costs plus contract signed A77 13 Nov 19 $17,796.04 was paid: $840.95, $14,621.45 and $2,333.64 A65, 109 18 Nov 19 Work commenced at the site A29, [35] 22 Nov 19 Builder's invoice #1056* for $5,084.06, paid the next day A111-117 02 Dec 19 Construction certificate issued by certifier A126 14 Dec 19 Builder issued invoice #1060* for $22,104.01, paid 2 days later A129-142 27 Dec 19 Builder issued invoice #1063* for $22,290.90, paid 2 days later A143-156 03 Jan 20 Owners texted Builder: "… We're out of money and confused on how to proceed…" A726 03 Jan 20 Ms Wilson advised Owners CBA (1) would only release further funding when she was working, (2) required fixed price contract A31, [46] 05 Jan 20 Owners advised Builder work to stop until loan situation resolved A374 06 Jan 20 Owners' email said: "Once again, we apologise for the inconvenience of not having the funds to get you working …" A726 06 Jan 20 Work at the premises stopped A31, [47] Jan 20 Builder alleges conversation with Owners in which it was said the Owners wish to stay on a costs plus basis and that the fixed price was "just for the bank" A671, [20] 08 Jan 20 Builder emailed quote #1048 for $88,000 A157-158 14 Jan 20 Owners asked for fixed price contract with staged payments A160 28 Jan 20 A fixed price contract was signed by the parties A161 24 Feb 20 Builder issued invoice #1067* for $1,973.70, paid 3 days later A194, 202 Late Feb Owners agreed to let Builder do "some small work" A260, [49] 26 Feb 20 Builder (1) advised doors would be installed later that week, and (2) sought a date for resumption of the building work A201 26 Feb 20 Owners replied, saying unable to indicate a resumption date A418 21 Mar 20 Owners advised what they bought to seal underside of floor A767 28 Mar 20 Builder issued invoice #1069* for $12,087.05 A203 30 Mar 20 Builder emailed Owners, saying: "… It's hard because we're doing costs plus" A769 30 Mar 20 Builder emailed owners, raising contract arrangements A215 01 Apr 20 Builder sought details from Owners A433 01 Apr 20 Owners supplied details of fixtures and inclusions A433-436 03 Apr 20 Builder sent overdue notice for invoice #1069* A216 03 Apr 20 Owners told Builder (1) they no longer have control of the money, (2) they will pay the labour component of invoice #1069, (3) "the balance will be received when the first progress payment is made" A261, [60] 04 Apr 20 Owners paid $5,605.25 in part payment of that invoice A218 18 Apr 20 Owners allege meeting at which commencement date for fixed price contract amended from 01 Feb 20 to 01 Apr 20 A33, [60] & A219 On or around Builder alleges meeting at which Ms Wilson suggested the parties start relying on the fixed price contract, Builder said a "proper quote" should be made, and Builder asked Owners to provide a list of product selections A673, [33] 19 Apr 20 20 Apr 20 Meeting: Owners suggest PC items & schedule discussed; A33, [61] Builder suggests amended contract date also discussed A673, [34] 20 Apr 20 Builder emailed Owners, saying $88,000 was "vague pricing" and asking about unpaid $6,481.80 invoice #1069 A220 20 Apr 20 Owners reply email, which referred to the unpaid amount of invoice #1069* being "included in the first lock-up stage costing" A221 24 Apr 20 Builder issued invoice #1070 for $35,000, seeking a progress payment described as "Lock up stage payment" A222 27 Apr 20 Owner sent email, indicating their product choices A777 04 May 20 Builder sent quote #1062 for $94,229.70 (cf $88,000) A223-225 04 May 20 Builder sent quote #1063 for $33,456.50 (additional work) A226-228 04 May 20 Owners replied "We aren't sure we are on the same page …" A229 05 May 20 Owners requested quotes for four specific trades A230 07 May 20 Builder alleges conversation re owners' additions A675, [44] 14 May 20 Variations for $8,259 and $6,573 were signed A231-232 14 May 20 Builder's email included reference to the unpaid $6,481.80 A233 14 May 20 Owners' reply referred to "what the $35,000 is meant to cover" A233 14 May 20 Builder's reply referred to the bank's payment schedule A233 18 May 20 On site conversation alleged by both parties A34 [72]; A263 [69]; A676 [47] 18 May 20 Text messages exchanged A785-786 18 May 20 Ms Wilson advised Owners CBA had paid Builder $35,000 A35, [73] 19 May 20 Owners requested no further payments be made "until we have resolved all issues and agree to what the next steps are" A234 19 May 20 Builder replied: "No problem." A234 20 May 20 Owners alleges conversation in which it was suggested the builder wished to continue and wanted to work with them A35, [75]; A263, [71] 24 May 20 Builder issued invoice #1073 for $26,110.10 which included $6,481.80, being the unpaid balance of invoice #1069*, under cover of an email which began: "Here is your final invoice" A235-237 24 May 20 Owners sent email to Builder which ended with: A456 "All keys are to be returned on this final day." 25 May 20 Certifier issued two inspection notices: both satisfactory A109,112 05 Jun 20 Builder emailed "Notice of Mutual Termination of Contract" A238 07 Jun 20 Builder paid owners $8,889.90, equal to the invoice #1070 total of $35,000 less the invoice #1073 total of $26,110.10 A35, [78] 15 Jun 20 Owners email suggested any termination was not mutual A239 16 Jun 20 Builder sent "Notice of Termination of Contract" A240-241 18 Aug 20 Owners' solicitor sent "Notice of Termination of Contract" A242 08 Apr 21 Owners obtained quote from Alpha Carpentry for $195,958.00 A244-253 22 Aug 22 Owners obtained quote from Alpha Carpentry for $242,386.00 A639-648

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (31 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (20)