MONTELEONE v AV CONSTRUCTIONS PTY LTD [1989] NSWCA 148

MONTELEONE v AV CONSTRUCTIONS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER JJA, and Hope AJA 12 December 1989, 12 December 1989

[1989] NSWCA 148

Contract — building contract — identity of parties — evidence of cost of building work — whether actual cost of materials and labour established the reasonable value of the work for the purposes of a quantum meruit claim — claim for deduction because of detriment allegedly suffered by defendant — detriment claimed not established — cross-action for failure to carry out work in a proper and workman-like manner — conclusion by trial judge that owner entitled to recover cost of less expensive remedial work — on appeal held that in the circumstances owner entitled to recover cost of more expensive remedy — Bellgrove v Eldridge (1954) 90 CLR 613 applied.

Hope AJA This is an appeal from a decision of Mahoney DCJ in which he awarded a sum of $119.65 to the plaintiff in proceedings arising out of a dispute between the parties in respect of a building contract. In arriving at that amount his Honour found for the plaintiff in a sum, including interest, of $5,250 on its claim against the defendant, and damages in the sum of $5,131.35 in favour of the defendant on the cross-action brought against the plaintiff.

The agreement the subject of the proceedings was made as long ago as 1975. The owners of the premises were the present appellant Mrs Monteleone and her husband. They had discussions with a Mr Mollica about the construction at their home of a garage with a concrete roof and a laundry to be erected on part of that roof.

The identity of the parties to the agreement is one of the matters in issue but it was claimed by Mr Mollica that at all times he was acting for a company which he and his wife owned and controlled, namely, AV Constructions Pty Ltd (AVC), and that it had an oral contract with Mr and Mrs Monteleone for the construction of the garage and laundry. The work was carried out, but it is not in issue that it was unsatisfactory in that it leaked and did not comply with the requirements of the relevant building code.