New South Wales District Court CITATION: Redman v Sazdanoff & Ors [2010] NSWDC 254 HEARING DATE(S): 15 June 2010, 17 June 2010 JUDGMENT DATE: 18 June 2010 JURISDICTION: District Court - Civil JUDGMENT OF: Sidis DCJ 1) The appeal is dismissed. DECISION: 2) The appellant is to pay the respondent's costs of the appeal. 3) The affidavit evidence in retuned. CATCHWORDS: CTTT APPEAL - Error of law in finding that quotation could be relied upon as a written contract in compliance with s. 7 of Home Building Act 1989 - Claim of quantum meruit not tenable in face of oral contracts - Findings of fact by Tribunal Member not appellable LEGISLATION CITED: Home Building Act 1989 Uniform Civil Procedure Rules 2005 CASES CITED: Cultured Stone Australia Pty Ltd v Compton & Ors (Home Building) [2009] NSWCTTT 114 (20 March 2009) Pavey & Matthews Pty Limited v Paul (1987) 162 CLR 221 Dallas Redman (Plaintiff) PARTIES: Peter Sazdanoff (First Defendant) Cheryl Sazdanoff (Second Defendant) FILE NUMBER(S): 2009/00332937 SOLICITORS: Thomas Mitchell Solicitors (representing the plainitff) Schofield Muir (representing the first and second defendants) JUDGMENT 1 This matter involves an appeal from a decision of Senior Member Connolly in the Consumer Trader and Tenancy Tribunal dated 18 August 20009. 2 The summons commencing the appeal was filed on 6 October 2009, and therefore outside the time limit of 28 days imposed by Rule 50.3 of the Uniform Civil Procedure Rules 2005. 3 The delay in the commencement of this appeal was not raised by the defendants on any of the four prior occasions when the proceedings came before the Court for directions and there was no evidence of prejudice to the defendants arising out of that delay. 4 In the circumstances, I decided to exercise my discretion and extend the time for commencement of the appeal to 6 October 2010. 5 The proceedings relate to a claim made by the plaintiff for $5,060 for painting work undertaken by him for the defendants. That work was undertaken by the plaintiff at the defendants' home and was undertaken in two parts. The first in June, July or August 2008, there being a dispute between the parties as to the precise dates upon which the first part of the work was carried out. The second part was done in September 2008. 6 The plaintiff claimed that he agreed with the defendants for the performance of the works as follows. 7 For the first part of the work, the charge was $5,060 as quoted in writing on 30 April 2008. This amount was comprised of the price for the work of $4,600 and GST of $460. 8 For the second part of the work that was undertaken in September 2008, he alleged that he charged the rate of $400 per day plus the cost of materials. 9 The plaintiff claimed that he was paid only in respect of the second stage of the works, that is, $2,700, as claimed in an invoice provided to the defendants. It was agreed by the defendants that this was the amount paid. 10 The defendants stated that they did not receive the written quotation of 30 April 2008. They said the initial quote was verbal in the amount of $4,600 and was subsequently reduced to $3,600, which they agreed to pay. Of this sum they claimed they paid the plaintiff $2,000 in cash when the progress of the work was interrupted. 11 They said the plaintiff subsequently agreed to waive the balance of $1,600 on the basis that the remainder of the work would be charged at the rate of $400 per day plus materials. Thus, on the defendants' version of the events, nothing further was owed to the plaintiff. 12 Mr Connolly, in the Consumer Trader and Tenancy Tribunal expressed doubt about the credit of all of the parties, but ultimately he accepted the evidence of the plaintiff that a written quotation was provided. He concluded that section 7 of the Home Building Act 1989 was complied with insofar as it required the contract to be in writing. 13 In this respect, he relied upon an earlier decision of the Tribunal in Cultured Stone Australia Pty Ltd v Compton & Ors (Home Building) [2009] NSWCTTT 114 (20 March 2009) in which it was held that the provision of a quotation and plans and specifications provided a sufficient description of the work and that, therefore, the provisions of section 10(2)(b) of the Home Building Act did not affect the enforceability of the contract under consideration in that case. 14 It appeared, however, that in addition to the quotation, plans and specifications, there were in the Cultured Stone case, two formal contracts. There was reference in the reasons to the dates of those contracts and to clause 33.2 of the contract. 15 In the current case, the quotation was not accepted and therefore, aside from its non-compliance in many respects with the requirements of section 7 of the Act, the quotation in isolation could not be construed to be a contract. 16 Mr Connolly accepted as a fact on the evidence that there were two oral contracts. The first contract was for $3,600 for the first part of the works, and the second, $400 per day plus materials for the second part of the works. 17 In this appeal, the plaintiff himself contended that there was no contract that complied with the provisions of section 7. 18 I agree, therefore, that Mr Connolly's finding that the quotation represented an enforceable contract for the purposes of the Act was an error of law. 19 The question then was whether there was some other agreement and whether there was any error of law on the part of the Tribunal Member in respect of any subsequent agreement. 20 The Tribunal Member found that there was an oral contract for the first part of the work that was to be done for the price of $3,600. This contract is not enforceable by the plaintiff by reason of the provisions of section 10 of the Act. 21 The plaintiff therefore submitted that in accordance with a number of authorities provided to the Court that his claim must be determined on a quantum meruit basis and that the Tribunal Member was in error in not so finding. 22 There are a number of problems with this proposition. Firstly, the finding of the Tribunal Member was not only that there were two oral contracts. He accepted the evidence of the defendants that they had paid, on the first part of the contract, the sum of $2,000 and on the second part of the contract, the full amount claimed by the plaintiff of $2,700. He therefore accepted that there was evidence that established that there was nothing remaining to be paid to the plaintiff. 23 In my view, these were findings of fact that were not challengeable on appeal. In any event, I did not think that this plaintiff was in a position to pursue a claim on a quantum meruit. 24 When I reviewed the High Court's decision in Pavey & Matthews Pty Limited v Paul (1987) 162 CLR 221, I noted that it was stated by the majority that it was a pre-condition to a claim in quantum meruit that the builder had done work for which the property owner had refused to pay the agreed remuneration. 25 Justices Mason and Wilson, at paragraph 12 of their judgment, said the following: If the effect of bringing an action on a quantum meruit was simply to enforce the oral contract in some circumstances only, though not in all the circumstances in which an action on the contract would succeed, it might be persuasively contended that the action on a quantum meruit was an indirect means of enforcing the oral contract. So if all the plaintiff had to prove was that he had fully executed the contract on his part and that he had not been paid the contract price, there would be some force in the suggestion that the proceeding amounted to an indirect enforcement of the contractual cause of action. However, when the success in a quantum meruit depends not only on the plaintiff proving that he did the work, but also on the defendant's acceptance of the work without paying the agreed remuneration, it is evident that the court is enforcing against the defendant an obligation that differs in character from the contractual obligation had it been enforceable. 26 Similarly, Justice Deane made it clear that, although the contract was not enforceable by the builder, it remained enforceable by the property owner. He said at paragraph 15 of his judgment: If the unenforceable contract has not been rescinded by the plaintiff or otherwise terminated, the defendant will be free to rely on it as a defence to the claim for compensation in a case where he is ready and willing to perform his obligations under it (authority not quoted). The defendant will also be entitled to rely on the unenforceable contract if it has been executed but not rescinded to limit the amount recoverable by the plaintiff to the contractual amount in a case where that amount is less than what would constitute fair and reasonable remuneration. 27 In this case, the Tribunal Member found as matters of fact the terms of the two oral contracts and the terms upon which the first contract was varied. He also found that the defendants had fully performed their obligations under those contracts. 28 In the circumstances, I did not consider there was an issue of law to be dealt with, and nor did I consider that, aside from the question of whether there was a contract that was enforceable under the provisions of section 10, there was any error of law on the part of the Tribunal Member. 29 In the circumstances, the appeal is dismissed. 30 The appellant is to pay the defendant's costs of the appeal. 31 The affidavit evidence is returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.