Firth v. Thompson [2001] NSWCA 131

New South Wales Court of Appeal

CITATION : Firth v. Thompson [2001] NSWCA 131 FILE NUMBER(S) : CA 40825/99 HEARING DATE(S) : 18th April 2001 JUDGMENT DATE : 8 May 2001

PARTIES : William Malcolm Firth - appellant Ken J. Thompson - respondent JUDGMENT OF : Stein JA at 1; Giles JA at 2; Hodgson JA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT DC 207/90 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

COUNSEL : Mr. B. Ralston for appellant Mr. R. Skiller for respondent SOLICITORS : Luchetti & Co., Crows Nest for appellant Ronald S. Szinner & Co., Gladesville for respondent CATCHWORDS : CONTRACT - Building contract - Progress payments - Whether required by contract - Whether breach by late payments - Whether builder entitled to rescind. DECISION : See par.54 of judgment

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40825/99 DC 207/90

STEIN, JA GILES, JA HODGSON, JA

Tuesday 8th May 2001 FIRTH V. THOMPSON JUDGMENT

1 STEIN JA: I agree with Hodgson JA. 2 GILES JA: I agree with Hodgson JA. 3 HODGSON JA: This is an appeal brought by leave by the plaintiff from a decision of Delaney, DCJ given on 21st July 1999, in which his Honour dismissed the plaintiff's claim, gave judgment in favour of the defendant on his cross-claim for $15,000.00 plus $2,000.00 interest, and ordered the plaintiff to pay the defendant's costs of the hearing.

OUTLINE OF FACTS 4 I will commence with an outline of facts which were either not in dispute or clearly proved. 5 The case arose out of a contract between the plaintiff/appellant as head contractor to the Commonwealth Department of Housing and Construction, and the defendant/respondent as subcontractor, for the erection of a house in an army camp at Denman. 6 The contract was at least partly constituted by order No.969 on a form of the appellant (who apparently traded as Urban Constructions), dated 7th June 1987, addressed to the respondent. The form contained the words "sub-contract" and "construct house complete as per plans and spec Type B", and referred to a price of $42,000.00. There is also writing on the form apparently relating to an amount of concrete included in an "original contract". The contract was also at least partly constituted by some plans of a small house, which were tendered as evidence before the trial judge. 7 It appears that the respondent commenced to work on the site on or about 20th July 1987, and that he continued to work on the site until about 8th August 1987. The work performed included the construction of the foundations, and erection of at least a substantial part of the frame, brickwork and roof. 8 On or about 5th August 1987, the appellant provided a letter of that date to the respondent, in the following terms: