Zavodnyik & Ors v Alex Constructions Pty Ltd [2005] NSWCA 438

Reported Decision : 67 NSWLR 457

New South Wales Court of Appeal

CITATION: Zavodnyik & Ors v Alex Constructions Pty Ltd [2005] NSWCA 438

HEARING DATE(S): 28 June 2005

JUDGMENT DATE: 9 December 2005

JUDGMENT OF: Mason P at 1; Handley JA at 2; Latham J at 41

DECISION: 1. Appeal allowed with costs.; 2. Orders of the District Court of 28 June 2004 set aside.; 3. In lieu thereof order that District Court action No 5980 of 2003 be summarily dismissed and that there be judgment for the defendants in the action with costs.; 4. The plaintiff is to pay the defendants' costs of the notice of motion of 16 March 2004.; 5. The respondent is to have a certificate under the Suitors' Fund Act for the costs of the appeal, if qualified.

CATCHWORDS: BUILDING CONTRACTS – unlicensed builder – contract and restitution alternative and inconsistent remedies – judgment for proprietor in contract – cause of action estoppel against builder's claim in restitution - RES JUDICATA – cause of action estoppel – contract and restitution alternative and inconsistent remedies – judgment for defendant in contract – cause of action estoppel against claim in restitution - RES JUDICATA – Anshun estoppel – later proceedings based on same matrix of fact barred - RESTITUTION – building work – claims in contract and restitution – alternative and inconsistent remedies - D

Builders Licensing Act 1971 LEGISLATION CITED: Home Building Act 1989

Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 Henderson v Henderson (1843) 3 Hare 100 [67 ER 313] Ling v The Commonwealth (1996) 68 FCR 180 CASES CITED: Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406 United Australia Ltd v Barclays Bank Ltd [1941] AC 1