Alvaro Homes Pty Limited v Ellsteel & Engineering Supplies Pty Limited [2007] NSWSC 702

New South Wales Supreme Court

CITATION : Alvaro Homes Pty Limited v Ellsteel & Engineering Supplies Pty Limited [2007] NSWSC 702

HEARING DATE(S) : 02/07/2007

JUDGMENT DATE : 5 July 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The judgment and orders made by the Magistrate are set aside. The proceedings are remitted back to the Local Court for re-hearing according to law. The defendant is to pay the costs of the Summons. If so entitled, it is to have a certificate under the Suitors Fund Act.

CATCHWORDS : Dispute as to nature of contract - alleged payment under mistake - claimant not licensed to perform residential building work - defence of illegality and alternative claim for quantum meruit not pleaded - claim for the latter allowed - opportunity not given to raise defences or adduce evidence in respect of the claim - cross-claim cursorily dismissed without reasons

LEGISLATION CITED : Home Building Act 1989 (NSW)

PARTIES : Alvaro Homes Pty Limited (Pl) Ellsteel & Engineering Supplies Pty Limited (Def)

FILE NUMBER(S) : SC 10192/07

COUNSEL : Mr H. Altan (Pl) Mr R. Sergi (Def)

SOLICITORS : Willis & Bowering (Pl) AP Sparke & Broad (Def)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 1581/2006

LOWER COURT JUDICIAL OFFICER : Miller LCM

LOWER COURT DATE OF DECISION : 14/12/2006

- 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

5 JULY 2007

10192/07 Alvaro Homes Pty Limited v Ellsteel & Engineering Supplies Pty Limited

JUDGMENT 1 HIS HONOUR: The plaintiff is a builder. It successfully tendered for the building of a home at Mittagong. The defendant was in the business of providing and fixing steel beams and components. It was invited to do such work for the plaintiff. 2 In the course of the contact between them, the defendant came to give the plaintiff a quotation (on or about 13 August 2003) for a sum in the order of $35,000. It also gave the plaintiff some plans or basic drawings. There was a delay and later the defendant gave the plaintiff a further set of plans (which were at least replete with more detail) or detailed drawings. 3 The defendant did work for the plaintiff and rendered invoices. The plaintiff paid invoices in the order of a total of $62,000. The defendant rendered further invoices in the order of a total sum of $32,000. This amount was not paid by the plaintiff. The parties came to be in dispute as to whether or not the detailed drawings involved the performance of additional work. 4 The defendant brought proceedings in the Local Court to recover that amount. The plaintiff defended the proceedings and brought a cross-claim to recover what it regarded as overpayment. 5 Both parties accept that the pleadings relied on fell well short of being adequate. I will come back to this matter in due course. 6 The dispute went to a hearing. The parties were represented by Counsel. At an early stage of the hearing, Counsel for the defendant summarised the issues as follows:- "So in summary, the plaintiff says there was no quote, it was a do and charge. The defendant says it was a quote and we've overpaid you." 7 During cross-examination, it emerged that the defendant was not licensed to carry out the work it was performing. Following the conclusion of the evidence, Counsel for the plaintiff sought to raise a defence which has been treated as one of illegality (by reason of s10 of the Home Building Act 1989 (NSW)). The defendant contended that such a defence had not been pleaded. The proceedings were then adjourned for about a month. The parties returned to make submissions. 8 The submissions were made on 8 December 2006 and contained the following on behalf of the defendant [at transcript p1]:- "Your Honour I'll make mention a bit later on of a quantum meruit, which could be a fall back and there we are".