Wright v Foresight Constructions Pty Ltd [2011] NSWCA 327

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wright v Foresight Constructions Pty Ltd [2011] NSWCA 327 Hearing dates: 4 October 2011 Decision date: 26 October 2011 Before: Giles JA at 1; Basten JA at 13; Handley AJA at 54 Decision: (1) The order of the District Court with respect to the costs in the Tribunal be set aside insofar as it required Desiree Wright to pay any part of the builder's costs in the Tribunal. (2) Subject to order (1), dismiss the application to review the judgment of the District Court of 18 March 2011. (3) Order that Adam Wright pay the costs of the respondent in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONTRACT - building - oral variation of specification - contract unenforceable by builder but oral variation relied upon in defence of claim by owner - construction of contract - Home Building Act 1989 (NSW), ss 7, 7A, 7E, 10

JUDICIAL REVIEW - variation of costs order - order set aside as against party wrongly made subject to order

STATUTORY INTERPRETATION - reliance by builder on oral variation to written agreement - statute prescribing consequences of breach - Home Building Act 1989 (NSW), ss 7, 7A, 7E, 10 Legislation Cited: Building Legislation Amendment (Quality of Construction) Act 2002 (NSW), Schedule 2, Item 2.2 Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 53 Consumer, Trader and Tenancy Tribunal Regulation 2009, cl 20 Home Building Act 1989 (NSW), ss 7, 7A, 7E, 10, 11, 18B Home Building Regulation 1997 (NSW), Part 1, Sch 3A; cll 1, 59 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), rr 6.12A, 51.45 Cases Cited: Bellgrove v Eldridge [1954] HCA 36; 90 CLR 613 David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 481, 175 CLR 353 Head v Kelk (1963) 63 SR (NSW) 340 Mayfair Trading Co Pty Ltd v Dreyer [1958] HCA 55, 101 CLR 428 Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; 162 CLR 221 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; 236 CLR 272 Wright v Foresight Constructions Pty Ltd [2010] NSWCTTT 147 Wright v Foresight Constructions Pty Ltd [2010] NSWCTTT 264 Texts Cited: Halsbury's Laws of England (4th ed, reissue) Vol 9(1): Contract, par 1081