Nayak v Rockwall Constructions Pty Ltd [2017] NSWCATAP 18

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nayak v Rockwall Constructions Pty Ltd [2017] NSWCATAP 18 Hearing dates: 18 July 2016 Date of orders: 30 January 2017 Decision date: 30 January 2017 Jurisdiction: Appeal Panel Before: L P Robberds QC, Senior Member D A C Robertson, Senior Member Decision: (1) Leave to appeal on ground of appeal 7 is refused. (2) Leave to appeal on ground of appeal 8 is refused. (3) Appeal allowed in part in relation to Variation 1. (4) Appeal allowed in relation to Variation 3. (5) Appeal allowed in relation to Variation 4. (6) Set aside order 1 made on 23 March 2016 and otherwise order: Srinivas Nayak and Deepti Nayak must pay Rockwall Constructions Pty Ltd the sum of $46,070.63 immediately. (7) No order as to the costs of the appeal. (8) Order 2 made on 23 March 2016 is varied so that any costs application may be lodged with the Tribunal and served within 21 days of the date of these orders. (9) The proceedings are remitted to the Tribunal for determination of any costs application lodged in accordance with orders 2 – 5 made on 23 March 2016, as varied. Catchwords: Building contract – claims for variations – contract requirements not followed – alternative claims based on quantum meruit – elements of a quantum meruit claim – whether evidence established those claims Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; [2009] 239 CLR 129 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 BHP Billiton Ltd v Dunning [2013] NSWCA 421 Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 Collins v Urban [2014] NSWCATAP 17 Coulton v Holcombe (1986) 162 CLR 1 Fink v Fink [1946] HCA 54; (1946) 74 CLR 127 Goodacre v Trinder Alpine Constructions Pty Ltd [2013] NSWCCT 124 Italiano v Carbone [2005] NSWCA 177 JLW (Vic) v Tsiloglou [1994] 1 VR 237 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 Schindler Lifts Australia Pty Ltd v Debelak [1989] FCA 311; (1989) 89 ALR 275 Sopov v Kane Constructions Pty Ltd (No 2) [2009] VSCA; (2009) 24 VR 510 The Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 Trimis v Mina [1999] NSWCA 140 Xu v Jinhong Design and Constructions Pty Ltd [2011] NSWCA 277 Category: Principal judgment Parties: Appellants: Srinivas Nayak and Deepti Nayak Respondent: Rockwall Constructions Pty Ltd Representation: Counsel: M O'Connor (Appellants) J E Stuckey-Clarke (Respondent)