BARTER V MAYOR OF MELBOURNE (1870) 1 AJR 160
Barter contracted with the Mayor of Melbourne. The contract provided for altered works to be measured and paid for and further provided that “no claim will be allowed for extras unless ordered in writing”.
Barter claimed payment for, among other things, additions, alterations and extra works.
Barter argued that the additions and alterations, as distinct from extras, were not required by the contract be in writing.
Accordingly, the court considered the distinction between additional work which is within the contract and additional work outside the contract.
The court held that the additional works were contemplated by the parties and could not therefore be regarded as “extras” in the sense in which that word was used in the contract.
As they were not “extras”, the claim of the contract that there was no necessity for them to have been ordered in writing was upheld.
Stawell CJ drew a distinction between extras within and extras outside such contract, saying:
“In contracts of this kind it may be impossible to ascertain the precise amount of work to be done, and it may be unavoidable to exceed the quantity of work in the specification…
We think that in a contract of this kind, framed in the terms containing the provisions this does, and where obviously the additions are of the same kind of work, although it may cause the whole sum to be exceeded, yet it is not an extra outside the contract.”
Additionally, Stawell CJ defined extras as “works which are not contemplated by the parties at the time of execution of the contract, and are not provided for.”
When considering a claim for extras it is necessary to ascertain the precise nature and extent of the work which the contractor has undertaken to perform under the original contract.
This publication is intended to be a topical report on recent cases in the construction, development and engineering industries. This publication is not intended to be a substitute for professional advice, and no liability is accepted. This publication may be reproduced with full acknowledgement.
Tel.: 1800 888 783