LIEBE V MOLLOY (1906) 4 CLR 347
High Court of Australia
Liebe, the builder, entered into a contract with Molloy, the employer, to erect buildings for over $30,000. The contract provided that no works beyond those included in the contract should be allowed or paid for without an order in writing signed by both the architect and the proprietor. The builder claimed payment for certain works said by him to be extras. There had been no order in writing for these works as required by the contract. They had been ordered by the architect, either in writing signed by him alone, or orally. A dispute arose and there was a finding before arbitrators that the written orders were not endorsed by the employer, but that the fair inference was that he had knowledge of the extra work. The builder submitted that the employer had entered into an implied contract to pay the fair value of the works “as extra works”.
Whether the contractor could recover payment for variations to the work without an order in writing from the employer and the architect when such a written order was by the terms of the contract a condition precedent to payment.