Trimis & ANOR v Mina


Supreme Court of New South Wales Court of Appeal – 2 May 1999


Mr. and Mrs Trimis (‘Trimis’) owned land at Bankstown which they wished to develop. Plans for cluster houses were approved and Mr. Mina (‘Mina’), the builder, quoted for the remaining work. The parties executed a Contract.

It became apparent over time that there had been some departures from the plans, in particular, the upstairs bedroom wassmaller than shown. As a result relations soured and a dispute arose as to payment for the work done. Trimis then  excludedMina from the site and took the keys to the building, leaving Mina’s materials, plans and equipment on the site and  effectively repudiating the Contract.

Mina claimed that during the contract, Trimis had orally agreed to variations but Trimis claimed that the agreements had been made on the basis that there would be no additional costs. Mina sued for variations to the contract.

Trimis submitted that it was not open to Mina to sue off or outside the contract in restitution with respect to the variations not evidenced in writing. Alternatively, Trimis submitted that there should have been no award for the variations because the fact that Trimis was aware of the work being carried out was not sufficient to sustain the restitutionary claim. What was lacking, Trimis contended, was a finding that the owners had agreed to pay extra for the work.


Whether Mina was entitled to the variations on quantum meruit or restitutionary basis.


The Court found that Trimis had not agreed to pay extra for the variations, that the variations were not costlier to Mina thancontractual performance, and that Trimis had not received a benefit additional in value to that contracted for.

Further, the principles stemming from Liebe v Molloy, had not been satisfied, namely that (i) that the Trimis had actual knowledge of the extra works as they were being done, (ii) knew that they were outside the contract and (iii) knew that Mina expected to be paid for them as extras, then a contract to pay for them could properly be implied.

Accordingly, the Court found that Mina had not established an express or implied contract, nor a quantum meruit or restitutionary basis to pay for the variations.


Mason P held at paragraph 56:

…a contract for work may not preclude a claim for additional work, under an implied contract or on a restitutio nary basis, where the additional work is done “outside the contract” and in circumstances where the law would recognize a contract to pay for it or impose a restitutio nary obligation to similar effect. But merely because the work differs from that contracted for will not suffice, even if delivered to the plaintiff or performed upon the plaintiff’s land… Exactly what extra must be demonstrated before a restitutio nary claim will lie is a matter of some controversy.

Different positions are adopted depending on how essential one regards the need for the defendant’s “benefit” to be established as an element in a restitutio nary cause of action.”


This case confirms the proposition that where a principal has actual knowledge of the additional or extra works, knows that they are outside the contract and knows that the builder is expecting to be paid for the works as extras to the contract, then a builder may be entitled to claim on a quantum meruit or restitutionary basis.

Facade Innovations v Timwin Constructions & ORS


Supreme Court of New South Wales Court of Appeal – 8 June 2005


Timwin Constructions Pty Ltd (‘Timwin’) as builder, entered into a subcontract with Façade Innovations Pty Ltd (‘Façade’) as the subcontractor for construction works. Façade made a Payment Claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (‘the Act’) in the sum of $498,664, the majority of which was for variation work.

Timwin provided a Payment Schedule proposing to pay nothing and claimed damages for delay and an amount of $73,615 allegedly over-paid. Façade submitted an Adjudication Application and the Adjudicator determined that Façade was entitled toa progress payment of the whole amount claimed.

Façade then obtained a judgment for that amount, pursuant to section 25 of the Act, in the Supreme Court.

Timwin commenced separate proceedings in the Supreme Court, seeking a judgment that the Adjudication Determination was void on the grounds that the Adjudicator did not exercise his powers in good faith. In the course of the proceedings, Timwin paid into court a sum of just over $500,000.00, representing the result of the Adjudication Determination, and the Court ordered that Façade take no steps to enforce the judgment until further order. The Supreme Court held that the Adjudication Determination was void and ordered that money to be paid into Court by Timwin be paid out to it.

Façade submitted that there should be a further stay pending an anticipated appeal. Further, that the appeal has a substantial chance of success, that the policy of the Act is to provide for payments to subcontractors in accordance with Adjudication Determinations, and that the evidence indicates there could be difficulty in obtaining payment from Timwin if the appeal was successful and the money was not retained in court.

Timwin submitted that stays in relation to appeals in matters under the Act should not be granted merely because of anticipated difficulty in recovering money paid, much less in enforcing judgments. Further, that it was only in exceptional circumstances that security would be ordered for a judgment, and that the circumstances of this case fell far short of the grant of a Mareva injunction. Furthermore, Timwin was a company with substantial assets able to meet the judgment if the Adjudication Determination was re-established


Whether the stay should be extended.


The Court ordered that the money be paid out to Timwin of money paid into Court.


At paragraph 8 Hodgson JA commented:

“… it seems to me that the policy of behind s25 really requires that the amount paid into court remain in courtunless and until that judgment is set aside.”

Para [15]“My impression is that the appeal is a reasonable appeal, but that its success is far from assured. Apart from considerations associated with the policy of the Act in general and s25 in particular, I do not think a case is made out for a stay simply on the basis that there is a reasonable appeal and there might be problems in enforcing the judgment if the money is not retained in court. I am not inclined to the view that considerations associated with the policy of the Act in general and s25 in particular would justify a stay by reason of the existence of a reasonable appeal but, in saying that, I do not wish to preclude that matter being further considered on the application to set aside the judgment.”


A stay to maintain a payment into court after a decision that an Adjudicator’s Determination is void, is unlikely to be granted merely by reason of the existence of a reasonable appeal. [2005] NSWCA 197