TRIMIS & ANOR V MINA  NSWCA 140
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.