Oral Agreements in Construction: Legal Insights and Practical Guidelines

The intricacies of these oral agreements in construction contracts are not just a matter of mutual understanding but also hold significant legal bearings. As demonstrated in the landmark case of C & V Engineering Services Pty Ltd v Metropolitan Demolitions Pty Ltd [2023] NSWCA 167, the legal system grapples with the nuances of these unwritten agreements.

This article aims to unravel the complexities surrounding oral agreements in home construction projects. By examining the legal context, best practices for documentation, strategies for dispute resolution, and insights gleaned from the C & V Engineering v Metropolitan case, we offer homeowners and builders a comprehensive guide to navigate these often murky waters. 

Of course residential construction is subject to home building legislation and the applicable statute for each state and territory provides rules regarding changing the contract terms. This article does not provide applicable statutory application.

Understanding Oral Agreements in Construction Contracts

At the heart of many home construction projects are oral agreements—spoken promises that often complement the formal, written contracts. Legally binding in nature, these agreements form an integral part of the contractual landscape. However, the nature of oral agreements presents unique challenges in their enforcement and interpretation, particularly in the event of a dispute.

The legal standing of oral agreements in construction contracts is clear: they are recognized by law. Yet, the major hurdle lies in proving their existence and the specifics of what was agreed upon. Unlike written contracts, where terms are explicitly stated and agreed upon, oral agreements rely heavily on the memory and interpretation of the parties involved. This reliance can lead to significant issues in a court setting, where concrete evidence is paramount.

The recent case of C & V Engineering Services Pty Ltd v Metropolitan Demolitions Pty Ltd [2023] illustrates the complexity surrounding oral agreements. In this case, the court was tasked with deciphering the existence and terms of an oral agreement that was not documented in the formal contract. The process involved scrutinising post-contract behaviour, email correspondence, and verbal interaction, all to construct an understanding of what had been verbally agreed upon.

This case underscores a critical aspect of oral agreements: the interpretation of such agreements in a legal context does not solely depend on the subjective intentions or understandings of the parties involved. Instead, it hinges on how these agreements would be perceived by a reasonable person, based on observable actions and communications. This objective approach seeks to establish a fair and pragmatic understanding of the agreement, beyond private thoughts or undocumented conversations.

For homeowners and builders, the implications are significant. While oral agreements are a legal and valid part of construction contracts, their informal nature demands caution. Ensuring that these agreements are as clear and detailed as possible, and subsequently corroborating them through written communications or actions, becomes not just a best practice but a necessity. Such prudence not only aids in preserving the integrity of the agreement but also provides a safety net in the event of disputes or legal proceedings.

Documenting Oral Agreements: Best Practices

The key to mitigating this risk lies in diligently recording these verbal agreements. Here are some best practices to ensure that oral agreements are as enforceable and clear as their written counterparts.

  1. Keep Detailed Records: Whenever an oral agreement is made, it is crucial to document the details as soon as possible. This should include the date of the conversation, the names of the parties involved, and a comprehensive summary of what was agreed upon. These records can be maintained in a project diary or a digital log, which can serve as an invaluable reference in case of future disputes.
  2. Send Follow-Up Emails: After any verbal agreement or significant conversation, send a follow-up email to the other party. This email should summarise the key points discussed and the agreed terms. This practice not only ensures that there is a written record of the oral agreement but also gives the other party an opportunity to confirm or clarify the terms. Such emails can be pivotal in demonstrating what was mutually understood and agreed upon.
  3. Use Written Amendments for Major Changes: For substantial or critical changes to the contract, formalise the oral agreement with a written amendment or variation to the Contract. This amendment should be detailed and clear, outlining the changes to the original contract. Both parties should sign this amendment. 
  4. Regularly Review and Update Agreements: Construction projects are dynamic, and agreements may evolve over time. Regularly reviewing and, if necessary, updating written records of these agreements can prevent misunderstandings. This process involves checking in with all parties involved and ensuring that any new or modified terms are documented and agreed upon.
  5. Legal Review of Significant Changes: For significant changes or complex agreements, consider having the documentation reviewed by a legal professional. This step can ensure that the amendment is legally sound and that all parties’ interests are adequately protected.

Implementing these best practices can reduce the risks associated with oral agreements in construction projects. It not only provides a safety net in case of disputes but also promotes transparency and trust between the parties involved. Proper documentation of oral agreements is not just a legal safeguard; it is a cornerstone of effective and professional project management.

Resolving Disputes Over Unwritten Agreements

Disputes arising from unwritten agreements in home construction projects can be challenging to resolve due to the lack of formal documentation. These disputes often stem from misunderstandings or differing recollections of verbal discussions. Addressing such disputes requires a tactful approach, balancing legal considerations with the need for maintaining positive working relationships. Here are strategies for effectively resolving disputes over unwritten agreements:

  1. Gather Evidence: Begin by compiling all available evidence that can shed light on the disputed agreement. This may include emails, text messages, notes from meetings, or any other documentation that references the oral agreement. Even if these pieces of evidence do not provide a complete picture, they can help establish the context and content of the discussions.
  2. Engage in Open Communication: Before escalating the dispute to formal proceedings, attempt to resolve it through direct communication. Schedule a meeting with the other party to discuss the disagreement. Approach this conversation with an open mind, focusing on finding a mutually acceptable solution. Often, disputes can be resolved through clarification and renegotiation of terms.
  3. Consider Legal Advice: If the dispute remains unresolved and involves significant stakes, it may be necessary to seek legal advice. A lawyer specialised in construction law can provide insights into your legal position and the best course of action. They can also help draft any necessary documents to formalise the resolution.

Insights from C & V Engineering v Metropolitan

The case of C & V Engineering Services Pty Ltd v Metropolitan Demolitions Pty Ltd [2023] NSWCA 167 offers pivotal legal insights into the treatment of oral agreements in construction contracts. This case serves as a valuable reference for understanding how courts approach disputes involving unwritten agreements. Here are the key legal takeaways from this case:

  1. Interpretation of Agreements Based on Objective Evidence: One of the central lessons from this case is the emphasis on objective interpretation of agreements. The court focused on how a reasonable person would interpret the actions and communications of the parties involved, rather than relying solely on their subjective intentions. This approach underscores the importance of tangible evidence like email exchanges and documented actions post-contract in determining the nature of an agreement.
  2. Significance of Post-Contractual Conduc: The case highlighted the relevance of actions and communications that occur after the contract is signed. These post-contractual behaviours can provide critical insights into the understanding and intentions of the parties regarding the oral agreements. For instance, in this case, the court considered email correspondences and the July 5 conversation as substantial evidence, indicating that both procurement and fabrication were part of the contract.
  3. Objective Construction of Contractual Terms: The court’s decision was also influenced by an objective construction of the contract terms. This means that the contract was interpreted in the context of the situation and the apparent understanding of both parties, as evidenced by their conduct and communications, rather than their internal, unexpressed thoughts.
  4. Commercial Context Matters: The commercial context of the agreement played a significant role in the court’s interpretation. The urgency and requirements of the construction project were considered to better understand the scope of work implicitly agreed upon by the parties. This aspect demonstrates the importance of considering the practical and commercial realities surrounding a contract.
  5. Implications for Homeowners and builders: For homeowners and builders, this case is a stark reminder of the complexities surrounding oral agreements in construction contracts. It highlights the necessity for clear communication, thorough documentation of all agreements (whether oral or written), and an understanding of how these agreements might be interpreted based on the actions and context surrounding them.
  6. Need for Legal Consultation: The case also illustrates the potential for legal disputes arising from oral agreements and the importance of seeking legal advice, especially when significant changes or unclear terms are involved. A legal professional can help in interpreting the contract terms and providing guidance on how best to document and enforce oral agreements.
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The Importance of Clear Agreements and Legal Advice

The complexities of oral agreements in home construction projects highlight the imperative need for clarity and precision in contractual relationships. The C & V Engineering v Metropolitan case serves as a crucial reminder of the legal nuances and potential disputes that can arise from undocumented or unclear agreements. It underscores the importance of meticulously documenting all aspects of construction agreements, whether oral or written, to safeguard against misunderstandings and disputes. Homeowners and builders alike should heed these lessons, recognizing that proactive, clear communication, and legal consultation are not just best practices but essential components for the successful and dispute-free completion of construction projects.

Our office offers a free 15 minute consultation to homeowners with a dispute that exceeds $30,000.