The Parties’ Minds over Matter: terminated contract versus quantum meruit

The High Court of Australia has recently handed down a rare and significant judgment in the area of building and construction law.
A story that began with the construction of two townhouses in Victoria has led to the shaking of the foundations of the law around contract, repudiation and claiming a quantum meruit.
This decision affects the common situation in which a builder and a developer have a torn-up contract, and the builder is claiming payment for the work they started but were not able to finish.
We explore Mann v Paterson Constructions Pty Ltd [2019] HCA 32 below and provide an overview of the key takeaways from this ruling in relation to quantum meruit.
The High Court also considered some interpretation issues in relation to the Victorian Domestic Building Contract Act 1995. These are not considered here.

Quantum meruit

Before analysing the case, it is useful to outline what is a claim for quantum meruit.
A claim for quantum meruit, is a claim for a fair and reasonable sum for services rendered, where a developer requests and receives a benefit from a builder.
This is not a claim in contract, which is a claim by Party A to be given that which Party B promised or agreed to give.

Where a contract is still alive between the parties, a claim for quantum meruit is not permitted. Some of the situations in which a claim in quantum meruit may be brought include:
(a) a contract never existed between the parties;
(b) statute prevents a claim in contract, because for example the agreement was for residential building work but it was not in writing; or
(c) a contract was in existence but was void or unenforceable.

Case (c) above was the subject of Mann v Paterson Constructions. In this case, the contract was terminated, so it no longer applied between the parties.
An issue that has been plaguing courts for some time is the following: in a claim for quantum meruit, what if a “fair and reasonable sum” for services performed is greater than what the parties agreed to under the contract? Should the claim be limited to what was agreed to by the parties, even if that agreement was ripped up?
It was an inevitable prize fight between contract and quantum meruit, with a purse of several hundred thousand dollars at stake.

The facts

On 4 March 2014, Peter and Angela Mann (the Manns) entered into a Masters Builders Association domestic building contract (Contract) with Paterson Constructions Pty Ltd (Paterson). Under the Contract, Paterson was to build two double-storey townhouses in Blackburn, Victoria. The Manns were to pay Paterson the amount of $970,000 (incl. GST). During the performance of the Contract, the Manns requested 42 variations without giving the required written notice. Paterson performed these variations.
On 16 April 2015, a little over one year into the project, the relationship between the parties had deteriorated, primarily over claims that variations had been completed and had to be paid.
The Manns through their solicitors wrote to Paterson, stating that they considered the contract to have been repudiated by Paterson. Repudiation occurs where a party demonstrates that it is unwilling or unable to perform important parts of the contract. The Manns “accepted” this repudiation and said that they terminated the Contract.
Paterson denied that its conduct had been repudiatory. After some correspondence, Paterson claimed that the Manns’ purported termination was in fact repudiation by the Manns. Paterson said that as a result, it terminated the Contract.

The case history: from VCAT to the High Court
Paterson commenced proceedings in the Victorian Civil and Administrative Tribunal, seeking damages.
Senior Member Walker of VCAT found that the Manns had wrongfully repudiated the contract. Paterson was awarded damages on a quantum meruit. Once rectification of defects was considered, damages were $660,526.41.
The remarkable aspect of the ruling was that the damages awarded to Patterson for quantum meruit were much higher than the contract price that Paterson would have been entitled to had the Contract remained alive. Senior Member Walker was acutely aware of this, but considered the damages to be a fair and reasonable sum.
The Manns appealed first to the Supreme Court of Victoria, however Cavanough J dismissed the appeal. The Manns then appealed to the Court of Appeal.
The Manns argued that the decision-makers had made an error. They argued that the error was that the decision-makers had decided that where a contract is terminated, it is as though it never existed and, as a result, they did not have to consider the costs actually incurred by the builder carrying out the work or the discrepancy between the amount awarded and the contract price.
The Court of Appeal also dismissed this appeal, ruling that only the High Court could overturn a principle that was said to be well-established. Not to be swayed, the Manns embarked on this challenged and took their case to the High Court.

The High Court judgment

All seven judges allowed the appeal. After two unsuccessful appeals, the third and last appeal by the Manns was a success.
The seven judges accepted that the law as currently interpreted had to be corrected.
Three judges refused to allow a claim on a quantum meruit where a contract between the parties had been terminated.
The four other judges accepted that a claim for quantum meruit could be made in limited circumstances: where work was commenced but not completed at the time of termination. However, any claim for quantum meruit was limited by the contract price that was agreed to by the parties.
Where the contract required the principal to pay only once for the “entire” work and labour performed by the contractor, and the contract is terminated before completion, then the contractor will be able to claim for all of the work it completed on a quantum meruit. This is because at the time of termination, the contractor had not yet accrued the contractual “right” to be paid – it had not completed all of the work.
However, the situation was different for the case of the Manns. Under their Contract, the principal was required to pay separate sums upon completion of certain stages of the work and labour. Paterson had fully completed some of these stages, while there was at least one stage which remained incomplete at the time of termination.
The majority decided that for completed stages, these could only be claimed under the contract, and damages would be assessed by reference to the contract price. It was only the incomplete stage that could be claimed on a quantum meruit.
The other important finding by the majority was that the amount to be claimed on a quantum meruit should not in the ordinary case exceed a fair value calculated in accordance with the contract price. This judgment left open the possibility of exceptions, including for example where constant breaches by a principal resulted in a huge cost overrun by the builder.
The Court was at pains to point out that, where a contract is still alive between the parties, parties cannot claim on a quantum meruit for a reasonable sum for the services rendered. The parties made an agreement that is still enforceable. That is all that courts will enforce.
What the decision did not resolve was the common case where a contract provides for progress payments, which are made on account only and are not final entitlements. This issue might be before the superior courts before long.

In some very complicated and differing judgments, the High Court has given a lot of clarity to an issue that has clouded the minds of lawyers, tribunal members and judges alike.
Builders and developers should be aware that even if there is no contract, where work is requested by developer and completed by a contractor, there will be a good case for a claim for damages.
Where a contract existed between parties at some point, this will be a significant factor in calculating the amount of damages, even where it is terminated.
If you or someone you know wants more information or needs help or advice, please contact us on +61 2 9248 3450 or email

Expertly building evidence: Lessons learned from White Constructions

Case note: White Constructions Pty Ltd v PBS Holdings Pty Ltd [2019] NSWSC 1166

In White Constructions, Hammerschlag J considered the issue of delay damages. White Constructions was the property developer of a site in Kiama NSW. The development involved the development and subdivision of 100 lots and required design and installation of sewer infrastructure. These works required a s 73 Certificate issued by Sydney Water before subdivision could occur. White Constructions appointed the Defendants to assist with the design and approval works needed as part of the development and resulting subdivision. A substantial part of the judgment was devoted to the preparing and designing of the sewer designs and the approval of Sydney Water, including the different types of sewage systems, Sydney Water’s preference in relation to these systems, preparation of option reports and correspondence between the Superintendent, the Defendants and Sydney Water.

The discussions between Sydney Water, the Superintendent and the Defendants took considerable time. As a result, White Constructions alleged that the delay in coming to the approved sewage design caused White Constructions to be liable to their building contractor for delay damages. In arguing the substance of the dispute, the parties tendered complex expert evidence. As a result, the Court appointed an expert to assist in interpreting and assessing the expert evidence presented.

With the expert’s assistance, Hammerschlag J criticised the experts’ approach to determining the delays attributable to the sewage works. Both experts used methods derived from the United Kingdom Society of Construction Law, the Delay and Disruption Protocol (the Protocol) in analysing the delay. The Protocol identifies six different methods of delay analysis, but Hammerschlag J held that the inclusion of a delay analysis method in the Protocol does not necessarily mean it should be used. While the Protocol methods have been endorsed in other cases, the analysis of delay must pay close attention to the actual evidence of what was happening on the ground of the project. The delay analysis must show and prove that, on the balance of probabilities, the delay:
• played a role in delaying the project;
• how it delayed the project; and
• how much it delayed the project.

This approach is in line with the common law common-sense approach to causation which the High Court referred to in March v E&MH Stramare Pty Ltd (1991) 171 CLR 506.

A lot of value in White Constructions comes from Hammerschlag J’s analysis of what evidence is needed in cases where delay is alleged in construction matters. Firstly, the Court stated that close attention must be paid to the facts of the matter, rather than the opinion of experts. This evidence should not be general in nature, but specific in that it is able to precisely identify delays in the project. This evidence should be a contemporaneous record of the project. A classic example of this kind of evidence is a site diary which records the day to day of the project, as well as specific cause and effect of each delay.
• what works were undertaken/completed;
• the instructions received from the client;
• the delays/any complaints of delays and how they have affected other activities;
• which personnel were onsite; and
• any other relevant details

The Court found that it was important that the contemporaneous record identified which activities were adversely affected by the delays. For example, if the works of one contractor were delayed and, as a result, caused delay for another contractor, the site diary should record these details. Failing to record these details means that it is harder, if not near impossible, for parties to establish that there was in fact a causal link and adverse effect.

How does White Constructions impact a project?

White Constructions shows the importance of proper project documentation. Most importantly, the site diary, or similar contemporaneous document, should be the primary record of the specific of what is happening on site and how specific events affect different contractors. Proper record keeping, while it may be administratively burdensome, allows the Court to analyse and determine the proper entitlements of the parties if the project ever comes into dispute. While other evidence can be adduced in pursuit of proving delay, it runs the risk of being generalist in nature and not enough to prove the causal link of the delays.

The lessons learned in White Constructions may also have some application in respect of other delay related mechanisms under construction contracts. For example, a comprehensive site diary would also be useful in determining any claim for an EOT claim. However, it is important to note that these types of claims are largely determined by the contract and its processes for determining what is in fact an EOT. Nevertheless, contemporaneous records of what has happened and how this has affected the project is useful in establishing a claim by a party as to their entitlements.
Another important point that comes from White Constructions is ensuring experts are given the proper lay evidence to ensure that they can properly opine on the project. While it does not displace the role of lay evidence such as site diaries, it can assist in assisting the Court in considering and making appropriate decisions on what the parties are entitled to.

If you or someone you know wants more information or needs help or advice, please contact us on +61 2 9248 3450 or email

What’s in a name?: The Supreme Court Reviews ambiguity in SoPA Payment Claims

Those who are familiar with the Building and Construction Industry Security of Payment Act 1999 (‘the Act’) will likely be aware that the provisions it contains are quite strict, and can leave parties out in the cold when they fail to comply with what are seemingly administrative oversights.

However, the overarching purpose of the Act is ultimately to keep money flowing through the construction system, aimed at ensuring those who perform building and construction works, or supply goods and services to construction projects are able to be paid.

The Supreme Court of New South Wales, in the recent decision of decision Modog Pty Ltd v ZS Constructions (Queenscliff) Pty Ltd [2019] NSWSC 1743 reminded parties of this fact when asked to turn its mind to issues of ambiguity in payment claims and whether a party could be allowed to have an adjudication determination quashed on the basis of technicalities.

The Facts

The facts of the case were reasonably clear and did not form a substantial component of the dispute between the parties. In September 2016, Modog Pty Ltd (‘Modog’) entered into a design and construct head contract with Wyndora 36 Pty Ltd (‘Wyndora’) for the development of senior living apartments at a property located along Wyndora Avenue in Freshwater. Modog then entered a sub-contract with ZS Constructions (Queenscliff) Pty Limited (ZS Queenscliff) for the demolition of the existing structure and the construction of the new seniors living complex, including apartments, basement parking and associated site works (‘the Sub-Contract’).

In March 2018, the Sub-contract was varied to engage ZS Queenscliff to provide Construction Management and procurement services, for which ZS Queenscliff would receive a project manager’s allowance, a contract administrator’s allowance and payments for subcontractors and suppliers to be made at the end of each month.

ZS Queenscliff was part of a wider group of entities, which also included ZS Constructions (Australia) Pty Ltd (‘ZS Australia’) and Zaarour Investments Pty Ltd had been engaged as the project manager for the project. Mr Christopher Zaarour was employed by ZS Queenscliff, was the director of ZS Constructions Pty Ltd and was the primary contact with Modog for the duration of the project.

The further sub-contracts on the project were administered by ZS Queenscliff, however invoices from sub-contractors had historically been issued to a mixture of Modog, Wyndora and ZS Australia, as opposed to ZS Queenscliff. During the course of the project, ZS Queenscliff and Modog adopted a progress payments process in which Mr Zaarour would, on behalf of ZS Queenscliff, prepare and email a payment summary sheet listing all amounts due for procurement and management services, as well as materials acquired, and work completed by trade contractors.

On 29 August 2019, Modog issued a Show Cause Notice to ZS Queenscliff and terminated the Sub-contract on 13 September 2019.

The Payment Claim and Adjudication

On 11 September 2019, ZS Queenscliff served a payment claim on Modog which was comprised of seven emails, from Mr Zaarour using an email signature from Zaarour Sleiman and containing a reference to ZS Australia in fine print at the bottom of the email.

The emails attached supporting invoices from suppliers, and followed the process adopted in earlier progress payments, where sub-contractors and suppliers had addressed their invoices to a mixture of the entities involved with the project, and not to ZS Queenscliff, who were issuing the payment claim.

The payment claim served on Modog was, as highlighted by the Court, unclear in the following respects:

  • It did not specifically assert that it was a progress payment claim under the Act;
  • It did not specify the reference date or refer to the clause within the contract upon which the progress payment was based;
  • It failed to ask Modog to pay ZS Queenscliff;
  • It did not include a total for the sum claimed, only determinable by a thorough review of the claims

Modog, in turn responded to the payment claim with payment schedules which certified the amount payable in respect of the Claim was nil.

The matter proceeded to an adjudication, where, on 23 October 2019, the adjudicator found in favour of ZS Queenscliff in the sum of $89,111.89 (GST incl.).

Modog challenged the decision of the adjudicator before the Supreme Court of Sydney, seeking orders that the Adjudication Determination of be deemed void, that the determination be quashed, and ancillary relief.

The Disputed Issues

At the hearing, Modog challenged the decision of the adjudicator on 3 primary grounds:

  • Whether the 11 September 2019 emails constituted a payment claim within the meaning of s13(1) of the Act;
  • If the emails did constitute a payment claim, whether the claim was sent by ZS Queenscliff as a person who was entitled to seek a determination for the purposes of s17 of the Act; and
  • Whether the Adjudicator has committed a jurisdictional error by allowing multiple payment claims in respect of a single reference date?

The Arguments, Decision and Reasoning

Issue 1: Was there a Payment Claim:

The argument advanced by Modog was effectively, ZS Queenscliff had not submitted a valid payment claim as they did not specifically demand payment from Modog (i.e.: did not say, Modog must pay ZS Queenscliff the sum of $X.). Modog relied on the fact that the invoices provided in support of the payment claim, were addressed to various entities, not ZS Queenscliff, and that ZS Queenscliff could not establish they were actually entitled to the money claimed for.

Modog argued that ZS Queenscliff had indicated invoices would be sent at a later time, which Modog was to pay as directed and that, pursuant to the Court’s decision in Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd, ZS Queenscliff had not served a payment claim pursuant to clause 13(1) of the Act.

The counter argument raised by ZS Queenscliff relied upon the case of Icon Co NSW Pty Ltd v Australia Avenue Developments Pty Ltd [2018] to support their position that Modog had simply misunderstood the payment claim, and that this could not be a basis for quashing the adjudicator’s decision. ZS Queenscliff argued the fact that the invoices were addressed to other parties did not invalidate the payment claim as they were simply disbursements to be paid to suppliers.

Ultimately, the Court favoured the position raised by ZS Queenscliff, noting there is nothing within the Act that requires a payment claim to state the total of the sum claimed. The Court stated and that even if the invoices in support of the payment did require Modog to direct payment elsewhere, as long as ZS Queenscliff had an entitlement to the sum under the contract, this did not invalidate the payment claim itself.

Issue 2: Was the Payment Claim Sent by ZS Queenscliff?

Modog then raised the issue that, as the 11 September 2019 email enclosing the payment claim was sent by Mr. Zaarour, using an email signature that did not belong to ZS Queenscliff, and the only legal entity named in the email was ZS Australia, the payment claim had not been served by the appropriate entity for the purposes of s17 of the Act.

The counter argument raised by ZS Queenscliff was that these errors were irrelevant in light of the fact that the previous correspondence between the parties had been exchanged in much the same way, including when detailing the terms of the caries contract agreements, and the point was not taken at the contract negotiation stage.

The Court ultimately agreed again with ZS Queenscliff, making the point that not was not actually disputed that ZS Queenscliff was entitled to make the payment claim and made the determination that the email payment claim had simply been sent by Mr Zaarrour in his capacity as the project manager, on behalf of ZS Queenscliff.

Issue 3: Was there an issue with multiple emails being used to comprise the payment claim?

Finally, Modog sought to raise the point that multiple invoices had been served on them in the emails from ZS Queenscliff and that it was not open for ZS Queenscliff to seek to have all invoices adjudicated.

Relying on the decision of the court in Rail Corporations of NSW v Nebax Constructions [2012] NSWSC6, this point ultimately failed as well, on the basis that, when viewed in the context of the previous conduct between the parties, and the nature of the invoices supplied, Modog had been more accurately provided with one payment claim, and a number of invoices in support of the claim.

What does this decision mean?

This decision serves as a timely reminder to parties that the Building and Construction Industry Security of Payment Act 1999 (‘the Act’) is intended to allow money to flow through to sub-contractors. Parties should be mindful of this purpose when considering whether to attempt to argue a payment claim on the basis of a minor technicality or ambiguity.

If you or someone you know wants more information or needs help or advice in relation to NSW’s security of payment legislation (or any other state’s or territory’s equivalent), please contact us on (02) 9248 3450 or email

See more! The superintendent and the principal

To those working at building sites, the term “superintendent” may seem as familiar and self-explanatory as “extension of time” or “practical completion”.

However, when disputes arise fine distinctions become important. Even experienced builders, just like experienced judges, have trouble working out what the superintendent is required to do in contentious times.

This is because the superintendent has multiple duties to different parties. They have the difficult job of navigating conflicting interests, and this becomes much harder when the relationship between the principal and contractor has deteriorated.

Although the precise duties of a superintendent will always depend on the terms of the contract, we will describe in general terms some obligations that participants in a building project must be aware of. We will also take a real-life case study to illustrate some of these points.

The role

Sometimes called “contract administrator” or “architect”, the superintendent’s precise role will vary as it is largely determined by the terms of the contract between the principal and the contractor. The parties may agree by contract to restrict or widen the superintendent’s functions, and courts will generally allow this.

However, there are a number of general commonalities to this role across different projects. In most cases, the superintendent has a dual role or function:

  1. On the one hand, the superintendent will often be the agent of the principal, and will perform functions on behalf of the principal such as issuing directions to the contractor, varying the scope, of works, making approvals, or receiving notices;
  2. On the other hand, the superintendent will often be responsible for certifying, assessing and valuing items under the contract, including progress claims, extension of time claims, liquidated damages, and practical completion.

The principal is required to ensure that for the second set of functions above, the superintendent act “honestly and fairly” (or otherwise, “reasonably and in good faith”).

Often this is an obligation to exercise impartial and independent judgment, and to reach a decision without taking improper considerations into account. They should afford procedural fairness to both parties, giving notice of the issues it is considering and allowing both parties to communicate to them their submissions.

In general, for these second set of functions, the interests of not only the Principal, but also those of the Contractor, must be considered. All too often, superintendents fail to understand their obligations of independence and this triggers court proceedings.

In practice, this dual role can be complicated. Superintendents are generally appointed by the principal. They are very often either a part of a firm consulting to the principal, or they are an employee of the principal. Even if there is no pressure exerted by the principal, they are paid by the principal. Exercising their judgment impartially in this context can be very challenging.

A superintendent is not a party to the contract. It is unlikely that they will themselves be the subject of court proceedings. However, their decisions may give rise to disputes as between the principal and contractor.

Case Study

The New South Wales Court of Appeal has given some guidance for what is considered appropriate action by a superintendent under a construction contract, in the case Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd [2002] NSWCA 211.

Peninsula and Abigroup entered into an AS2124 building contract. Abigroup sought payment of a progress claim. The following month, Peninsula issued a notice to Abigroup requiring Abigroup to show cause that a contractual right to terminate should not be exercised, and cross-claimed for liquidated damages under the contract.

In response, Abigroup moved to terminate the contract, claiming that Peninsula had breached the then Trade Practices Act (which has since integrated into the broader Australian Consumer Law), for failing to disclose an agency agreement for design and construction projects between Peninsula and the superintendent.

The Court considered the whether Peninsula contravened the Trade Practices Act for failing to disclose to Abigroup the agency agreement with the superintendent?

On appeal, Hodgson JA held:

“the superintendent is the owner’s agent in all matters only in a very loose sense, and that, when exercising certifying functions in respect of which the superintendent must act honestly and impartially, the superintendent is not acting as the owner’s agent, in the strict legal sense.”

The Court concluded that the superintendent is to exercise their power in the interests of both parties and, is to act honestly and impartially and not as an agent of the owner in undertaking certifying functions such as assessments of variations, delays and progress claims.

There was also an argument that the superintendent should have but failed to exercise its power to award an extension of time. It was common ground that Peninsula Balmain had caused delay, but that Abigroup had not applied for the extension of time or followed the proper procedure. However, the extension of time clause included a paragraph that read: “Notwithstanding that the Contractor is not entitled to an extension of time the Superintendent may at any time and from time to time before the issue of the Final Certificate by notice in writing to the Contractor extend the time for Practical Completion for any reason.”

Hodgson JA found that, even though Abigroup had not applied for the extension of time, “this power is one capable of being exercised in the interests both of the owner and the builder, and in my opinion the Superintendent is obliged to act honestly and impartially in deciding whether to exercise this power”. In the facts of the case, the finding was that if the superintendent had acted fairly and impartially, they would have awarded the extension of time. The date for practical completion was extended, and liquidated damages were reduced.

This ruling was dependent on the particular extension of time clause of the case, and the facts of the dispute. However, it powerfully reinforces the point that even though the superintendent is the agent of the principal, they are obliged to act honestly and fairly in discharging certain functions, unless the contract says otherwise.


In conclusion, the role of a superintendent is very demanding and requires a high level of understanding of contract law, the responsibilities, the specifics of the project, and a high skill of identifying and managing conflicts. If you have any queries about your obligations under a construction contract, please contact us on +61 2 9248 3450 or email



Quantum meruit claims and wrongful termination of a building contract

A building contractor may make a quantum meruit claim seeking payment of a fair and reasonable sum for work carried out and materials supplied in circumstances where the amount is not set out in contract. The expression quantum meruit literally means “the amount he or she deserves” or “what the job is worth”.

These type of claims generally arise when a builder carries out variations to the original scope of works, or a building contract has been frustrated, void or terminated.

In the recent judgement Mann v Paterson Constructions Pty Ltd, the Victorian Court of Appeal confirmed that a claim for quantum meruit is available to a builder, after the builder accepts the wrongful repudiation of a domestic building contract by an owner.

Further, s 38 of the Domestic Building Contracts Act 1995 (Vic) (the Act) does not apply to quantum meruit claims, at least where an owner has repudiated the contract. This was a good outcome for the builder, as the Act might otherwise have precluded or limited recovery by the builder.

This decision is especially important for builders based in Victoria and the particular statutory regime there, but as an appellate court decision it will be influential in jurisdictions across Australia.

Summary of facts

Peter and Angela Mann (the Manns) entered into a major domestic building contract with Paterson Constructions Pty Ltd (Paterson) for construction of two town houses with a completion date of 17 December 2014.

Disputes arose during construction, generally concerning delays, variations alleged to have been requested by the owners, and the payment of money. There were also issues concerning site access.

The first unit was constructed and handed over after the contract completion date. In April 2015, before the second unit was completed, the Manns terminated the contract, claiming that Paterson had wrongfully repudiated it.

As often happens in contract disputes, Paterson responded that it had not repudiated the contract. As such, by terminating without any basis, the Manns had wrongfully repudiated the contract. Patterson purported to accept this repudiation by the Manns, and sought recovery on a quantum meruit basis through the Victorian Civil and Administrative Tribunal (VCAT).

The claim included amounts for several variations carried out by Paterson.

The tribunal agreed with Patterson, and found that it was the Manns that had wrongfully repudiated the contract. They were ordered to pay Paterson $660,526.41 assessed by Paterson’s quantity surveyor to be the value of work performed, less the monies already paid by the Manns and the cost of some rectification work that they had to have completed.

The Manns appealed the decision, first in the Supreme Court of Victoria and when that failed, to the Victorian Court of Appeal.

Key issues

Essentially, the issues to be determined were:

  1. whether assessment of the amount recoverable should be limited to the builder’s actual costs rather than its fair and reasonable value;
  2. whether a quantum meruit award is available to a builder who accepts an owner’s repudiation of a building contract;
  3. whether s 38 of the Domestic Building Contracts Act 1995 (Vic) prevented a builder from recovering on a non-contractual quantum meruit basis.

The decision

The Manns were unsuccessful on all grounds. The Court of Appeal upheld the decisions of VCAT and the Supreme Court.

Assessment of amount recoverable

Relying on several authorities, the Court confirmed that “a builder seeking a quantum meruit amount following acceptance of an owner’s repudiation of a building contract is entitled to recover the fair and reasonable value of the benefit conferred on the owner by the work that the builder performed”.

A fair and reasonable value is not limited by the contract price, nor the actual costs incurred by the builder. In fact, where the scope of works that was in fact performed is significantly different to that set out in the original contract, little weight will be given to the original contract price.

Further, the actual costs incurred by the builder are not determinative and are not a cap on the amount of damages that a builder can recover on a quantum meruit basis.

The assessment of a fair and reasonable value of the benefit conferred on the owner depends on the circumstances and the availability and reliability of the evidence. In this case, evidence provided by Paterson’s quantity surveyor was considered comprehensive and was not sufficiently challenged. There was no evidence produced by another quantity surveyor contesting the assessment. Conversely, the Manns’ evidence constituted an incomplete spreadsheet which did not cover all of the work performed by the builder.

Overall, the tribunal member found Paterson to be a “truthful witness” whilst the Manns were considered unreliable. Although the Manns alleged that the variations were “suggested” by Paterson and not “requested” by them, the Tribunal did not accept this. It followed that, as the variations were requested by the Manns, they formed part of the quantum meruit claim.

Availability of quantum meruit claim

The Court confirmed that a quantum meruit claim (which is different to damages in contract) was available in circumstances where a builder accepts the repudiation of a building contract by an owner.

Several cases have recognised this principle and, despite controversy over these decisions, and the Manns’ suggestion to revisit this precedent, the Court considered it was not in a position to do so, concluding that only the High Court of Australia could do this.

Application of s 38 of the Domestic Building Contracts Act 1995 (Vic)

Section 38 of the Act deals with variations requested by an owner under a major domestic building contract. Unless a variation is minor and will not significantly affect the contract price, a builder must provide notice stating:

  • the effect the variation will have on the work as a whole;
  • a reasonable estimate of the length of the delay due to the variations;
  • the cost of the variation and its effect on the contract price.

If a builder does not comply with this section, no money is recoverable in respect of the variation unless VCAT is satisfied there are exceptional circumstances, that the builder would suffer hardship, and it would not be unfair to the owner if the builder was to recover the money.

The Court provided a lengthy analysis of the provision which it considered was “not clearly drafted”. Overall, however, the Court held that s 38 applied to claims in contract only and therefore did not impede the builder’s claim on a quantum meruit basis.

The Court also noted that, s 38 was essentially enacted to protect consumers from builders who might engage in the unscrupulous practice of underquoting projects to secure a contract and then recover the difference through subsequent unrecorded variations.

Consequently, there would be no loss of this consumer protection objective if the provision did not extend to claims in quantum meruit whereby an owner has wrongfully repudiated a building contract and might otherwise unfairly benefit from the builder’s work.


The legal principle of a quantum meruit claim is based on restitution and unjust enrichment; a party should not unfairly benefit at the expense of another when it would be unjust to allow the profiting party to retain that benefit.

The case is important for builders especially based in Victoria, in that it confirms that recovery on a quantum meruit basis rather than a contractual basis, may be available following the wrongful repudiation of a domestic building contract by an owner. In such circumstances, and where the claim is substantiated by the expert evidence of a quantity surveyor, a significantly better outcome might be achieved for the builder.

Additionally, the case confirms that the notice requirements for variations under s 38 of the Act may not apply where a building contract has been wrongfully terminated by the owners and a claim made by a builder on a quantum meruit basis.

Readers must, however, be aware that building disputes and quantum meruit claims can be complex and each case must be considered in light of the applicable state’s law and the circumstances of the case.

If you or someone you know wants more information or needs help or advice, please contact us on +61 2 9248 3450 or email

What are defects and how does a defects liability period work?

Every builder dreams of the perfect build without so much as a single fault being found with their work. However, the reality of most construction projects is that at some stage issue will be taken with some or all of the work, and a complaint of a defect will arise.

It is therefore important to understand exactly what is meant by the term ‘defect’, how a contractual ‘defects liability period’ works in practical terms, and whether there is any right to claim damages for covering the costs of rectifying a defect.

What exactly is a ‘defect’?

Ordinarily where the term ‘defect’ is used in a construction contract, it refers to work that has not been performed in accordance with the standards and requirements of the particular contract.

Matters to take into consideration in determining if there is a defect may include:

  • the quality of any work and the standard of workmanship;
  • whether design directives have been followed and correct materials have been used; and
  • whether the works have been performed in accordance with contractual specifications and drawings.

The ‘defects liability period’ and how it works

Most experienced builders and contractors would be familiar with the term ‘defects liability period’, as the term commonly appears in construction contracts including contracts based on pro forma Australian Standards building and construction contracts.

A defects liability period is the time period specified in the contract during which a contractor is legally required to return to a construction site to repair any defects which have appeared in that contractor’s work since the date of construction. Usually a defects liability period will start either at practical completion or upon reaching standard completion.

Even if you are familiar with the term it is important to check each new contract carefully to ensure you understand how long the defects liability period is and what is expected of you during that period.

A contract will specify the length of any defects liability period. Anywhere from 12 to 24 months is a fairly common period, although longer or shorter periods are also possible.

The length of any defects liability period will depend on the nature of the build, the type of work a particular contractor carries out and whether it is likely that any inherent defects may take time to be detected. For example, it is not uncommon for contracts involving complex builds and large government contracts to specify longer defects liability periods than a simple domestic building contract.

Why specify a defects liability period in a contract?

A defects liability period gives both a principal and contractor a degree of certainty as to the process that will be followed for making good any defects which may not be apparent at the date of practical completion.

In addition, a defects liability period can also be useful in providing a means of making good any defects that are apparent at the time of practical completion but which either do not need to be rectified prior to practical completion or perhaps cannot be easily rectified due to the presence of other contractors and trades still working on the build.

Wherever possible, it also makes practical sense to have a contractor who carried out the original work return to fix any defect as this contractor will be familiar with the site and the work in question. This should mean that rectification by this contractor is likely to be the most cost-effective approach to any rectification work. Also, a contractor may prefer to be the sole party authorised to carry out rectification work within a given period as the quality of the work and any subsequent repairs will potentially affect their reputation.

Once a defect is fixed does a new defects liability period commence?

Whether a new defects liability period applies to rectified work will depend on what the parties agreed, as reflected in the terms of each particular construction contract. It is important that both the principal and contractor are clear on this point prior to entering into a contract.

What right to damages exists for covering the costs of rectifying a defect?

Ordinarily any defect would be a breach of contract.

There have been several cases where the courts have considered whether the existence of a defects liability period in a contract alters or removes the need for a common law right to damages, with individual cases appearing to turn on their particular facts and the behaviour of the parties to the contract.

Generally, damages for any defects will cover the amount needed to ensure that the work is brought up to the standard that a contractor was initially required to provide under the contract.

Depending on the particular circumstances of a build, damages could include:

  • Recovery by the principal of any reasonable costs of demolition and rebuilding work; and
  • Any secondary or incidental costs, for example loss of income if the property is unable to be rented out due to the rectification works, or ancillary costs such as relocation expenses (such as where tenants are involved) or additional consultant’s fees directly related to the rectification works.

If circumstances dictate that carrying out rectification work in respect of the defects is not reasonable, for example if a building is so damaged or defective as to make the work needed impossible or impractical to carry out, a principal may be able to recover damages for any loss in the value of the building. In very limited circumstances, they may also claim for loss of enjoyment or inconvenience suffered, if there is no actual loss in value of the subject property but the principal, for whatever reason, is unable to use and enjoy the building as previously planned.

Help is available

It is always prudent to seek advice prior to entering into any contract to ensure that you fully understand your rights and responsibilities.

If you have already entered into a contract or carried out work and a complaint has now been made that your work is defective, you may be concerned about both your professional reputation and any potential financial implications for your business.

If you find yourself in a situation where this could be an issue, we recommend you seek legal advice as soon as possible.

If you or someone you know wants more information or needs help or advice, please contact us on +61 (0)2 9248 3450 or email

The devil with no detail: rectification of mistakes in contracts

In contract law, words used in a written instrument are powerful, but they are not invincible. One of the first major judgements of 2019 in New South Wales has reminded us all of one way to defeat even very clear wording of a contract.

This is the process called rectification, and it came up as part of a number of issues that the highest court in NSW had to consider. The case was Seymour Whyte Pty Ltd v Ostwald Bros Pty Ltd.

It has been said that rectification arguments are on the rise, as commercial contracts become more complex, records of contractual negotiation and correspondence are now electronic-based, and Ctrl+C and Ctrl+V have become prolific contract drafters.

Whether this is true or not, the case Seymour Whyte v Ostwald Bros and its lessons of rectification serve as a code red for everyone doing business with written contracts.

The case

The NSW Roads and Maritime Services was the head contractor for a roads project. The parties to this dispute were a contractor Seymour Whyte Constructions Pty Ltd (Seymour Whyte) and its subcontractor Ostwald Bros Pty Ltd (Ostwald Bros).

The parties had either through neglect or confusion inserted in their written contract two deadlines for Seymour Whyte to issue a payment schedule:

  • The box for Item 21 was ticked, which required payment within 30 days of a payment claim (which was to be made at the end of the month);


  • Special Condition 9.1 was inserted, requiring the payment to be made within 15 business days of receiving a payment claim.

On 28 July 2017, Ostwald Bros issued a payment claim for over $6.35 million.

Seymour Whyte replied with a payment schedule on 11 August 2017, in which it admitted it owed $2.50 million.

In a move that it will be regretting, Ostwald Bros delayed serving the Adjudication Application until 27 September 2017. Depending on which of the (1) or (2) due dates above applied, it was potentially going to be made out of time. The NSW Security of Payment Act s 17(3)(d) requires adjudication applications to be served within 20 days of a due date for payment, or they are invalid.

The arguments of the parties

Seymour Whyte argued that the Special Condition should apply (option (1) above). This deadline would have made the adjudication application invalid for being out of time. Option (1) would mean 18 August 2017 was the due date for payment, and therefore the adjudication application deadline was 15 September 2017.

Unsurprisingly, Ostwald Bros argued that option (2) above should apply, which would make the due date for payment 30 August 2017, and so the adjudication application was due on 27 September 2017. Its adjudication application would be valid.

This was a tricky argument to make by Ostwald Bros, as Special Conditions to a contract will usually take priority over General Conditions. Ostwald Bros argued that the courts should “rectify” the contract by deleting Special Condition 9.1. If there was no Special Condition, then the General Condition would apply.

The primary judge agreed with Ostwald Bros, and ordered rectification. Seymour Whyte appealed to the NSW Court of Appeal.

Common law rectification

Common law rectification was discussed but not argued in this case. However, it is useful to know that if an error in a written instrument is clear, and it is clear what a reasonable person would have understood the parties to have meant, then a court will correct the error. An example is where “lessor” is used in the contract, but it is clear that the parties meant “lessee”.

The law sometimes gets a bad reputation for rigidly following the literal meaning of words. However, courts will not do this if this literal meaning is absurd, and the intention of the parties is self-evident.

As Leeming JA pointed out in the case, “even in a formal legal document, the parties will make mistakes which are nonetheless readily identified and corrected.”

Equitable rectification

Courts in some cases recognise the separate process of equitable rectification. Equitable rectification is a process whereby a court will make a written instrument “conform to the true agreement of the parties where the writing by common mistake fails to express that agreement accurately”.

When argued successfully, it results in the actual intention of the parties overriding the “objective” intention of the parties (what is written in the instrument), a rare thing in contract law.

The Court of Appeal in Seymour Whyte v Ostwald Bros neatly spelled out what a court will (and will not) do when a party argues something went wrong in the contract negotiation and drafting.

A party arguing for rectification must prove three things:

  1. That at the time of executing the written instrument, the parties to the instrument had an “agreement” in the sense of a common intention; and
  2. That the parties intended that the written instrument was to conform to this common intention; and
  3. That the written instrument does not in fact reflect this common intention because of a common mistake.

The parties need not have actually communicated to each other this common intention; courts will look to words or actions.

As will become clear, equitable rectification is a very difficult argument to make. Courts have said that they are wary of rectifying an agreement, based on the logic that if the parties make the effort to write up their agreement, this should end the debate. Courts are also wary about aggrieved parties later claiming that an agreement it signed is inaccurate, to serve its purpose.

To be clear, this is not an argument of miscommunication. To convince a court to rectify a mistake, a party must successfully argue that a common intention was held by all the parties up until execution of the instrument. This common intention must be precise and not general.

Rectification in the case

The director of Ostwald Bros was an important source of evidence of Ostwald Bros’ subjective intention, as he had signed the instrument with the company secretary. However, he was not available to give evidence in court. This may have been fatal to the argument.

The Court considered the negotiating process of the parties. As usually happens in contract negotiation, both parties in their Departures Tables had argued back-and-forth about what the due date for payment should be. Ostwald Bros had initially pressed for “within 10 business days of the end of the month”. Seymour had rejected this, and it pushed for “within 30 business days” as being “Non-negotiable”.

Ironically, in the court proceedings the parties completely reversed their previous positions.

It was almost Seymour Whyte’s undoing that it had written “Non-negotiable” in pushing for 30 days. However, the NSW Court of Appeal was persuaded that in other provisions being negotiated, Seymour Whyte had also written this, and had later agreed to compromise on them. Nevertheless, it was a warning about what parties write during negotiations and how this can come back to haunt them.

Even though Seymour Whyte had sometimes paid Ostwald Bros 30 days from the end of the month, there was no evidence of this being an “invariable practice” or a misapprehension about the terms of the instrument.

Finally, the Court considered that as Items at the end had been ticked in a way that was internally inconsistent, it appeared that the Item 21 deadline of 30 days had been ticked in error.

The Court concluded that there was no case for rectification. Special Condition 9.1 remained in the subcontract, it prevailed over Item 21 and so the adjudication application was made out of time.


Extraordinarily, throughout the three hearings of Seymour Whyte v Ostwald Bros, no party could show the court direct evidence about how the Special Condition 9.1 came to sneak into the contract in the first place. The likeliest explanation was that a Commercial Manager of Seymour Group had instructed the lawyers to prepare a pro forma subcontract, compliant with a NSW government head contract in force at the time of negotiations.

Regardless of what happened, this is the first lesson: stray contractual provisions and special conditions slip through the cracks all the time, especially in the age of “copy and paste”. Lawyers and businesspeople need to be on high alert for this, it can save a lot of anxiety and legal fees.

Clearly the important takeaway is that parties cannot rely on courts fixing what may seem like obvious errors in drafting. Although it can happen, it is difficult and not to mention costly to persuade a court to do this. If there is an error, no matter how small it may seem, it is essential to negotiate a solution with the other party before a dispute arises. Once this happens, parties typically grab at every advantage they can and dig their heels in.

Parties must also be careful about how they talk about the written instruments that they sign. Courts will scrutinise all kinds of behaviour, including negotiating documents and correspondence between the parties, for evidence of intention or for evidence that a mistake has been made in drafting. Parties should negotiate believing that anything they say might later be important in a dispute.

Seymour Whyte may have won, but it was not at all a comfortable victory and slight differences in the negotiations may have changed the outcome of the case.

If you or someone you know wants more information or needs help or advice, please contact us on +612 9248 3450 or email

Giving Security in Construction Contracts

It is not uncommon in construction contracts for a principal or even a head contractor to insist on security from a contractor or subcontractor. We discuss below the purpose of the security, the different types of security commonly given and what happens when a call on a security is made.

Why is ‘security’ given in a construction contract?

The purpose of security is to provide the principal or head contractor with protection if the contractor or subcontractor fails to fulfil its obligations or defaults in some way on the contract. The principal or head contractor can recoup losses that arise because of the default.

The requirement for security to be provided may also be a sensible precaution for a principal, if a contractor or subcontractor is seeking pre-payment for building materials or goods (such as bathroom or kitchen fittings) that are yet to be used in the construction project.

Similarly, a contractor may be wise to insist that a principal (or head contractor in the case of a subcontractor) provides security for any payment obligations that may be owed to them. This way, the contractor can still obtain payment if the principal fails to pay what is owed. This is especially important if the principal or head contractor is what is commonly referred to as a ‘$2 company’, that is a company without any substantial assets.

Types of security

Depending on the size and scope of the contract there are a number of options that are commonly available for providing security. These include cash, bank guarantees and insurance bonds.

The simplest type of security is ‘retention money’ or a cash security. This is when a party who is paying another party under a construction contract holds a specified sum of money back from progress payment. This is usually a percentage of the amount payable, and is eventually released at practical completion of the contract or at the end of the defects liability period.

Alternatively, bank guarantees and insurance bonds may be used instead of cash. These forms of security essentially amount to types of promises by a third party to pay an amount of money when a specified event occurs. A ‘specified event’ may include such things as a default by the contractor to complete work on time, a default in payments by the principal (if the security is in favour of the contractor) or even something as simple as a demand for payment.

The advantage of bank guarantees and insurance bonds is that they do not impact as significantly on cash flow, for the party giving the guarantee, as a cash security will. However, in order to obtain a bank guarantee or bond the party providing the security is required to pay a fee to the bank or insurer and is likely, in the case of a bank guarantee, to be required to provide some kind of cash deposit or mortgage over real property or some other security.

Insurance bonds operate in a similar manner to a bank guarantee but generally only a fee for the bond is required, and there is no further security such a mortgage. The cost of the fee for an insurance bond will be determined by both the size of the security and the risk (as assessed by the insurer) of the contractor defaulting and the insurance bond being called upon by the principal.

In addition to the guarantees discussed above, a ‘parent company guarantee’ may be required by a principal if a contractor or sub-contractor is part of a wider organisation. The effect of this type of guarantee is that the parent company becomes responsible for any default by the contractor. This can include stepping in and taking over any of the contractor’s obligations in the event of a default. Ordinarily, whichever approach is adopted the liability of the parent company will be subject to an agreed cap.

Another security option is what is colloquially referred to as a ‘letter of comfort’. This type of security is less common and is generally only used when a contractor is not an Australian company or individual and may be offered as evidence of financial standing. However, it is important to realise that letters of comfort are not the same as a bank guarantee or an insurance bond. A letter of comfort may not necessarily give rise to an immediately enforceable legal right on the part of the recipient of the letter and should be treated with considerable caution and care.

What happens when a call on security is made?

Even if unconditional security is given, it is likely that a contract will stipulate restrictions on when the security is able to be called on. Often a contract will be drafted in such a way that calling on a security involves multiple steps. For example, it is usual that the principal will firstly need to show that they have an entitlement to call on the security. Secondly any required notice of the intention to call on the security will need to be given. Finally, any obligation to give notice within a certain period of time needs to be met.

Can a contractor stop a principal from calling on a security?

It is possible to commence court proceedings seeking an order for injunction, to prevent a principal from calling on a security. However, it can often be difficult to obtain orders granting such an injunction unless certain pre-existing conditions are satisfied. These conditions may include that the contract provides for a restriction on the right to call on the security and that there is a genuine dispute between the parties as to whether the principal has an entitlement to claim payment or money from the contractor or subcontractor.

In addition, whether an injunction is granted or not may ultimately turn on the question of where the ‘balance of convenience’ lies. This will be decided by whether or not convenience dictates that the security should not be disturbed until the dispute between contractor and principal is resolved.


The giving and receiving of security is an important part of construction contracts. However, it is important that all parties to the contract understand the scope of the security and any limitations that are imposed on the parties by the contract in relation to both providing, and calling on a security. This understanding is vital for avoiding costly misunderstandings and potential litigation.

If you are considering entering into a contract that provides for security we recommend you seek legal advice before agreeing to any security provisions. We would be happy to discuss the implications of providing or receiving a security with you.

If you or someone you know wants more information or needs help or advice, please contact us on +61 2 9248 3450 or email

Liquidated damages in construction contracts and the dangers of penalty

The inclusion of a liquidated damages clause in construction contracts is a common way of addressing what consequences will flow from a breach of contract during the life of the contract and when a build is ongoing. However, to be effective they must be well-drafted.

It is therefore important to understand exactly what is meant by this term, particularly if you find yourself in the unfortunate position of being the party in breach under the contract.

What are liquidated damages?

In their simplest form liquidated damages are fixed damages. They are a way of calculating what compensation a party will pay to another party to that contract, if it is in breach of its obligations. The party in breach is known as the defaulting party, and the party not in breach is the non-defaulting party.

A common example of liquidated damages clause is for delay of the contractor. This might be that the contractor will owe the principal $3000 in damages for each day of delay in achieving practical completion.

The exact amount of damages for a breach of contract can often be difficult to calculate at any given moment. Rather than a contract providing for an unquantified amount of damages, a liquidated damages clause fixes the sum of any damages in advance and includes details of the sum to be paid should a breach occur in the contract.

Are liquidated damages the same as agreed damages?

The short answer is ‘yes’. Other terms you may come across, which effectively mean the same thing as ‘liquidated damages’ include ‘pre-estimated damages’, ‘stipulated damages’, ‘liquidated and ascertained damages’ and ‘adjustment of time costs’.

Liquidated damages clauses in construction contracts

Liquidated damages clauses are useful in construction and other commercial contracts because they provide a degree of certainty for all parties as to what will happen should a breach of contract occur. A valid liquidation damages clause will fix the amount recoverable under the contract without the need for costly litigation.

It can sometimes be difficult to quantify the extent of any damage suffered when a build is ongoing. However, a liquidated damages clause will mean that here is no need for the non-defaulting party to undertake the time-consuming and complex process of proving their loss or damage with evidence. The clause also allows both parties to decide in advance exactly what their respective rights and liabilities will be in the event that a breach occurs.

Liquidated damages clauses are particularly relevant for construction contracts because they:

  • Allow the parties to quantify and be clear about risk allocation and their intentions should a breach of contract arise and also allow parties to clearly understand in advance how loss will be calculated should a breach occur;
  • Encourage all parties to comply with their respective contractual obligations in the knowledge that if a breach occurs the clause can be enforced without the need to resort to litigation;
  • Allow a contractor, at the time they are tendering, to factor the price of their exposure (the amount specified for liquidated damages it there is a breach) into their contract price;
  • Allow a contractor to compare the cost of accelerating works in order to achieve practical completion by a required date versus the amount of any liquidated damages sum that becomes due and payable if the date for practical completion is not achieved;
  • Provide a ceiling or cap on a contractor’s liability for damages for specified breaches of contract;
  • Provide a principal with a means to recover damages regardless of the amount of any actual loss; and
  • Do not require the non-defaulting party to mitigate their losses, in contrast to other forms of damages.

What if I want to claim non-liquidated damages?

In rare cases, a liquidated damages clause will mean the right to damages under general law, calculated in court, will be lost. If clear and unambiguous words indicate to a court that the party wanted the liquidated damages to be the entirety of their damages for an event such as delay, then that party will lose their entitlement to general damages. Regardless of actual losses, it will be capped.

As determined early last year in the Victorian tribunal case Leeda Projects Pty Ltd v Zeng, courts will assume that general damages are not excluded by a liquidated damages clause, but they can be persuaded otherwise. In one disastrous example in England, the parties had entered ‘£ nil’ in the liquidated damages clause for delay, and the court found that the surrounding circumstances showed that the parties intended to exclude all damages for delay when using this clause.

Liquidated damages vs. penalties

Understanding the difference between liquidated damages and penalties is vital for any contracting parties. This is because courts will enforce liquidated damages clauses, but they have also made it clear that they will not enforce a clause if it amounts to a penalty clause.

In the eyes of a court, a clause will be a penalty clause where the amount of fixed damages in the contract is not a genuine pre-estimate of loss or damage sustained by the non-defaulting party, or where it does not protect the legitimate commercial interests of the non-defaulting party. Rather, where a provision is a kind of punishment for non-observance of the contract, it will be a penalty.

It is not enough for parties to label a clause ‘liquidated damages’ in the contract, or to state that ‘the parties agree that this is not a penalty clause’. Courts will consider whether in substance it is a penalty.

The factors that determine whether a liquidated damages clause is a de facto penalty clause will vary from build to build and contract to contract. However, the courts have traditionally applied some key tests when considering whether a contractual provision goes beyond liquidated damages and is in fact a penalty.

The first key questions to consider are:

  • Is the amount provided for in the clause ‘extravagant and unconscionable’ when compared with the greatest possible loss that could possibly be shown to result from the particular breach of contract?
  • Does the breach consist solely of non-payment of money which results in a larger sum for damages being required?
  • Does the clause stipulate the same amount is to be paid for different breaches, even if the breaches vary in terms of seriousness?

If the answer to any of these questions is ‘yes’ then it is likely the clause will be a penalty and will not be enforceable.

What if actual loss can’t be quantified?

A clause may be a valid liquidated damages clause even if it is not possible to estimate in advance the actual or true loss that may be suffered. The main consideration is whether the liquidated sum is extravagant. Therefore, it is important to consider carefully the tests above when determining the size and scope of any liquidated damages clauses.


The difference between a reasonable liquidated damages clause and an unenforceable penalty clause can be a difficult line to draw, even when all parties to a contract enter into negotiations with the best of intentions.

Before entering into a contract or agreeing to a liquidated damages clause it is always advisable to seek legal advice to ensure that you understand the full ramifications of the agreement and to check that, if needed, the terms of the contract will be enforceable by you or the other party.

If you or someone you know wants more information or needs help or advice, please contact us on +61 2 9248 3450 or email

Employees, independent contractors and ‘shams’ in the construction industry

It is common for builders and operators in the construction industry to utilise contractors to carry out specific trade skills such as concreting, plastering, bricklaying and plumbing.

Business operators however, need to be cautious when ‘hiring’ skilled or other labour to ensure that they are not in breach of provisions of the Fair Work Act 2009 (Cth) (the ‘Act’). The Act prohibits a person from misrepresenting ‘employment’ as ‘independent contracting’, otherwise known as ‘sham arrangements’.

These sham arrangements have been predominant in the construction industry and are illegal.

It is important for business operators to understand the difference between an independent contractor and employee.

Example of a sham arrangement

Sham contracting came back to haunt Royans Wagga Pty Ltd in the 2017 case, Putland v Royans Wagga [2017] FCA 910. Royans Wagga was a business primarily running truck repairs. Linda and Shane Putland performed work for Royans Wagga over many years in a call centre, obtaining and passing on information about vehicle accidents to Royans Wagga sales representatives so that repair work could be secured.

If the Putlands could prove that they were employees and not independent contractors, they stood to gain significant back pay and payment in lieu of reasonable notice of termination. Meanwhile Royans Wagga stood down the barrel of a long list of contraventions of the Act and pecuniary penalties. It therefore denied the employer-employee relationship, arguing that the Putlands were independent contractors.

As is often the case, a number of factors pointed towards either relationship. Bromwich J had to balance these factors against each other and arrive at a conclusion.

Is someone an employee or an independent contractor?

The distinction between an employee and independent contractor is not always easy to determine. Generally, the Fair Work Commission or a Court will look behind the label given to the arrangement by the parties to identify the factual substance of the relationship. How one party or both parties view the relationship is not determinative of the issue.

Primarily, an employment relationship is an exchange of labour (time, skill and effort) for remuneration – the employee serves the employer as opposed to carrying on a business in his or her own right.

If the worker is acting as an entrepreneur who owns and operates an enterprise and as a representative of its own business, then it is more likely that the worker is an independent contractor.

The entirety of the relationship is analysed which might consider the following factors:

  • the degree of control that a business operator can exercise over a worker engaged to perform work (whether the control is actually exercised or whether just the potential exists);
  • whether the worker works exclusively for the business operator;
  • the provision of a uniform, business cards, tools etc. from the business operator;
  • whether the worker undertakes work personally or is free to delegate to others;
  • the location of the work;
  • the method of payment for the work performed – whether at an hourly rate or on completion of a specific project, whether wages are paid or there is a commission;
  • the responsibility for acquisition and maintenance of equipment;
  • the creation of goodwill of saleable assets through the work performed;
  • the allocation of risk and profit associated with the work;
  • the degree of integration the worker has with the entity for which it works;
  • the existence of leave, taxation, superannuation payments, etc;
  • how ‘business-like’ is the business of the business operator – are there systems, manuals, invoices etc;
  • the right of the business operator to dictate the place of work, hours of work etc. of the worker

This list is not exhaustive.

In the case above, Royans Wagga required the Putlands to obtain ANBs, it issued tax invoices in lump-sum amounts, it did not deduct income tax, it did not require uniforms to be worn, and it paid others to do work.

On the other side of the scales, the Putlands only worked for Royans Wigans, their telephone and internet accounts were paid by Royans Wigan, they had their office equipment supplied, they did not advertise any business run by themselves, their work led to Royans Wigans accruing goodwill, and they lacked ‘true autonomy’ in their work. Evidence also indicated the managing director of Royans Wigans had authority to control and issued directions and approvals to the Putlands.

Bromwich J decided it was an employee-employer relationship, to Royans Wagga’s significant detriment.

Misrepresenting employment as independent contracting

A business operator is prohibited from offering a person a role as an independent contractor when the relationship between the parties is really one of employer-employee.

Section 357 of the Act states: ‘A person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor.’

To take advantage of a sham arrangement, the employer would insist that the ‘contractor’ obtain an Australian Business Number (ABN) and create his or her own business before commencing work. The worker is generally responsible for paying his or her own taxes and insurances.

The worker is treated as an independent contractor and the employer circumvents the obligations that would normally arise from an employer-employee relationship. Consequently, by signing up as an independent contractor, the worker foregoes access to employment entitlements such as payment for annual and sick leave, long service leave, compulsory superannuation contributions and protection from unfair dismissal or termination of employment.

For contractors who are genuinely running a business as a profit-making enterprise this is not problematic. However, in the case of a sham arrangement, the workers may earn a higher hourly rate, but perhaps not conducive to a profit-making enterprise, from which they must pay their own tax, insurance and superannuation. In such circumstances, the sham arrangement results in the employer ‘getting its cake and eating it too’.

Sham arrangements are illegal

It is illegal to inform a someone that he or she is an independent contractor if they are actually an employee. It is also illegal to dismiss an employee or threaten to dismiss an employee for the purpose of ‘re-engaging’ them in predominantly the same work as they performed whilst they were employed.

Similarly, a person must not induce a former employee to carry out the same type of work as when they were employed under the guise of an independent contractor arrangement. Where an employer employs or has at any time employed an individual to perform particular work, the Act also makes it illegal for the employer to make a statement that they know is false in order to persuade the individual to perform substantially the same work as an independent contractor.

Businesses entering sham arrangements risk significant civil penalties and potential claims for back-pay of employee entitlements such as annual leave payments, sick leave and superannuation contributions.

Why do businesses use sham arrangements?

A sham arrangement may result from simple ignorance on the part of the business owner or a desire to minimise costs. A worker may even indicate that he or she is ‘happy’ with the arrangement.

Sham arrangements may be prevalent during the start-up phase of a new business where cashflow is limited and the future success of the enterprise unknown. Conversely, businesses may have been running sham arrangements for some time.

The temptation to use ‘contractors’ instead of employing staff usually flows from a desire to circumvent the financial and other responsibilities that arise from an employment relationship. If the business takes on workers as independent contractors rather than as employees, the business need not comply with nationally-recognised employment conditions, annual leave, sick leave, workers’ compensation or termination processes.


If you are considering engaging workers for your building projects, you should think carefully about the arrangements to determine whether your workers are truly independent contractors or employees. If you are unsure, obtain legal advice.

Failing to do so could lead to significant costs down the line.

Please contact us should you require any further information, on +612 9248 3450 or email