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