BUILDING CONTRACTS – WHETHER QUANTUM MERUIT CLAIM EXCLUDED

 CMF Projects Pty Ltd v Riggall [2014] QCA 318

In this matter the builder entered into a “costs plus” contract with the owner in relation to the renovations of the owner’s residence. In response to the owner’s defence that the builder was not entitled to recover because the contract did not comply with the Domestic Building Contracts Act 2000 (the “DCBA“) the builder pleaded an alternative claim for quantum meruit.

An action on a quantum meruit is an action grounded on the promise, express or implied, to pay the plaintiff for work and labour so much as his/her trouble is really worth.

At first instance the quantum meruit claim was struck out by the Court on the basis that DCBA impliedly excluded such a claim

The Court of Appeal (Gotterson JA with whom Holmes and Morrison JJA agreed) upheld the appeal on the basis that the common law claim for a quantum meruit was not excluded by the operation of the Act. The following points arise from the decision of Gotterson JA.

A claim in quantum meruit is not a claim on, or for the enforcement of, the contract but a claim which is independent of contract.

By the quantum meruit claim in the present matter the appellant was not attempting to enforce the cost plus contract which was not in accordance with the DCBA.

Although there existed a provision in the DCBA which provided for a builder who had not complied with the requirements of a cost plus contract to apply to QCAT for an award of the cost of providing the contracted services and a reasonable profit (s 55(4)), that provision did not exclude the right to recover upon a quantum meruit.

The court found there was a presumption of statutory interpretation against the removal of common law rights and that if such rights are to be removed the intention should be clearly expressed.

There was found to be no necessary intention to exclude the right to recover under a quantum meruit claim. The right granted by s 55(4) of the Act was not a right to recover a sum of money as compensation for the work done. The right created by that section is much more limited than the rights which are enforceable by a quantum meruit claim such that those rights cannot be seen to have been provided in lieu of the right to pursue the quantum meruit claim.