Justice Dawson said this some 25 years ago in the NSW Minister
for Works' application to the High Court seeking permission to
appeal a fair value award in favour of construction contractor,
Renard Constructions (ME) Pty Ltd. In Sunwater Ltd v Drake Cole Ltd
and another ("Sunwater"), the Queensland Court of Appeal
("QCA") affirmed that, 25 years later, this principle
still holds true.
In Sunwater, a construction contractor sought payment of the
fair value (quantum meruit) of its work, where:
the owner had asked the contractor to do that work;
when requesting that work, the owner knew that the contractor
expected to be paid for it (which was implied in the commercial
relationship between owner and contractor); and
no contract between owner and contractor provided for when or
how much the contractor was to be paid for its work.
The owner tried to defend the contractor's claim, saying
that in later, unrelated dealings between the same two parties, the
contractor had acted unreasonably.
The owner tried to argue that the contractor's claim for
payment without a contractual right to payment was based on the
concept of "unjust enrichment". According to the owner,
this meant that the Court had to decide whether the owner
"unjustly" became enriched as a result of the
The QCA was so unconvinced by this defence that it did not even
allow the owner to put it forward at a trial. Instead, the QCA
struck out the defence as not recognised by the law and upheld,
without a trial, the contractor's claim to be paid the fair
value of its work.
The lesson is: a contractor has an unqualified legal right to be
paid for work that the owner requested, even if there is no
contract that says so. Where the right to payment is not
contractual, that right will have an alternative legal basis called
"unjust enrichment". Despite the use of the word
"unjust", this right to be paid is a strict legal right
and cannot be taken away simply because the payment might be
perceived to be "inequitable in all the circumstances"
(as Sunwater put it).
After all, it can never be unjust to be paid what your work is
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