CMF Projects Pty Ltd v Riggall & Anor

Court of Appeal (Holmes, Gotterson and Morrison JJA)

2 December 2014

In this matter the appellant had entered into a “costs plus” contract with the respondent in relation to the renovations of the respondents’ residence.  In response to the defence that the plaintiff was not entitled to recover because the contract did not comply with the requirements of the Domestic Building Contracts Act 2000 (the “DCBA”) in respect of “costs plus” contracts the appellant pleaded an alternative claim for a quantum meruit.  At first instance the paragraphs of the pleading in relation to the quantum meruit claim was struck out 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 impliedly exclude the right to recover upon a quantum meruit. 

In determining whether or not the statutory provision excluded the claim, Gotterson JA considered that there was a presumption of statutory interpretation against the abrogation of common law rights and that if such rights are to be abrogated such an intention should be clearly expressed even if that be by necessary implication.

Here there was no necessary intention to exclude the right to recover under a quantum meruit claim.  The right granted by s 55(4) 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.

[Editor’s Note for an explanation as to why the action of indebitatus assumpsit (being in this case the quantum meruit claim) was not an action “on the contract” see the discussion in Gino D’Alessandro Constructions Pty Ltd v Powis [1987] 2 Qd R 40.]