EARTHWORKS PTY. LIMITED THE GLADSTONE HARBOUR BOARD WELLLAMS de 611953 Jate delvered 21 JuLy 1993 JUDGMENT (ORAL) EARTHWORKS PTY. LIMITED ve THE GLADSTONE HARBOUR BOARD JUDGMENT (ORAL) WILLIAMS J. This is an appeal from an order of the Full Supreme Court of Queensland dismissing an appeal by the plaintiff company in a suit in which it was non-suited by the learned trial judge. The plaintiff which was incorporated on 2nd April, 1951, sued for the balance of noneye/aue "rom the defendant to the plaintiff for work and labour done and materials supplied by the plaintiff to the defendant at its request. The amount claimed in the statement of claim was £8,656.13. 9, but I understand that the plaintiff now claims a sum of approximately £10,000. The way in which this claim arose is, shortly stated, as follows. The defendant Board advertised for tenders for the excavating, carting and placing in position to height specified, of some 150,000 cubic yards or more of filling material in order to reclaim approximately six acres of foreshore at Auckland Point, Gladstone. Mr. Re Wiles put in.a tender to do this work for 5/4d. per cubic yard solid measurement at the quarry site. The tender which he signed was stated to be for and on behalf of a company to be formed. He received a letter in reply from the Secretary of the Board on the 31st October, 1950, referring to this reclamation job, as it was called, which said: "As your tender, 5/4d. per cubic yard (solid) was the lowest received for the above job, the following recommendation has been submitted to the Under Secretary to The Treasury in connection with same:- 'That, providing Mr. Wiles of Wiles Welding Works, 861 Ann Street, Brisbane, can satisfy the Treasury as to the bona fides of the Company proposed to be formed, and of its ability to carry out the work tendered tor, authority to be given for the acceptance of his tender.'" I emphasize the words "for the acceptance of his tender". A further letter followed from the Secretary of the Board on the 27th November, 1950, which said: "I am directed to advise that your tender, five shillings and fourpence (5/4d.) per cubic yard, solid measurement at the quarry site, for the excavating, carting and placing in position to height specified, some 150,000 cubic yards or more of filling material in order to reclaim approximately six (6) acres of foreshore at Auckland Point, Gladstone, has been accepted by the Board. Time for completion thirty (30) weeks from commencement". It is perfectly clear from Kelni Baxter, L.Re 2 CoP. 174, and all the subsequent cases, many of which were recently reviewed by this Court in Vickery ve Woods, 85 CLR. 336, that it is quite impossible for anyone to make a contract as agent for a company which has not yet been incorporated, so that, although Wiles purported to tender for and on behalf of a company to be formed, the contract was in law a contract between Wiles and the Board which was personally binding on Wiles. It was a contract on the part of Wiles to perform the specified work on behalf of the Board, the payment to him for the work to be done to be 5/#d. per cubic yard. The work was actually commenced in January 1951 and carried on in the name of two companies which it was proposed to form at the time, but which were never incorporated, and it had progressed to a considerable extent and payments had been made prior to the incorporation of the plaintiff company. The Board was informed that this company had been incorporated on the 2nd April, 1951, by a letter of the 3rd April, 1951, from the solicitors for the plaintiff, or for Mr. Wiles,whichever they were,to the Board, stating that they enclosed copy of certificate of incorporation and had to advise that the first directors were Leslie George Morwood and Wiles. The letter stated that the change in name arose through the Companies! Office having already received an application for registration in the name previously selected. The letter also stated that the contract would be completed and all matters done in the name of the above company. No reply was received from the Board to this letter. When the matter came before the Full Supreme Court the learned Chief Justice delivered a judgment with which the other two members of the Court agreed. The material passage in the judgment of the Chief Justice reads as follows: "Either there was a contract between the Gladstone Harbour Board and Wiles for work which was performed by the Plaintiff after its incorporation as the agent of Wiles, or there was a novation of the contract between the Gladstone Harbour Board and Wiles whereby after the incorporation of the plaintiff in April 1951, by the consent of Wiles, the defendant and the plaintiff a new contract was substituted for the original contract and the rights and liabilities of the several parties were determined by Wiles's being discharged from the obligations of his contract and the plaintiff's being substituted for him as a contracting party with the defendant. Whichever is the correct construction of the effect of the dealings between the parties, the plaintiff's claim in this action must fail." I agree substantially with this passage, although it is not necessary, to my mind, to tie oneself to the fact that such part of the work as the plaintiff company performed after its incorporation was performed by the plaintiff as the agent of Wiles. The purpose of this appeal is to seek anew trial, so that we start with the premises that the learned trial judge was wrong in non=suiting the plaintiff and the Full Court was also wrong in upholding him if there was any evidence on which the jury could reasonably find an obligation in favour of the plaintiff imposed on the Board by implied contract or rule of law to the effect stated in the plaintiff's claim. As I understand Mr. Hart's argument he says there was evidence on which the jury could reasonably find that it was never intended that Wiles should perform the work for which he had tendered but that it was to be performed by the company which he intended to form and by that company only on behalf of the Board and that everyone concerned believed that after the company had been incorporated there was a contract -& - to do the work between the plaintiff and the defendant, whereas in law there was no such contract. Accordingly the legal position was that the company had done the work on behalf of the defendant and the defendant had accepted it. Applying the principles which are discussed in Craven-Ellis v. Canons, Limited, 1936, 2 K.B. 403, in Johnsons Tyne Foundry Proprietary Limited v. Maffra Corvoration, 77 ColeRe Ste and in other cases he sought to bring the plaintiff's case within the proposition that an implication arises by contract or rule of law to the effect that in such circumstances a person on whose behalf work is done is bound to pay a reasonable amount to the person who does the work from which he has benefited and can be sued on the common money counts for a quantum meruit. He then sought to show from the evidence that the 5/4d. per cubic yard was not a reasonable amount to pay for the work and that in addition to the payment of 5/4d. a cubic yard which the Board has already paid or is willing to pay, the plaintiff should recover £10,000 or thereabouts as additional remuneration for the work which it did in the reclamation. To my mind no inference was reasonably open to the jury on the facts on which such a claim could be based. at? two inferences were reasonably open to the jury. Those were the inferences to which the learned Chief Justice of the Supreme Court referred. There does not appear to me to be any evidence that the original contract entered into between Wiles and the Board was ever novated, thet is to say any evidence that, with Wiles's consent, there was substituted for that contract a contract between the plaintiff company and Wiles. The only reasonable inference open to the jury on the evidence seems to me really to be that there was one contract and one contract only from the beginning to the end, that is to say the contract between Wiles and the Board, and it is immaterial whether the work done by the plaintiff pursuant to that contract was done by it as the agent of Wiles or as an independent contractor. So far as the Board was concerned it was immaterial what relationship existed between the plaintiff and Wiles. Wiles was the person who had contracted to do the work and he was the only person who could claim payment from the Board. If contrary to my opinion any other inference is reasonably open on the facts, it could only be the inference that there had been a novation of that contract so that from a certain date, presumably the 2nd April, 1951, the plaintiff company was substituted for Wiles as the principal to whom the Board looked for the future performance of the work and the person who could claim payment from the Board for the work which was done. after that date. But the contract would, of course, be novated in its entirety and the only payment which the plaintiff could claim under the novation would be the payment provided for in Wiles's tender, that is the payment for the work at 5/id. per cubic yarde For these reasons I am of opinion that the appeal must be dismissed with costs. WEBB J. : I agree, KITTO J. : I agree. TAYLOR Je : I also agrees Appeal dismissed with costs.