Lumbers v W Cook Builders Pty Ltd (in liquidation) [2008] HCA 27

HIGH COURT OF AUSTRALIA

GLEESON CJ

GUMMOW, HAYNE, CRENNAN AND KIEFEL JJ

MATTHEW LUMBERS AND ANOR APPELLANTS

AND

W COOK BUILDERS PTY LTD

(IN LIQUIDATION) RESPONDENT

Lumbers v W Cook Builders Pty Ltd (in liquidation)

[2008] HCA 27

18 June 2008

A39/2007

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Supreme Court of South Australia made on 1 March 2007 and, in their place, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of South Australia

Representation

D F Jackson QC with M R Burnett for the appellants (instructed by Lynch Meyer Lawyers)

G O'L Reynolds SC with R D Ross-Smith and B R Kremer for the respondent (instructed by Rick Schroeder)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Lumbers v W Cook Builders Pty Ltd (in liquidation)

Quantum meruit – Services performed and subcontractors paid – Entitlement to compensation – Appellants entered into oral agreement with building company for construction of domestic dwelling – Respondent performed some of the construction work – Appellants did not request respondent perform any services or pay any subcontractors – Whether claim for quantum meruit or money paid available.

Restitution – Unjust enrichment – Appellants accepted benefit of construction work performed by and at the expense of respondent – Claim that it would be unconscionable for appellants to retain benefit – Appellants made no direct request of respondent – Whether restitutionary claim available.

Contract – Domestic building contracts – "Cost plus" oral agreement between building company and owners – Informal reorganisation within building company's corporate group – Benefit and burden of oral agreement informally assigned by building company to related company – No notice given to owners of reorganisation or assignment – Some subcontractors paid directly by owners – Acknowledgement by building company that owners had met all progress claims made and paid all monies due under the oral agreement – Whether related company can demand compensation from owners for difference between amounts paid by owners and amounts outlaid by related company together with margin for supervision and profit.