Mann v Paterson Constructions Pty Ltd [2019] HCA 32

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

PETER MANN & ANOR APPELLANTS

AND

PATERSON CONSTRUCTIONS PTY LTD RESPONDENT

Mann v Paterson Constructions Pty Ltd [2019] HCA 32 9 October 2019 M197/2018

ORDER

1. Appeal allowed with costs.

2. Set aside orders 1 to 3 of the Court of Appeal of the Supreme Court of Victoria made on 12 September 2018 and, in their place, order that:

(a) the application for leave to appeal be granted;

(b) the appeal to the Court of Appeal of the Supreme Court of Victoria be allowed with costs; and

(c) orders 2 to 5 of the order made by Justice Cavanough of the Supreme Court of Victoria on 21 March 2018 be set aside and, in their place, it be ordered that:

(i) the appeal to the Supreme Court of Victoria be allowed with costs;

(ii) the orders of the Victorian Civil and Administrative Tribunal made on 12 December 2016 be set aside; and

(iii) the matter be remitted to the Victorian Civil and Administrative Tribunal for further determination according to law.

On appeal from the Supreme Court of Victoria

Representation

T J Margetts QC with G F Hellyer and A C Roe for the appellants (instructed by Telford Story & Associates)

J P Moore QC with A J Laird and J A G McComish for the respondent (instructed by Kalus Kenny Intelex)

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

CATCHWORDS

Mann v Paterson Constructions Pty Ltd

Restitution – Unjust enrichment – Work and labour done – Where land owners and builder entered into contract to which Domestic Building Contracts Act 1995 (Vic) applied – Where contract provided for progress payments at completion of stages – Where owners requested, and builder carried out, variations to plans and specifications in contract without giving written notice as required by s 38 of Act – Where owners repudiated contract after builder raised invoice claiming for variations – Where contract terminated by builder's acceptance of owners' repudiation – Whether s 38 of Act applied to limit amount recoverable by builder for variations – Whether builder entitled to recover in restitution as alternative to claim in damages for breach of contract – Whether contract price operated as ceiling on amount recoverable by way of restitution.