Pavey & Matthews Pty Ltd v Paul [1941] HCA 35

High Court of Australia Mason Wilson Brennan Deane and Dawson JJ Pavey & Matthews Pty Ltd v Paul (F C 87/004) [1987] HCA 5

Catchwords

Contract - Quantum meruit - Restitution - Unjust enrichment - Building contract not enforceable unless in writing - Claim for reasonable remuneration for work done under oral agreement - Basis of entitlement - Builders Licensing Act 1971 NSW, s 45

Mason and Wilson JJ

1. The important issue in this appeal is whether a builder may bring an action in indebitatus assumpsit for the value of work done and materials supplied under an oral building contract, notwithstanding the provisions of s 45 of the Builders Licensing Act 1971 NSW (the Act). That section provides:

A contract (in this section referred to as a "building contract") under which the holder of a licence undertakes to carry out, by himself or by others, any building work or to vary any building work or the manner of carrying out any building work, specified in a building contract is not enforceable against the other party to the contract unless the contract is in writing signed by each of the parties or his agent in that behalf and sufficiently describes the building work the subject of the contract. intention, the expression "building work" to mean:

3.

(1)

(a) the work involved in the carrying out of the construction of, the making of alterations or additions to, or the repairing, renovation, decoration or painting of, a dwelling, where that work does not consist solely of work of one class or description that is prescribed for the purposes of the definition of "trade work" in this subsection; or

(b) trade work, but does not include any work, or work of any class or description, that is prescribed for the purposes of this definition

2. The appellant, which holds a builders' licence under the Act, sued the respondent in the Supreme Court of New South Wales for $26,945.50 being an amount claimed to be due and payable under a quantum meruit. The appellant calculated this amount as the sum payable, after alleging that the amount of $62,945.50 "represents a reasonable sum for the work done and materials provided" and giving credit for a payment of $36,000. The respondent, after putting in issue some allegations of fact in the appellant's statement of claim and denying the reasonableness of the charges, pleaded that the contract was a building contract and as such was unenforceable by reason of s 45.