Contract Law 2014

SUMMARY OF THE FACTS

1. The plaintiff is a landscaper;
2. The defendant is a Bed and Breakfast operator;
3. The plaintiff tendered for a contract with the defendant;
4. The defendant expressed to the plaintiff that he would be most likely to award the contract to her
5. The defendant asked the plaintiff to provide a revised tender in line with a new project;
6. The defendant subsequently advised the plaintiff that he had awarded the contract to another party.
7. The defendant provided information contained in the plaintiffs revised tender to the contractor to whom he awarded the contract who used some of the contents for his benefit.
8. The plaintiff subsequently sued the defendant for restitution.

DEFENDANT’S SUBMISSIONS

1. THE PLAINTIFF PROVIDED SERVICES TO THE ENRICHMENT OF THE DEFENDANT THAT SHE WOULD NOT TYPICALLY HAVE DONE WITHOUT CHARGE AND DID SO ON THE INTIMATION THAT A CONTRACT WOULD BE AWARDED TO HER. THEREFORE, THERE WAS A TOTAL FAILIURE OF CONSIDERATION BY THE DEFENDANT WHO WAS UNJUSTLY ENRICHED AT THE DETRIMENT OF THE PLAINTIFF WHO SEEKS RESTITUTION PURSUANT TO QUANTUM MERUIT.
1.0 THE PLAINTIFF PROVIDED SERVICES TO THE ENRICHMENT OF THE DEFENDANT THAT SHE WOULD NOT TYPICALLY HAVE DONE WITHOUT CHARGE AND DID SO ON THE INTIMATION THAT A CONTRACT WOULD BE AWARDED TO HER. THEREFORE, THERE WAS A TOTAL FAILIURE OF CONSIDERATION BY THE DEFENDANT WHO WAS UNJUSTLY ENRICHED AT THE DETRIMENT OF THE PLAINTIFF WHO SEEKS RESTITUTION PURSUANT TO QUANTUM MERUIT.
1.1 To the first element of unjust enrichment, the defendant must be enriched.

1.1.1 Enrichment of the defendant through the provision of services takes place were the services were requested , the defendant has freely accepted the services or that the defendant has obtained an incontrovertible benefit from the services .

1.1.2 The defendant gained objective benefit from the additional plans provided to him by the plaintiff when he provided them to the contractor for the project for reference who in turn used the measurements within the plans for the work he carried out at the defendant’s property. An incontrovertible benefit to the defendant was conferred by way of a saved expense of not having to have those plans and measurements drawn up. The defendant was also able to draw upon the information contained in the plans to determine whether the revised ‘tropical’ theme would suit his needs.

1.2 To the second element, enrichment of the defendant must be at the plaintiffs expense .

1.2.1 The aim of restitution is not to provide compensation for loss but to restore unjust enrichments.

Commissioner of State Revenue v Royal Insurance Australia (1994) 182 CLR 51

1.2.2 The plaintiff spent a considerable amount of time providing the information for the defendant that in any usual circumstance she would have been expected to be paid for. The plaintiff would not have typically provided this work gratuitously. The extra work she did for the defendant eroded her capacity to work on other projects therefore reducing her capacity to earn income.

1.3 To the third element, the enrichment must be unjustified .

1.3.1 We concede that the defendant asked the plaintiff to revise her tender in line with the defendant’s new concept however the consideration intimated in the bargain for the extra work of providing the revised tender was that the subsequent contract would be awarded to her. It would be unjust for the plaintiff to retain the benefit of the plaintiffs work as she only agreed to do so as the defendant expressly stated that her proposal was the most attractive and he would be likely to engage her services. This statement by the defendant induced the plaintiff in to doing extra work in the anticipation of a contract that was not forthcoming and as a result there was a total failure in consideration.

1.3.2 The plaintiff did not provide the services on her own initiative nor would she have ordinarily carried out this extra work free of charge. At the point the plaintiff took on the extra work it was the plaintiff who assumed all of the risk of the contract not materialising and where the defendant stood to gain from the benefit of the services she provided . The services performed by the plaintiff were never intended to be gratuitous and as a result of the failure of the anticipated contract the defendant was unjustly enriched at the expense of the plaintiff.

1.4 Where two parties proceed upon a joint assumption that a contract will be entered in to between them and one party provides services that it would not normally do so without charge, then that party is entitled to restitution if the other party unilaterally abandons the project not for any bona fide reason disagreement coming from the terms of the contract.

Sabemo Pty Ltd v North Sydney Municipal Council [1977] 2 NSWLR 880;
Brewer Street Investments Ltd v Barclays Wollen Co Ltd [1954] 1 QB 428

1.4.1 The possibility of a contract broke down between the parties because the defendant decided to unilaterally abandon the project with the plaintiff, not down to fault of the plaintiff or any bona fide disagreement , but on the whim of the defendant.

1.5 Given these facts it would be unjust for the defendant to keep the benefit of the revised tender, which was at the expense of the plaintiff, without passing due consideration to the plaintiff and therefore an order for restitution quantum meruit should be made.
If it pleases, those are the submissions for the defendant.