How a quantum meruit claim is to be established

Jason and Michelle Zammit trading as Zammit’s Quality Constructions v Saul Markunsky and Shereen Markunsky [2015] NSWCATCD 21 at [47],[48]

At [47] – Judgement of Bryne J. in Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221 as summarised in Dorter & Sharkey Building and Construction Contracts in Australia, Second Edition as setting out the following principles:

1.‘The courts task is not to assess damages for breach of contract, but to ascertain what is fair and reasonable compensation for the benefit of the services performed, and accepted actually or constructively by the recipient;

2.The enquiry is not primarily directed to the cost to the plaintiff of performing the work since the law is not compensating that party for loss suffered; however, the actual cost should not be ignored;

3.Any price or commission agreed between the parties may be received as evidence of the value the parties themselves put on the services performed, even where the services have not been totally performed, but the agreed amount is not determinative of the matter.’

At [48] – Principles relevant to how a quantum meruit is assessed were also discussed by Barrett J in Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd.

At [70] – paragraph 82 of Barratt J’s decision in Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd justifies an approach where defective work is taken into account in the assessment of a quantum meruit claim. His honour stated:

‘The quality of the work and matters such as its correspondence with specification and fitness for its intended purpose are thus elements of the process of valuation of work for quantum meruit purposes. It follows that the referee was correct in applying a deduction for defects rectification in determining the quantum meruit sum.’