Cook's Construction Pty Ltd v SFS 007.298.633 Pty Ltd

The appeal before the Court of Appeal was between Cook's Construction Pty Ltd (appellant) and SFS 007.298.633 Pty Ltd (respondent). The case arose from a sub-contract agreement where the appellant warranted to the respondent that it was a licensed builder. The respondent paid the appellant for services rendered on the basis of this warranty. However, it was later found that the appellant was not a licensed builder. The respondent sought to recover the moneys paid under the mistaken belief that the appellant was entitled to them under the contract. The appellant argued that the respondent's claim should fail as it did not disprove the appellant's entitlement to reasonable remuneration under the Queensland Building Services Authority Act 1991 (Qld). The appellant also claimed that the respondent's claim was reduced by the appellant's claim for reasonable remuneration and that the respondent's claim failed because it did not particularise the appellant's reasonable remuneration to be deducted from the claimed amount.

The central legal issue before the court was whether the respondent's claim for moneys had and received was maintainable. The court also needed to determine if the respondent's claim was reduced by the appellant's claim for reasonable remuneration, and who bore the burden of proof in demonstrating this remuneration. Additionally, the court examined whether interest should be awarded against the appellant from the date of the last payment by the respondent. The court further considered whether the appellant should be allowed to raise points and objections on appeal that were not litigated at trial.

The Court of Appeal held that the respondent's claim for moneys had and received was maintainable. The court found that the appellant's contention that the respondent's claim was reduced by the appellant's claim for reasonable remuneration was not valid, as the burden of proof rested with the appellant to demonstrate this. The court also ruled that interest should be awarded to the respondent from the date of the last payment by the respondent, as the appellant had not shown that the respondent received value for the money paid. Finally, the court determined that the appellant should not be permitted to raise points and objections on appeal that were not litigated at trial.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal on the standard basis. This decision highlights the importance of warranties in sub-contract agreements and the consequences of breaching them, as well as the principles of restitution and the recovery of money paid under mistake.