Coshott v Lenin

[2006] NSWDC 139

CITATION:	Robert Coshott v Michael Lenin [2006] NSWDC 139
HEARING DATE(S):	01/11/2006 - 02/11/2006
EX TEMPORE JUDGMENT DATE:	11/02/2006
JURISDICTION:	Civil
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	Verdict and Judgment for the defendant; Plaintiff to pay the defendant's costs
CATCHWORDS:	Recovery of unpaid professional fees - Any claim in contract (whether express or implied) statute barred - Admitted that any claim formerly in quasi-contract (quantum meruit) was statute barred - Claims barred at the latest on 15 July 1998 - Proceedings commenced 27 September 2005, over 7 years later - Claim barred on restitution for unjust enrichment - Held: (a) restitution for unjust enrichment is not a new right of action. (b) restitution for unjust enrichment is the new legal reasoning governing the set of remedies previously rationalised as quasi-contract. (c) the plainitff's right of action was still quantum meruit and was statute barred. (d) a change of judicial reasoning in that area of law formerly known as quasi-contract does not defeat the parliamentary intention behind Limitation Act 1969 section 14(1)(a)
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Wasada Pty Ltd v State Rail Authority of New South Wales (No 2) [2003] NSWSC 987 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 David Securities Pty Ltd and Others v Commonwealth Bank of Australia (1992) 175 CLR 353 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516
PARTIES:	Robert Coshott (plaintiff) Michael Lenin (defendant)
FILE NUMBER(S):	4184/05
COUNSEL:	Plaintiff in person Mr J.W. Conomos (for the defendant)

JUDGMENT

1 HIS HONOUR: The plaintiff, Mr Robert Gilbert Coshott, is a former solicitor. The defendant, Mr Michael Petrovic Lenin, is a former client of the plaintiff.

2 The plaintiff acted for the defendant in an action in the Supreme Court of this State known as Lenin v Seneca Insurance Company Ltd. The defendant had an interest in the Great Northern Hotel at Newcastle. On 28 December 1989 there was an earthquake which severely damaged a number of properties in Newcastle. Mr Lenin alleged that his hotel was damaged in the earthquake.

3 Mr Lenin gave instructions to the plaintiff to act for him on 1 January 1990. On 30 June 1991 the plaintiff ceased to act as a solicitor because he did not renew his practising certificate so that he could not from 1 July 1991 practice as a solicitor. Nevertheless in July, August, September, October and November of 1991 the plaintiff did certain work on behalf of the defendant. When the plaintiff ceased to practice as a solicitor he arranged for his file concerning the defendant’s action in the Supreme Court to be transferred to another solicitor, Mr George Vardas, who traded as Gunn Hamilton and Blay.

4 There is a dispute between the plaintiff and Mr Vardas as to when the file was actually transferred to Mr Vardas but nothing presently turns on that. In May 1992 the action of Lenin v Seneca Insurance Company Ltd was settled. The exact terms of settlement are not known to me. There is reference in the evidence to a settlement for $1 million inclusive of costs and of $1.3 million.

5 After the settlement Mr Vardas returned to the plaintiff the plaintiff’s file which enabled the plaintiff to prepare a memorandum of costs and disbursements which was in taxable form. That memorandum is annexure A to Exhibit B. It was delivered by hand to the defendant by the plaintiff on 15 June 1992. It is accepted by the parties that the defendant then had one month in which to object to the bill and require the plaintiff to tax his bill. No such objection was made.

6 It would appear that at some time the defendant lodged a complaint about the plaintiff to the Law Society of New South Wales Professional Standards Department. On 4 January 1993 the plaintiff wrote to the Professional Standards Department of the Law Society of New South Wales a letter concerning the defendant’s complaint. The letter has been mis-dated 4 January 1992. In that letter the plaintiff stated that the matter of Lenin v Seneca Insurance Company Ltd was completed in 1992. In the letter the plaintiff advised the Law Society that the defendant received “in excess of $1,300,000.”

7 There were other matters in which the plaintiff had acted for the defendant. They are not currently relevant except to explain the use of the plural number in certain parts of the letter of 4 January 1993. The letter continues thus:

“I have not been paid in any of the numerous matters, both litigious and non-litigious, in which I have acted for Mr Lenin.

Early last year, when he was requested to pay my costs in the numerous matters in which I had acted, Mr Lenin informed that it was his position that the barristers and I lost the Australian Bank case and therefore it [sic] we should pay the costs. I informed Mr Lenin that I would be delivering itemised bills to him in all matters. I delivered eleven bills in June. Mr Lenin has not sought to tax and I am proceeding to enforce payment.”

8 It is by the current proceedings that the plaintiff seeks to enforce the payment of his costs. These proceedings were commenced by a statement of claim filed on 27 September 2005, over twelve and a half years later.

9 Paragraphs 5, 6 and 7 of the present statement of claim are these:

“5. The costs due to the plaintiff herein had not been paid and still have not been paid.

6. As a result of the above, the defendant herein has been unjustly enriched.

7. The plaintiff claims a sum of $540,000, being the amount by which the defendant has been unjustly enriched.”

10 The statement of claim goes on to provide particulars of costs rendered to the plaintiff in July 1991 of $210,256.50 and then adds a claim for interest in the sum of $330,000.

11 One would have thought that it was either an express or implied term of the agreement between the plaintiff and the defendant that the defendant would pay the plaintiff’s reasonable costs. If that were not an express term of the contract, one would infer an implied term to that effect to give the relationship between the plaintiff and the defendant commercial efficacy. In any event, the law provided as to how the costs payable by the defendant to the plaintiff could be calculated, that is by a taxation of costs between solicitor and client. Even if the relationship of the plaintiff and the defendant were not governed by contract, either express or implied, the plaintiff would have been entitled to claim his costs from the defendant by reason of quantum meruit. However it is accepted that the plaintiff’s claim based on contract is statute barred and the plaintiff also accepts that any claim based on quasi-contract is statute barred. The plaintiff does not claim on the basis of quantum meruit but rather on the basis of “unjust enrichment”.

12 Unjust enrichment is not a cause of action, although in using the words “cause of action” that I just did, I have misused the phrase as it has often been misused in recent authority. The correct description would be “right of action”. “Cause of action” is defined in the fifth edition of Osborne’s Concise Law Dictionary as this:

“The fact or combination of facts which give rise to a right of action.”

13 A “right of action” is to be distinguished from the “form of action” which obtained prior to the introduction of the Judicature Act in England in 1875 and in most of the common law world very quickly thereafter, except in the State of New South Wales where it happened in the early 1970’s.

14 In Wasada Pty Ltd v State Rail Authority of New South Wales (No 2) [2003] NSW SC 987 Campbell J said at [18]:

“The existence of these categories of situation, in which retention of a benefit is recognised by the law as being unjust, is fundamental to the operation of the law concerning unjust enrichment. “ Unjust enrichment ” is not a cause of action but rather:

‘A unifying legal concept which explains why the law recognises, in a variety of distinct categories of case, an obligation on the part of the defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff and which assists in the determination, by the ordinary processes of legal reasoning, of the question whether the law should, in justice, recognise such an obligation in a new or developing category of case.’”

15 His Honour then provided as references for the quotation which he made, the decisions of Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 256-257; David Securities Pty Ltd and Others v Commonwealth Bank of Australia (1992) 175 CLR 353 at 378-379 and Hill v Van Erp (1997) 188 CLR 159 at 239.

16 At [22] of his reasons, Campbell J said that he bore in mind that “unjust enrichment” is not itself a cause of action, but rather an explanatory concept. I assume that by using the words “cause of action” his Honour means a “right of action”.

17 The plaintiff before me maintains in essence that the concept of “unjust enrichment” is a new concept which gives him title to bring proceedings to seek to recover the statute-barred costs. In essence the plaintiff submits that “unjust enrichment” is in fact a right of action.

18 To understand the position one needs to refer to legal history. The third book of Blackstone’s Commentaries on the Laws of England (Oxford, 1768) concerns what the learned commentator called “private wrongs”. The ninth chapter is entitled “Of Injuries to Personal Property”. The first part of the ninth chapter concerns the re-taking of possession of personal property. The second part commences with this statement:

“Hitherto of injuries affecting the rights of things personal, in possession . We are next to consider those which regard things in action only; of such rights as are founded on, and arise from contract ; the nature and several divisions of which were explained in the preceding volume. The violation, or non performance, of these contracts might be extended into as great a variety of wrongs, as the rights which were then considered: but I shall now endeavour to reduce them into a narrow compass, by he making only a twofold division of contracts; viz. contracts express and contracts implied ; and considering the injuries that arise from the violation of each, and their respective remedies.”

19 I leave to one side the learned commentator’s treatment of express contracts.

20 Commencing at page 158 Blackstone says this:

“From these express contracts the transition is easy to those that are only implied by law. Which are such as reason and justice dictate, and which therefore the law presumes that every man has contracted to perform; and, upon this presumption, makes him answerable to such persons, as suffer by his non-performance.”

21 The first set of implied contracts categorised by Blackstone was of contracts between the State and the subject used by him to explain the obligation of the subject to pay taxes, Government imposts and, for example, court fines.

22 Commencing at page 161 the author continues thus:

“A second class, of implied contracts, are such as do not arise from the express determination of any court, or the positive direction of any statute; but from natural reason and the just construction of law. Which class extends to all presumptive undertakings or assumpsits ; which, although never perhaps actually made, yet constantly arise from this general implication and intendment of the courts of judicature, that every man hath engaged to perform what his duty or justice requires. Thus,

1. If I employ a person to transact any business for me, or perform any work, the law implies that I undertook or assumed to pay so much as his labour deserved. And if I neglect to make him amends, he has his remedy for this injury by bringing his action on the case upon this implied assumpsit ; wherein he is at liberty to suggest that I promise to pay him so much as he reasonably deserved, and then to aver that his trouble was really worth such a particular sum, which the defendant has omitted to pay. But this valuation of his trouble is submitted to the determination of a jury; who will assess such a sum in damages as they think he really merited. This is called an assumpsit on a quantum meruit .”

23 The author then goes on to discuss the “assumpsit on a quantum valebat” whose modern title is the claim for monies for goods and services provided.

24 Blackstone then goes on to consider a third category:

“A third species of implied assumpsits is where one has had and received money of another’s, without any valuable consideration given on the receiver’s part: for the law construes this to be money had and received for the use of the owner only; and implies that the person so receiving promised and undertook to account for it to the true proprietor. And, if he unjustly detains it, an action on the case lies against him for the breach of such implied promise and undertaking; and he will be made to repair the owner in damages, equivalent to what he has detained in such violation of his promise. This is a very extensive and beneficial remedy, applicable to almost every case where the defendant has received money which ex aequo et bono he ought to refund. It lies for money paid by mistake, or on a consideration which happens to fail, or through imposition, extortion, or oppression or where undue advantage is taken of the plaintiff’s situation.”

25 Blackstone goes on to consider three other forms of assumpsit which are not relevant here but which remedies are still reflected in the modern law.

26 It is clear that the collection of remedies to which the learned commentator was referring were explained by him as arising from an implied contract. One might wonder where this explanation comes from. It appears to be likely to have been derived from Roman law.

27 The fourth book of the Institutes of Justinian tit XXVII is headed “De Obligationibus Quasi Ex Contractu”. That can be translated as “concerning obligations arising as if out of contract.” In Lee’s translation of the Institutes of Justinian in The Elements of Roman Law (4th edition, 1956), the learned author translated the title of book three, tit XXVII as “of quasi-contractual obligations”. I will not bother to cite the first paragraph of his translation but, if I did so, one could see that the learned author Blackstone has probably done his own translating of Justinian into the first part of his discussion of quasi-contract.

28 Reference should also be made to Holdsworth, A History of English Law Volume 8 (2nd edition, 1937) §3 commencing at p.89 which provides a history of quasi-contract. The learned author points out that the form of action, indebitatus assumpsit was extended to enforce certain legal duties formerly enforceable by an action of debt. The same form of action was then extended to remedy cases “of unjust enrichment”. Commencing at p.96, the learned author said this:

“It is clear from these cases that, though in an indebitatus assumpsit a promise to pay was supposed to have been made, the promise was very much of a fiction. It is clear, therefore that Holt’s objections on this score to allowing the action for breaches of bye-laws and customary duties could hardly be sustained. The action had come to be regarded as the proper remedy for a mass of miscellaneous duties imposed by law. But what was the principle upon which these duties were thus enforced? The form of the action implied that they were enforced because the party liable had agreed to pay. But that was notoriously false. Blackstone, it is true, by the help of the original contract, tried to give some colour to this fiction. A person was liable to be sued in debt on a judgment or a penal statue, or in indebitatus assumpsit on a bye-law, because of “an implied original contract to submit to the rules of the community whereof we are members.” In other cases an agreement was implied “from natural reason and the just construction of the law.” For instance, it is on this ground that we are liable to pay for work done at our request, or to pay over money received to another’s use, or to remunerate a person who has spent his own money for our benefit at our request, or to pay what is due on an account stated, or to show adequate skill in any office or employment. It is clear that Blackstone, in thus endeavouring to give colour to this fiction of agreement, hopelessly mixed up cases where there is a real but an implied contract, with cases where there is no real contract, but merely an obligation implied by law – in other words, a quasi-contract. But the fact that Blackstone could seriously put forward such a theory, both illustrates the somewhat haphazard way in which these various duties has come to be enforced, either by the actions of debt or account, or by successive expansions of various forms of assumpsit, and shows that, owing to this haphazard development, the law has not attained a coherent theory of quasi-contract.

It was easy enough to see that in many of these cases the obligation, being imposed by law, had nothing contractual about it. It was obvious, for instance, that the obligation to make a customary payment, or to pay a penalty for the breach of a bye-law, was simply imposed by law; and the same fact was equally obvious in many of these cases in which the law imposed an obligation to pay, in order to remedy an unjust enrichment. But these cases were numerous and varied, and the principle which underlay them badly needed to be stated. Here Lord Mansfield had his chance. He was not faced by a coherent body of principles like the doctrine of consideration, or the rules as to disseisin, or the rule in Shelly’s Case. He found an incoherent set of rules stated in a number of heterogeneous cases; and if there was any one principle at their back, it was the innate feeling of judges that it was just and equitable that a convenient remedy should be given in these cases. This was a situation with which he was eminently qualified to deal. In the passage on his judgment in Moses v Macferlan, in which he laid down the conditions under which an action would lie for these cases of unjust enrichment, he summed up and thereby gave precision to the principle underlying the earlier cases. The actual decision in the case is erroneous; but the principles there laid down are the starting point of the modern development of what is the largest and most important part of the law of quasi-contract; and their acceptance has done much to liberalise the common law. “This kind of equitable action”, he said, “to recover back money which ought not be in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex aeqo et bono, the defendant ought to refund: it does not lie for money paid by the plaintiff, which is claimed of him as payable in point of honour and honesty, although it could not have been recovered from him in any course of law; as in payment of a debt barred by the statute of Limitations, or contracted during his infancy, or to the extent of principal and legal interest upon an usurious contract, or for money fairly lost at play: because in all these cases the defendant may retain it with a safe conscience, though by positive law, he was barred from recovering. But it lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition (express or implied); or extortion; or oppression; or an undue advantage taken of the plaintiff’s situation, contrary to laws made for the protection of persons under those circumstances. In one word, the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money.”

It was thus in the action of indebitatus assumpsit that the larger part of our modern law of quasi-contract has originated. But as we have seen, there are also a certain number of quasi-contractual obligations which had never come within its sphere. On a judgment only debt could be brought; and there were a certain number of obligations still only remediable by actions on the case. It is not till forms of action are things of the past, that the products of these various parallel developments will be able to be grouped together into a uniform law of quasi-contract. It is not till these procedural changes have taken place that the fiction of a promise, and with it the confusion between implied contracts and contracts implied by law, will be got rid of, and the law of quasi-contract will be able to emerge as a distinct branch of the law.”

29 No longer constrained by the forms of action, the law no longer is constrained to rely on the rationale previously erected to explain this form of relief. A new rationale is now provided – unjust enrichment, the real rationale perceived by Holdsworth.

30 The law of quasi-contract used traditionally to be discussed in books concerning contract law. However the second edition of Carter and Harland Contract Law in Australia (1991) replaces the traditional commentary on quasi-contract with a chapter headed “Restitution”. It is chapter 23 of that work. The introduction to the chapter is worth considering because it explains how the law has come to develop. It commences thus:

“Restitution is an interesting, though difficult topic. Although having a long history, restitution ‘has recently awakened from [a] long slumber’. In Australia today the whole subject must be regarded as still in the process of developing the most fundamental precepts. The structure of this chapter relies heavily on the principle of unjust enrichment, yet that principle has only recently achieved respectability in the common law. It is an indication of the pace of development that the present chapter bears little resemblance to its counterpart in the first edition.

In this work most of the instances of restitution discussed are those which have traditionally been described as quasi-contractual and based on an implied contract between the parties to the action. Thus, where it is held that a defendant must repay money received by the defendant, the traditional approach has been to treat the defendant’s liability as based on a notional or fictional promise analogous to a contractual promise. The promise may be described as a fiction because there is no real or genuine promise to pay. The courts recognised this, but continue, for historical reasons, to treat the promise as an essential element of the recovery. In truth the concept is a legacy of the time when the plaintiff had to plead one of the forms of action, such as indebitatus assumpsit or debt, in order to succeed. Or to put the same point in a less technical way, the assumption that all liability is either contractual or tortious requires the basis for recovery to be in the nature of contract. But as Lord Atkin explained in United Australia Ltd v Barclays Bank Ltd, these ‘fantastic resemblances of contracts invented in order to meet requirements of the law as to the forms of action which have now disappeared should not in these days be allowed to affect actual rights’. Accordingly, in the context of an action to recover money after a total failure of consideration, Lord Wright said in Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd, that the ‘gist of the action is a debt or obligation implied or, more accurately, imposed, by the law in much the same way as the law enforces as a debt the obligation to pay a statutory or customary impost’. To the same effect is a statement by Griffith CJ in R v Brown that the action for money lay ‘whenever the defendant had received money which in justice and in equity belonged to the plaintiff’.

It is not necessary to give an exhaustive account of the principles of restitution in this chapter. The connection between restitution and contract is frequently rather tenuous. For example, the claim may be based simply on the receipt of money paid under a mistake of fact, where there is no suggestion that the money was paid pursuant to a contract or in the belief that a contract existed.”

31 The authors then go on to point out that there are other forms of restitution arising under other parts of the law of contract.

32 Paragraph [2302] of this work is headed “Nature of the Remedy”. It commences thus:

“Goff and Jones describe the law of restitution as that ‘relating to all claims, quasi contractual or otherwise, which are founded upon the principle of unjust enrichment’. The principle of unjust enrichment, they explain, assumes ‘three things: first that the defendant has been enriched by the receipt of a benefit; second, that he has been so enriched at the plaintiff’s expense; and third, that it would be unjust to allow him to retain that benefit’.

The major difference between the discussion in this chapter and that contained in earlier chapters where restitutionary issues arose is straightforward. The focus in the early discussion was the impact of substantive contract principles. Discussion in this chapter looks at restitutionary claims from the perspective of unjust enrichment and by reference to the substantive elements of that concept.”

33 The work then goes on to discuss both quasi-contract and unjust enrichment as if they were separate things. However in the discussion of “unjust enrichment” there is a discussion of the decision of the High Court in Pavey & Matthews Pty Ltd v Paul. It is clear from the author’s discussion of that decision, just as is clear from reading the essence of the case itself, that the reasoning of the High Court enabled the builders in that case to recover monies that they had expended on behalf of the defendant by reason of what would otherwise be known as a claim on a quantum meruit.

34 The new learning or, one should say, new understanding of the law advocated in Pavey & Matthews Pty Ltd v Paul in the judgments of Mason, Wilson and Deane JJ is that the rationale of what has traditionally been called quasi-contract does not any longer depend upon the existence of an implied contract, but on a claim to restitution based on unjust enrichment.

35 The next major decision of the High Court on this area is David Securities Pty Ltd and Others v Commonwealth Bank of Australia (1992) 175 CLR 353. Up until that time it was thought that monies paid under a mistake of law were not recoverable. This authority decided otherwise.

36 In the joint judgment of Mason CJ, Deane, Toohey, Gaudron and McHugh JJ commencing at p.378 the following appears:

“However, the respondent argues that a plaintiff should be required to prove that retention of the monies by the recipient would be unjust in all the circumstances before recovery should be granted; if the circumstances of the case showed that it would not be unjust for the recipient to retain the money, the fact that the plaintiff could point to a causative mistake, whether of fact or law, would not assist the plaintiff. According to the respondent’s submissions, monies paid under a mistake of law could only be recoverable insofar as the recipient has been unjustly enriched at the expense of the payer, such that it would be unconscionable for the recipient not to give restitution to the payer. In support of this approach, the respondent relies, inter alia, on the recent decisions of this court in Westpac Banking Corporation and Pavey & Matthews.

Although this alternative approach is not greatly different from that stated above, it does have important consequences in relation to the elements of the action which the plaintiff must plead and prove. It also appears to proceed from the view that in Australian law unjust enrichment is a definitive legal principle according to its own terms and not just a concept.

The two decisions of this court just mentioned reject that approach. In Pavey & Matthews, Deane J stated:

‘To identify the basis of such actions as restitution and not genuine agreement is not to assert a judicial discretion to do whatever idiosyncratic notions of what is fair and just might dictate … That is not to deny the importance of a concept of unjust enrichment in the law of this country. It constitutes a unifying legal concept which explains why the law recognises, in a variety of distinct categories of case, an obligation on the part of the defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff and which assists in the determination, by the ordinary processes of legal reasoning, of the question whether the law should, in justice, recognise such an obligation in a new and developing category of case.’

Accordingly, it is not legitimate to determine whether an enrichment is unjust by reference to some subjective evaluation of what is fair or unconscionable. Instead, recovery depends upon the existence of a qualifying or vitiating factor such as mistake, duress or illegality. As this court stated in Westpac Banking Corporation:

‘In other words receipt of a payment which has been made under a fundamental mistake is one of the categories of case in which the facts give rise to a prima facie obligation to make restitution, in the sense of compensation for the benefit of unjust enrichment, to the person who has sustained the countervailing detriment.’”

37 The most recent decision in the High Court to which my attention has been drawn is Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516. Whilst there is discussion of unjust enrichment in that judgment, it is clear that the right of action was based on the recovery of monies for a total failure of consideration. The interesting aspect of that case is that there was held to be a total failure of consideration where a distinct or discreet part of the payment could be differentiated from a part of the payment which was properly payable. The case concerned the payment of a New South Wales Government licence fee on the sale of tobacco which was subsequently held to be unconstitutional because it was in fact a duty of excise which could only be levied by the Commonwealth of Australia. Although the price of the tobacco was not recovered, the licence fee paid was.

38 There is no authority in the High Court of Australia for there being a right of action for unjust enrichment simpliciter. I have been taken to a number of other decisions. The first is Trimis v Mina [1999] NSWCA 140. The plaintiff’s claim in that matter was based on contract. There was an alternative plea of quantum meruit. It was held that the owners of the land upon which the building was being erected, repudiated the contract and that the repudiation of the contract was accepted by the builder on 15 August 1994. There had been a number of variations to the building contract which had not been reduced to writing. Because of the absence of writing, those claims were not allowable as variations under the contract. An acting judge of this court found for the builder on those variations on the basis of “restitutionary principles in accordance with Pavey & Matthews”.

39 Commencing at [54] Mason P said:

“The starting point is a fundamental one in relation to restitutionary claims, especially claims for work done or goods supplied. No action can be brought for restitution while an inconsistent contractual promise subsists between the parties in relation to the subject matter of the claim. This is not a remnant of the now discarded implied contract theory of restitution. The proposition is not based on the inability to imply a contract, but on the fact that the benefit provided by the plaintiff to the defendant was rendered in the performance of a valid legal duty. Restitution respects the sanctity of the transaction, and the subsisting contractual regime chosen by the parties as the framework for settling disputes. This ensures that the law does not countenance two conflicting sets of legal obligations subsisting concurrently. As Deane J explained in the context of the quantum meruit claim in Pavey & Matthews (at 256), if there is a valid and enforceable agreement governing the claimant’s right to payment, there is ‘neither occasion nor legal justification for the law to superimpose or impute an obligation or promise to pay a reasonable remuneration’.”

40 His Honour then provides a number of authorities for that proposition. His Honour went on in [55] of his reasons to point out that unlike the situation in Pavey & Matthews the building contract in that case was in writing and was enforceable and the builder was entitled to sue under it for damages.

41 In the present case there was a contract, which proved either expressly or by implication, for the payment of the plaintiff’s fees. The fact that that action is now statute barred does not itself permit another action to arise. The two would be inconsistent. Furthermore, if there was no contract for the payment by the defendant of the plaintiff’s fees, then the appropriate remedy was an action either on a quantum meruit or a quantum valebat. They can be now categorised as claims for restitution but, in my view, for reasons I shall come to, they are still caught by section 14 of the Limitation Act 1969.

42 I have also been referred to Heckenberg v Delaforce [2000] NSWCA 137. In that case the plaintiff succeeded for a total failure of consideration. That is a traditional claim available in what was formerly called the quasi-contract and may now be called restitution. The case itself does not suggest that there is a new and distinct right of action called unjust enrichment.

43 I have also been referred to Torpey Vander Have Pty Ltd v Mass Constructions Pty Ltd [2002] NSWCA 263. It is clear from the judgment of Spigelman CJ that the plaintiff’s claim was based on contract and alternatively on the basis of quantum meruit. There was also an allegation of an implied licence which, as I understand it, is itself a contractual remedy. The Chief Justice dealt with the quantum meruit claim under the heading “Unjust Enrichment” and disagreed with the reasoning on this issue with Young CJ in Eq. It is to be noted that Foster AJA agreed with the Chief Justice so that what fell from Young CJ in Eq. on the issue is a dissenting judgment.

44 At paragraph 34 the Chief Justice said this:

“In the absence of proof that it acquired a licence to use the plans under the mortgage, it appears that the respondent received a benefit for which he did not pay. However, benefit is not the only element in such a claim. The benefit must be at the appellant’s expense and there must be an element of injustice.”

45 His Honour then referred to Mason and Carter Restitution Law in Australia (1995) which is also a text referred to by Justice Campbell in Wasada Pty Ltd v SRA to which I have already referred. Suffice to say that there is nothing in Torpey Vander Have Pty Ltd v Mass Constructions Pty Ltd that suggests that there is some new right of action called unjust enrichment.

46 The only decision to which I have been taken where it seems to be suggested that there was such a right of action is the decision of my colleague, her Honour Judge Truss in Coshott v Sakic (unreported, 27 October 2006, matter number 4185 of 2005). With unfeigned respect to my colleague, I believe that her Honour fell into error. At paragraph 25 her Honour stated that the plaintiff accepted that “unjust enrichment” was not a cause of action in itself but submitted that it was “a form of common law relief”. Her Honour then quoted the defendant’s contention to the contrary and appears to have accepted that it did give some right of action. However at [33] her Honour refers to the authors of Restitution Law in Australia and noted that the authors state that the role of constructive trust in restitutionary remedy for unjust enrichment “is clear and well recognised”. Her Honour however went on to hold that the cause of action for equitable relief was statute barred under section 48 of the Limitation Act 1969.

47 With great respect to the learned authors, it appears from my reading of the authorities that the concept of unjust enrichment arises at law rather than in equity and it is inappropriate to bring in concepts of resulting trusts.

48 It follows from my review of the authorities and consideration of legal history that firstly, what the plaintiff is actually claiming is a form of relief which has traditionally been known as quantum meruit. Such was the relief claimed and obtained in Pavey & Matthews. The plaintiff accepts that that cause of action is statute barred. The principle of unjust enrichment now explains these ancient forms of relief. It explains them on a new basis, not on the antique doctrine of implied agreement or quasi-contract as stated by Blackstone and probably based on Roman law but on a new overriding element. However the authorities make it clear that it does not create a new cause of action. The plaintiff still has to establish some accepted right of action. It is not open to this court to invent one. In any event what is actually sought is, as I have said, a quantum meruit.

49 The cause of action alleged in the statement of claim as contended for orally by the plaintiff in my view does not exist. The nearest that could be given would be a quantum meruit and that claim is clearly statute barred.

50 This raises of course another issue. The Limitation Act 1969 received the royal assent on 9 April 1969 and commenced on 1 January 1971. Section 14 of that Act has never been amended. Section 14(1) commences thus:

“An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims:

(a) A cause of action founded on contract (including quasi-contract) not being a cause of action founded on a deed.”

51 At the time of that enactment the concept of unjust enrichment was not being debated by the courts and was not being used by the courts to explain the remedies that were formerly known as those available in quasi contract. If the judiciary changes the reasoning behind a legal remedy, it does not change the remedy itself. Clearly section 14(1)(a) provided a six year limitation period for any claim quantum meruit or any claim quantum valebat or any similar action that the law provided. Even if the legal understanding of the rights of action has changed they are still within what Parliament intended to affect when it enacted section 14(1)(a). Thus even if “unjust enrichment” does give a right of action, such right of action was in the event statute barred within six years of, at the latest, 15 July 1992, that is 15 July 1998.

52 It has been submitted by the plaintiff that for example this new concept of “unjust enrichment” is caught by no provision of the Limitation Act and as I put, arguendo, the action could be maintained five hundred years hence by the heirs and successors of the plaintiff and that brought no demur from the plaintiff. I am afraid that the novelty of that concept explains the novelty and indeed absurdity of the position argued for by the plaintiff concerning this “new remedy” “unjust enrichment”. It is now the reasoning behind what was formerly called the quasi-contract. It does not, as the authorities all suggest, create a new right of action.

53 Accordingly if I may succinctly state what my reasoning process is. Firstly, that the cause of action alleged by the plaintiff does not exist. Secondly, if it did exist it is only still the remedy that was formerly called quantum meruit. Thirdly, that even if it did exist it would still be caught by section 14(1)(a) of the Limitation Act 1969.

54 For those reasons I give verdict and judgment for the defendant. I order the plaintiff to pay the defendant’s costs.

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