Cubelic & Sons P/L v Civil Works Group (SA) P/L, Adelaide Property Development P/L v Civil Works & Simac v Civil Works - [2008] SADC 41

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
CUBELIC & SONS P/L v CIVIL WORKS GROUP (SA) P/L, ADELAIDE PROPERTY DEVELOPMENT P/L v CIVIL WORKS & SIMAC v CIVIL WORKS
[2008] SADC 41
Judgment of His Honour Judge Robertson
18 April 2008
PROCEDURE - JUDGMENTS AND ORDERS
Appeal against orders dismissing Applications to strike out registered Worker's Liens - three actions - building work undertaken on land pursuant to oral contracts - payment clause unenforceable because builder unlicensed - application of Section 6 of Building Work Contractors Act - claim for fair and reasonable compensation in quantum meruit - whether a Worker's Lien available where claim for payment relies on quantum meruit - meaning of the definition of contract price in Worker's Liens Act.
Held: No Worker's Liens available where claim is in quantum meruit - order pursuant to Section 3 of Worker's Liens Act cancelling the liens.
Building Work Contractors Act 1995 s6; District Court Civil Rules 2006 R6 R292; Worker's Liens Act 1893 s5, s6, s32, referred to.
Nunkuwarrin Yunti v A L Seeley Constructions Pty Ltd (1998) 72 SASR 21; Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd (1991) 160 LSJS 270; Pavey & Matthews Pty Ltd v Paul (1986-87) 162 CLR 221; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 81 ALJR 1107; Coshott v Lenin (2007) NSWCA 153; Aberdine Pty Ltd v Vineyard Estate Management Pty Ltd (2001) SASC 442, applied.
Restitution Law In Australia (Mason & Carter); The Law Of Restitution (2nd Ed) (Goff & Jones); Keating on Building Contracts (7th Ed), considered.

CUBELIC & SONS P/L v CIVIL WORKS GROUP (SA) P/L, ADELAIDE PROPERTY DEVELOPMENT P/L v CIVIL WORKS & SIMAC v CIVIL WORKS
[2008] SADC 41
Judge Robertson
Civil
The Appeals

These Appeals relate to Orders by a Master, each dated 22 November 2007, dismissing Applications in three separate proceedings, each seeking an Order that a Worker’s Lien registered on a Certificate of Title with respect to land owned by each respective Appellant (Defendant), be struck out. The Applications were brought by the respective Appellants in each of the proceedings, pursuant to Section 32 of the Worker’s Liens Act 1893 (“Liens Act”), which provides:
Any person alleging that he is prejudicially affected by a claim, lien, or charge, or by registration under this Act, may at any time apply to the court to have such claim or registration cancelled or the effect thereof modified, and such order may be made as may be deemed just.
The Nature of the Proceedings
The first set of proceedings is contained in Action Number 1521 of 2007, in which Civil Works Group (SA) Pty Ltd (“Civil Works”), as Plaintiff, brings proceedings against the Defendant, Cubelic & Sons Pty Ltd (“Cubelic & Sons”). The second set of proceedings is contained in Action Number 1522 of 2007, in which the Plaintiff, Civil Works, brings proceedings against the Defendant, Adelaide Property Development Pty Ltd (“Adelaide Property”). The final set of proceedings is contained in Action Number 1523 of 2007, in which Civil Works, as Plaintiff, brings proceedings against the Defendant, Ante Nedeljko Simac, (“Mr Simac”).
I now turn to consider each of these proceedings.
(i) Civil Works v Cubelic & Sons – Action Number 1521 of 2007
Civil Works’ claim is to enforce a Worker’s Lien, under the Liens Act, registered on a Certificate of Title relevant to land owned by Cubelic & Sons at Ridleyton. The amount claimed under the Lien is for the sum of $241,543.36, for building works alleged to have been undertaken on the land by Civil Works and which remains unpaid. Civil Works also seeks Judgment for that amount.
It is alleged in the Statement of Claim that, in September 2006, Civil Works entered into an oral agreement with Cubelic & Sons to carry out renovations to a workshop situated on the land. It is pleaded that a term of the oral agreement was that Cubelic & Sons would pay the expenses of most of the contractors and suppliers in relation to the renovation works undertaken. Civil Works claims that in breach of the contract, Cubelic & Sons has failed to pay the amount of $241,543.36, inclusive of costs. Civil Works’ claim is pleaded in the alternative. In the first instance, Civil Works brings its claim for breach of contract. Alternatively, Civil Works claims in quantum meruit the sum of $219,584.87, exclusive of GST, which it alleges is fair value for the work undertaken by it, on Cubelic & Sons’ land.
On 21 August 2007, Civil Works registered a Worker’s Lien, under the Liens Act, claiming a Lien with respect to the amount alleged to be underpaid. It seeks to enforce that Lien in these proceedings.
In its Defence, Cubelic & Sons, inter alia, denies the oral agreement to undertake the renovation works pleaded by Civil Works. Furthermore, and importantly with regard to this Appeal, Cubelic & Sons pleads that Civil Works did not hold a relevant license for the building work undertaken on the land, required under the provisions of the Building Work Contractors Act 1995 (“Building Work Act”). Cubelic & Sons alleges that Civil Works is not entitled to a lien under the Liens Act.
(ii) Civil Works v Adelaide Property – Action Number 1522 of 2007
This Action is similar to the first Action, in that it is a claim by Civil Works for the enforcement of a Lien, in which Civil Works alleges that it undertook building construction work for Adelaide Property on land owned by Adelaide Property and for which it has not been paid. It is alleged that in or about November 2006, Civil Works orally agreed with Adelaide Property to carry out certain building work and administration work relevant to the construction of four two-storey duplex houses at Brighton, on land owned by Adelaide Property. The Statement of Claim alleges that the contract price for the building works to be undertaken by Civil Works was $1,050,000. The Statement of Claim also alleges that building and administration works were undertaken by Civil Works, in accordance with the oral agreement, during the period between November 2006 and July 2007. It is alleged that some payments were received from Adelaide Property, but Adelaide Property has failed to pay the outstanding amount of $484,350.79.
Civil Works alleges that Adelaide Property is in breach of contract in failing to pay the sum outstanding. Alternatively, Civil Works claims in quantum meruit for the sum of $384,350.79, alleging it to be the fair value for the works which have been completed by Civil Works for the benefit of Adelaide Property, which accepted those works.
On 21 August 2007, Civil Works registered a Lien under the Liens Act on the Certificate of Title relevant to the land owned by Adelaide Property, claiming the sum of $484,350.79. It seeks to enforce that Lien in these proceedings.
In its Defence, Adelaide Property denies that there was any agreement with Civil Works in relation to the construction of the townhouses on Adelaide Property’s land. Adelaide Property further claims that at the time of the alleged construction works, Civil Works did not hold a relevant licence, with respect to those works, in accordance with the provisions of the Building Work Act. Adelaide Property claims that Civil Works is not entitled to a lien under the Liens Act.
(iii) Civil Works v Mr Simac – Action Number 1523 of 2007
In this Action, Civil Works alleges that it entered into an oral agreement with Mr Simac to carry out building works on property owned by Mr Simac, at Henley Beach. It is alleged that it was a term of the agreement that Mr Simac would pay Civil Works for all expenses it incurred in undertaking the building works and that, upon completion, Civil Works was to be paid a fair and reasonable amount for its contribution to the building works. It is alleged in the Statement of Claim that the building works, the subject of the oral agreement, were undertaken by Civil Works between December 2006 and May/June 2007, at Civil Works’ expense. The Statement of Claim further alleges that Mr Simac made an initial payment for expenses in carrying out the works, but has failed to pay the sum of $43,498 due in accordance with the terms of the contract.
Civil Works registered a Lien, under the Liens Act, on the Certificate of Title relevant to the land at Henley Beach, on 21 August 2007. It seeks to enforce that Lien in these proceedings.
Civil Works’ claim for the monies is pleaded in the alternative, namely in breach of contract or quantum meruit, in which latter claim Civil Works claims the fair value for the benefit of the works received by Mr Simac and accepted by him.
Mr Simac, in his Defence, denies that there was any agreement with Civil Works in relation to the building works alleged to have been undertaken by Civil Works. He also pleads that Civil Works did not hold a relevant licence with respect to the building works undertaken by it under the Building Work Act. Mr Simac alleges that Civil Works is not entitled to a Lien under the Liens Act.
I should mention that in this Defence, and the Defences in the other two Actions, Civil Works’ claim in quantum meruit has not been specifically addressed. The claim in quantum meruit in each case has arisen as a result of Civil Works filing an amended Statement of Claim in each action. There does not appear to have been any amended Defence filed in each action, at the present time.
Nature of the Appeal
As I mentioned earlier, the Application of the Appellant(Defendant) in each Action was for an order that the Worker’s Lien registered on the relevant Certificate of Title be struck out. It is submitted that as Civil Works did not hold a relevant licence under the Building Work Act, it could not recover the alleged contract price in each case. This was not in dispute. Civil Works relies upon its claim in quantum meruit. The issue in each Application is whether a contractor, who is seeking to recover fair and reasonable payment for work done in a claim in quantum meruit, is entitled to a lien under the Liens Act with respect to the amount claimed.
Background to the Proceedings
In relation to the proceedings in the first two Action Numbers, it appears that the background is that there has been a falling out between business associates who were involved in both developments. It would seem from the Pleadings and Affidavits filed, that a Mr Andrew Ciccarello is the Managing Director of Civil Works. His investment company is a shareholder. At all relevant times, Steve Cubelic, along with Tony Cubelic, were Directors of Cubelic & Sons. Cubelic & Sons is also a shareholder of Civil Works. Both Steve Cubelic and Tony Cubelic are shareholders in Cubelic & Sons.
Andrew Ciccarello has been, at all relevant times, a Director of Adelaide Property, as has Steve Cubelic. Mr Tony Cubelic has also been, at all relevant times, a Director of Adelaide Property. Each of these persons held shares in Adelaide Property through their respective investment companies. Furthermore, each held Units in the Adelaide Property Unit Trust.
In an Affidavit sworn on 15 November 2007, in the Action brought by Civil Works against Mr Simac, Andrew Ciccarello states that Mr Simac is the brother-in-law of Steve Cubelic and Tony Cubelic. He states that after certain demolition and excavation works were undertaken by Civil Works on the property at Henley Beach, it was planned that Tony Cubelic and Mr Simac were to proceed to construct a house thereon.
The Building Work Contractors Act
It is common ground that at all relevant times, in each action, Civil Works did not have a licence, under the Building Work Act, which allowed Civil Works to undertake the building work for which it claims money in each of the proceedings. Mr Ciccarello was a registered supervisor for commercial/industrial and residential building work, registered under the Building Work Act. However, Civil Works did not hold any licence under that Act.
Section 6 of the Building Work Act disentitles a person or company from receiving any fee or compensation in relation to building work, if the building work contractor is not licensed. The relevant terms of Section 6 of the Building Work Act provides:
6 (1) A person must not –
(a)carry on business as a building work contractor except as authorised by a licence under this Part; or
(b)advertise or otherwise hold himself or herself out as being entitled to carry on business as a building work contractor unless authorised to carry on business as such a contractor by a licence under this Part.
(2) A person required by this Act to be licensed as a building work contractor is not entitled to any fee, other consideration or compensation under or in relation to a contract with another on whose behalf the person performed work as a building work contractor … .
In Nunkuwarrin Yunti v A L Seeley Constructions Pty Ltd[1], the Full Court held, in relation to a similar provision to Section 6 of the Building Work Act, that whilst the right of an unlicensed builder to receive payment under a contract for work done has been removed the builder is entitled, in a claim in restitution, to be paid reasonable remuneration for building work completed. It was held that a claim in quantum meruit is available to a builder in circumstances where a builder cannot enforce a contractual right to payment for building work done, as a result of a similar legislative provision to Section 6. In Nunkuwarrin, the Full Court followed the reasoning of the majority Judges in the High Court decision of Pavey & Matthews Pty Ltd v Paul.[2]
[1] (1998) 72 SASR 21
[2] (1986-1987) 162 CLR 221
Effect of Section 6 of the Building Work Act
Mr O’Sullivan QC conceded that the application of Section 6 of the Building Work Act has the effect of preventing Civil Works from enforcing the contractual obligation on each landowner (Appellant/Defendant) to make payment contained in each of the contracts. However, he submitted that Section 6 does not have the effect of making each contract void ab initio. The concession is properly made. I also agree that each contract is not void ab initio. Indeed, the Section does not make each contract unenforceable. The extent of the application of Section 6 is to make the contractual term obliging the respective landowners (Appellants/Defendants) to pay Civil Works for the work done, unenforceable. There has not been a termination of any of the contracts by any party. Accordingly, the other terms of each contract remain in force. Civil Works relies upon its claim in quantum meruit to recover a fair and reasonable payment for the work done and to enforce each of the Liens it has registered on the respective Certificates of Title.
Worker’s Liens Act 1893
There are a number of provisions of the Liens Act which need to be identified for the purpose of considering the issue raised between the parties. Section 5 of the Liens Act sets out the circumstances in which a contractor is entitled to a Lien. Section 6 of the Liens Act sets out the extent of any Lien to which a contractor is entitled under Section 5.
Section 5 provides:
5A contractor or sub-contractor shall have a lien for the contract price, so far as accrued due, on the estate or interest in land of any owner or occupier in each of the following cases:
(a) Where the work is done, with the assent, express or implied, of the owner or occupier to the land or to any fixture thereon:
(b) Where the materials are, with the assent, express or implied, of the owner or occupier, used or intended to be used in or about work done, or intended to be done, to the land or to any fixture thereon.
The relevant portion of Section 6 of the Act provides:
6.Liens … under section 5 shall not … extend beyond that portion of the contract price payable by the owner or occupier under the contract for the purposes of which the work or materials are done, furnished, or manufactured and unpaid at the time when the owner or occupier shall receive notice of the lien or of its registration, whichever shall first happen, nor extend at all to cases where there is no such contract binding the owner or occupier to pay a contract price.
To understand each of these Sections, it is necessary to refer to the meaning of the words “contract”, “contract price” and “contractor”, contained in Section 2 of the Liens Act:
contract means any agreement, whether written, oral, or implied, to do work or to procure work to be done, or to furnish materials in connection with work, or to pay for work, or for materials furnished or to be furnished in connection with work;
contract price means the money payable to any contractor or sub-contractor for any work, or materials furnished or to be furnished in connection with work, under any contract, and whether such price has been fixed by express agreement or not;
contractor means a person (not being a sub-contractor) contracting with or employed by another person to do work, or to procure work to be done, or to furnish materials in connection with work.
The relationship between Section 5 and Section 6 was considered by the Full Court in Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd.[3] It was observed that under the terms of Section 5 a contractor’s lien comes into existence only when the contract price, or part thereof, has accrued due under the terms of that Section.[4] Furthermore, the Court identified that the effect of Section 6 of the Act is to limit the extent of a lien, which has arisen under Section 5, to the portion of the contract price payable and which is unpaid at the time of the notice of registration of the lien.[5]
[3] (1991) 160 LSJS 270
[4] At p.272
[5] At p.273
Assumptions Upon Which the Appeal Proceeded
I should mention at this point, that Counsel for each of the Appellants accepted that the Appeal could proceed upon the following assumptions of fact:
·Civil Works is a contractor within the meaning of the Liens Act;
·Civil Works carried out building work on the land owned respectively by each Appellant in each Action pursuant to an oral contractual arrangement made between them;
·The work was done with the assent of each of the Appellants.
Development of Quantum Meruit
In considering the issues raised in these Appeals, it is necessary to touch upon the development of the cause of action known as quantum meruit and where it presently stands in the law.
In Pavey & Matthews Pty Ltd v Paul[6], Deane J referred to the old common indebitatus count and identified two distinct categories for its utilisation. The first being to recover a debt arising from a genuine contract and the second to recover a debt owing, where the law imposed or imputed a promise to make compensation for a benefit accepted. In the latter case, the claim was not based upon a genuine agreement but in circumstances where there was no genuine agreement or where the agreement had become void, frustrated or unenforceable. As his Honour pointed out in the second category, namely the absence of an agreement or where an agreement is void, frustrated or unenforceable in circumstances where work had been performed, the law implied or imputed an obligation to pay fair and reasonable compensation. Such a claim was recognised as part of the law of quasi-contract.
[6] (1986-87) 162 CLR 221
That was the law in Australia prior to the decision in Pavey & Matthews. However, the underlying concept of such claims changed as a result of that decision. Deane J indicated that a claim of that nature should be recognised as arising as a result of an imposition by the law upon the party who obtained the benefit of work done, to make restitution by paying a fair and reasonable amount and not through the device imposed by a court implying a contract or an obligation to pay a fair and reasonable amount.

These points are made by Deane J in the following remarks:[7]
It sufficies to say that, even accepting that traditional approach, it is clear that the old common indebitatus count could be utilised to accommodate what should be seen as two distinct categories of claim: one to recover a debt arising under a genuine contract, whether express or implied; the other to recover a debt owing in circumstances where the law itself imposed or imputed an obligation or promise to make compensation for a benefit accepted. In the first category of case, the action was brought upon the genuine agreement regardless of whether it took the form of a special or a common count. It follows from what has been said above that the cases in which a claimant has been held entitled to recover in respect of an executed consideration under an agreement upon which the Statute of Frauds precluded the bringing of an action should be seen as falling within the second and not the first category. In that second category of case, the tendency of common lawyers to speak in terms of implied contract rather than in terms of an obligation imposed by law should be recognized as but a reflection of the influence of discarded fictions, buried forms of action and the conventional conviction that, if a common law claim could not properly be framed in tort, it must necessarily be dressed in the language of contract. That tendency should not be allowed to conceal the fact that, in that category of case, the action was not based upon a genuine agreement at all. Indeed, if there was a valid and enforceable agreement governing the claimant’s right to compensation, there would be neither occasion nor legal justification for the law to superimpose or impute an obligation or promise to pay a reasonable remuneration. The quasi contractual obligation to pay fair and just compensation for a benefit which has been accepted will only arise in a case where there is no applicable genuine agreement or where such an agreement is frustrated, avoided or unenforceable. In such a case, it is the very fact that there is no genuine agreement or that the genuine agreement is frustrated, avoided or unenforceable that provides the occasion for (and part of the circumstances giving rise to) the imposition by the law of the obligation to make restitution.
Emphasis added.
[7] At pp.255-256; see also Restitution Law In Australia (Mason & Carter) para [912]
His Honour had earlier cited with approval the observations in the text The Law Of Restitution (2^nd Ed) (Goff & Jones) and said:[8]
… that the basis of the obligation to make payment for an executed consideration given and received under an unenforceable contract should now be accepted as lying in restitution or unjust enrichment.
[8] Pavey & Matthews Pty Ltd v Paul at p.255
Deane J went on to remark that unifying legal concept of claims of this nature, and other categories of claim (in the law of Restitution), is that of unjust enrichment. His Honour said:[9]
It constitutes a unifying legal concept which explains why the law recognizes, in a variety of distinct categories of case, an obligation on the part of a 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, recognize such an obligation in a new or developing category of case. … In a category of case where the law recognizes an obligation to pay a reasonable remuneration or compensation for a benefit actually or constructively accepted, the general concept of restitution or unjust enrichment is, as is pointed out subsequently in this judgment, also relevant, in a more direct sense, to the identification of the proper basis upon which the quantum of remuneration or compensation should be ascertained in that particular category of case.
[9] At pp 256-257
Deane J also set out the basis upon which the amount recoverable is to be determined in an action in Restitution. He said:[10]
The tendency in some past cases to see the rationale of the right to recover remuneration for a benefit provided and accepted under an unenforceable contract as contract or promise rather than restitution has tended to distract attention from the importance of identifying the basis upon which the quantum of the amount recoverable should be ascertained. What the concept of monetary restitution involves is the payment of an amount which constitutes, in all the relevant circumstances, fair and just compensation for the benefit or “enrichment” actually or constructively accepted. Ordinarily, that will correspond to the fair value of the benefit provided (e.g. remuneration calculated at a reasonable rate for work actually done or the fair market value of materials supplied).
[10] At p.263
The sea change from a claim in quasi-contract relying on the concept of an implied agreement or imputed obligation made by the courts to a claim in Restitution, relying on the concept of unjust enrichment, was succinctly summarised by Mason and Wilson JJ in Pavey & Matthews:[11]
Deane J., whose reasons for judgment we have had the advantage of reading, has concluded that an action on a quantum meruit, such as that brought by the appellant, rests, not on implied contract, but on a claim to restitution or one based on unjust enrichment, arising from the respondent’s acceptance of the benefits accruing to the respondent from the appellant’s performance of the unenforceable oral contract.
[11] At p.227
The claim for fair and reasonable payment for work done in the absence of a contract, or an enforceable contract, was known in the law of quasi-contract as a claim for quantum meruit.Although the basis for a claim for fair and reasonable payment for work done in the absence of a contract or an enforceable contract is now in Restitution, lawyers still refer to such a claim as one of quantum meruit.
Before leaving this topic, there are two other factors which need to be identified. First, that the concept of unjust enrichment is not a separate legal principle. This is made clear by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd[12]:
[150]First, whether enrichment is unjust is not determined by reference to a subjective evaluation of what is unfair or unconscionable: recovery rather depends on the existence of a qualifying or vitiating factor falling into some particular category. …
[151]Unjust enrichment is not a “definitive legal principle according to its own terms”. … The areas in which the concept of unjust enrichment applies are specific and usually long-established.
[12] (2007) 81 ALJR 1107 at 1143 [150]; [151]
As Deane J pointed out in Pavey & Matthews[13], the concept of unjust enrichment is a unifying legal one, which explains why the law recognises distinct categories of cases in the law of Restitution.
[13] At p.263
Secondly, a claim for relief in Restitution cannot be made where there is a claim in contract available. Mason P made this point in the New South Wales Court of Appeal decision of Coshott v Lenin[14]:
A restitutionary cause of action cannot sit on top of an effective and continuing contractual arrangement where that would subvert or undermine the contractual allocation of risk. In and around contract restitution operates in a gap-filling role.
[14] (2007) NSWCA 153 [10]
Quantum Meruit and the Worker’s Liens Act
From the outset, it is necessary to make the point that a claim in quantum meruit is a claim relying upon the law of Restitution. As expressed earlier, in the absence of an enforceable contractual obligation to make payment, a contractor is entitled to payment of a fair and reasonable sum for work done where the other party has received a benefit and it would be unjust for that party to retain the benefit without compensating the contractor. In such circumstances, the party obtaining the benefit is required to make restitution. I mentioned earlier, the relief is premised on the concept of unjust enrichment.
A claim in quantum meruit does not arise out of contract. If there is a contractual right to compensation, then the contractor must rely upon that right. A restitutionary cause of action is not available where there is a cause of action in contract. Further, the old contrivance of a Court implying a contract or imputing an obligation to pay under a claim in quasi-contract no longer has any application.
Mr O’Sullivan QC, submitted that a claim in quantum meruit comes within the definition of contract price in Section 2 of the Liens Act. The key to the resolution of the issue between the parties is the construction to be placed on the words defining contract price in Section 2 of the Liens Act. I referred to the definition contained in Section 2, earlier. It is appropriate to set out the definition of contract price again:
contract price means the money payable to any contractor or sub-contractor for any work, or materials furnished or to be furnished in connection with work, under any contract, and whether such price has been fixed by express agreement or not.
It was Mr O’Sullivan QC’s submission that the words in the definition under any contract do not qualify the earlier words money payable to any contractor; he argued that they only qualify the words in connection with work. He submitted that if those words under any contract, did qualify the words money payable to any contractor, then, the final words in the definition, and whether such price has been fixed by express agreement or not, would have no role to play. Mr O’Sullivan QC submitted that by the latter phrase in the definition, Parliament is distinguishing between a contract which expressly fixes a price in money for the work and a contract where there is no fixed price expressed. I understood Mr O’Sullivan QC’s submission to be that in law where there is no fixed price specified in a contract, then the relief available to a contractor is in quantum meruit. He went on to submit that the words or not are present for the express purpose of bringing a claim in quantum meruit within the definition of contract price.
Having reached that point, Mr O’Sullivan QC submitted that the position in each case here is that there is a contract on foot under which Civil Works performed work, but due to the application of Section 6 of the Building Work Act, there is no price … fixed by express agreement …. Accordingly, he submitted, the words or not come into play to bring Civil Work’s claim in quantum meruit within the definition of contract price in Section 2.
Whilst it was not made entirely clear, as I said, I understood Mr O’Sullivan QC’s submission to be that where a contract does not expressly identify a fixed price in terms of money, then the claim for compensation by a contractor is in quantum meruit. I understood his submission regarding the construction of contract price in Section 2 to be founded on that premise.
Mr O’Sullivan QC, in support of his submission, relied upon the following passage in the text Keating On Building Contracts (7^th Ed):[15]
A claim on a quantum meruit cannot arise if there is an existing contract between the parties to pay an agreed sum. But there may be a quantum meruit claim where there is:
(a) An express agreement to pay a reasonable sum.
(b)No price fixed. If the contractor does work under a contract express or implied and no price is fixed by the contract, he is entitled to be paid a reasonable sum for his labour and the materials supplied.
Reference to footnotes have been omitted.
[15] At p.102 [4-24]
In my opinion, on a grammatical reading of the definition, the phrase under any contract qualifies the words preceding it. In other words, the reference earlier in the definition of money payable to any contractor is a reference to money which the landowner is obliged to pay to a contractor for work done, pursuant to the terms of a contract made between them. The words under any contract also qualifies the words in connection with work. The definition is directed to work done under a contract where the obligation to pay monies for the work done is contained in the contract.
Upon that construction of the definition, the words at the conclusion have a significant role to play. In my view, the words, and whether such price has been fixed by express agreement, is a reference to a contract where the price for the work done is specifically stated in money terms and fixed in the contract. The words or not have been included by Parliament to cover situations arising out of a contract where there has not been a price specifically fixed in the contract. Such situations include a contract to perform work which may contain an express or implied promise to pay a reasonable sum. In those circumstances, the claim for a reasonable sum arises from the contract. The claim does not arise from the law of Restitution. This is, in fact, the contractual arrangement between Civil Works and Mr Simac.
In the absence of any express term relating to payment, the circumstances may be present which would allow a term to be implied in the contract that the owner will pay a reasonable sum. Furthermore, the circumstances may be such to support a claim based upon a genuine implied contract for the owner to pay a reasonable sum.[16] In this regard, I note in passing, that the definition of the word contract in the Liens Act includes an implied agreement. Once again, in this situation, the claim arises in contract and not in the law of Restitution. I pause here to mention that when I refer to an implied contract I am not referring to the old contrivance by the Courts to imply or impugn a contract under the law of quasi-contract where there was no contract at all. The word “genuine” was included to emphasise this.
[16] Restitution Law In Australia para 913
I mentioned that Mr O’Sullivan QC relied upon the passage in the text Keating On Building Contracts, which I quoted earlier, to support his submissions that where a contract does not contain an express term fixing the specific price for the work, then the claim available to the contractor to recover payment is in quantum meruit.
Keating’s first proposition in that quote is that where there is an express agreement to pay a reasonable sum, then there may be a claim in quantum meruit. I cannot envisage a situation, in those circumstances, where a claim in quantum meruit would arise. Where there is an express term of such a nature then the claim for recovery of payment is in contract. I stated earlier, that the law in Australia is that where a party has a right in contract for recovery, then the law of Restitution has no role to play. Furthermore, if Keating is making the point in the second part of the quote that in the absence of an express fixed price (assuming this is meant to be a fixed monetary price), then the contractor has only a claim in quantum meruit, then I disagree. In those circumstances, there are other contractual questions to consider, such as an implied term or implied contract. If relief of that nature is not available, then the contractor can turn to a claim in quantum meruit. In my opinion, the statement in Keating does not express the law in Australia.
The construction of the definition of contract price, which I find acceptable, is reinforced by the terms of Section 6 of the Liens Act. That Section provides that a Lien under Section 5 does not “ … extend at all … where there is no such contract binding the owner … to pay a contract price”. I agree with Lander J’s comments in Aberdine Pty Ltd v Vineyard Estate Management Pty Ltd, regarding to the construction of Section 6 and the inter-relation of that Section with Section 5:[17]
Section 6 limits the owner’s liability to have a lien registered on the land to the extent of the amount payable by the owner to the contractor, and unpaid at the time when the owner receives notice of the lien or its registration. It specifically provides that a lien shall not extend to any case where there is no contract binding an owner or occupier to pay a contract price.
The statutory lien which is given under s5 is governed by s6, and it does not extend beyond the amount of the contract price payable by the owner to the contractor, and unpaid at the time when the owner receives notice of the lien or its registration. Nor does it extend to any case where there is no contract binding on the owner or occupier to pay a contract price. Thus there are two concepts: the amount must be accrued and must be payable.
Emphasis added.
[17] (2001) SASC 442 at [23]-[24]
Having reached this conclusion, it follows that a claim in quantum meruit, of the nature brought by Civil Works, does not come within the definition of contract price in Section 2 of the Liens Act. Whilst the work, the subject of each claim, arises from a contract, the amount being sought for payment for the work done does not arise from a contract. Each claim in quantum meruit to be paid a reasonable sum for the work done arises in Restitution, relying on the concept of unjust enrichment. It is as a result of the contractual term relating to payment becoming unenforceable, due to provisions of Section 6 of the Building Work Act, that Civil Works was obliged to seek payment in a claim for quantum meruit.
Once it is concluded that each of the amounts claimed do not come within the definition of contract price, then it is plain that Civil Works is not entitled to a lien under Section 5 of the Liens Act, as that Section is premised on the basis that a contractor is to have a lien for the contract price. Whilst Section 6 is directed to the extent of the lien that a contractor becomes entitled to under Section 5, the terms of that Section, as I stated earlier, further reinforces the conclusion that Civil Works is not entitled to a lien.
Section 32 of The Liens Act
I mentioned earlier, that the Appellants (Defendants) seek relief under Section 32 of the Liens Act. I repeat the terms of Section 32:
Any person alleging that he is prejudicially affected by a claim, lien or charge, or by registration under this Act, may at any time apply to the court to have such claim or registration cancelled or the effect thereof modified, and such order may be made as may be deemed just.
Mr O’Sullivan QC submitted that if I found that Civil Works was not entitled to each lien under the Liens Act, then Section 32 could have no application because the Appellants have not shown that they had each been prejudicially affected by the registration of the lien on each of the Certificates of Title. To some extent it was a rather hollow submission because Mr O’Sullivan QC acknowledged that the Court would have power under its inherent jurisdiction to order the cancellation of the registered Liens, having found that Civil Works is not entitled to any lien.
In my opinion, the fact that the Liens are registered on the respective Certificates of Title, in the absence of an entitlement to do so, establishes that each respective Appellant is prejudicially affected by the presence of a Lien on the Title. In practical terms, it prevents the sale of the land while the Lien remains registered. Its presence also presents difficulties in relation to the use of the land as security to support any borrowing of funds which any of the Appellants may wish to undertake.
I am satisfied that, in each case, it has been established that each Appellant is prejudicially affected by the registration of the Lien to which the Respondent was not entitled under the Liens Act.
Conclusion
For the reasons which I have mentioned, I allow each Appeal.
Pursuant to Section 32 of the Liens Act, I order the cancellation of each registered Lien and order that each Lien be removed from each Certificate of Title.
If I am wrong in my conclusion regarding Section 32, then I exercise the inherent power of the Court to order the cancellation of the Liens and their removal from the Titles.

I will hear the parties on any other orders which may need to be made, and on the question of costs.