Lumbers & Anor v W Cook Builders Pty Ltd

[2007] HCATrans 420

[2007] HCATrans 420

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A8 of 2007

B e t w e e n -

MATTHEW LUMBERS

First Applicant

WARWICK LUMBERS

Second Applicant

and

W COOK BUILDERS PTY LTD (IN LIQUIDATION)

Respondent

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 8 AUGUST 2007, AT 3.04 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR M.R. BURNETT for the applicants.  (instructed by Lynch Meyer Lawyers)

MR R.D. ROSS‑SMITH:   May it please the Court, I appear with my learned friend, MR R.R. SCHROEDER, for the respondent to the application.  (instructed by Rick Schroeder)

GUMMOW J:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  In this case it is submitted the judgment of the majority in the Full Court has significantly extended the ambit of restitution by intruding it – and I use the expression deliberately – into areas previously regulated in relevant respects by the law of contract.  May I refer your Honours to three matters:  first, the basic facts, and I will do so very briefly; secondly, the extent of the intrusion, as it were; and, thirdly, the errors which, in our submission, exist in the majority’s judgment.

The basic facts, your Honours, are summarised in our written submissions at page 71 of the application book, paragraphs 5 through to 19.  In short they are these.  The applicants agreed with a long‑established building company known shortly in the reasons as “Sons” - W Cook & Sons, et cetera, to build a house, quite an expensive house in Adelaide.  Mr Warwick Lumbers dealt with Mr McAdam, an acquaintance of many years in whom he had confidence.  They were both, one way or another, in the construction business.

It was not a fixed price contract.  Lumbers would pay what was in effect certified by Mr McAdam and supervision.  That took place.  The house was completed.  Mr Lumbers moved in in December 1994.

GUMMOW J:   And they paid, did they?

MR JACKSON:   We paid, your Honour.

GUMMOW J:   It is the consequence of this case they have to pay twice?

MR JACKSON:   We have to pay more, effectively.  That is what seems to be the judgment.  Your Honours will see the amounts we have paid, $400,000 and something, page 16, paragraph 58.  If the liquidator of the respondent – the respondent made a claim on us in 1999, years later, and could I just say, your Honours, the respondent was a company which was broadly speaking in the same group but there were differences in ownership and by an arrangement of which we had no knowledge whatsoever the building company had arranged that the respondent would carry out the building work.

GUMMOW J:   Is there a supervening insolvency along the chain?

MR JACKSON:   The insolvency came, your Honour, yes, after the house was completed.  The company which actually built, the respondent, went into liquidation.  The liquidator, the respondent, sued both the company with which we had contracted and us for the additional amount it said it had incurred in carrying out the building work.  The company with which we had contracted contested its liability to pay more and in consequence our liability to pay it more.  The liquidator’s claims against it were stayed because of a failure to provide security for costs.

Your Honours, could I just say, we accept that if as between us and the company we company we contracted with we were found liable to pay more we would have to pay it, but ‑ ‑ ‑

KIRBY J:   In paragraph 21 of the respondent’s submission the respondent says it:

is a clear case for restitution . . . The Lumbers have the benefit of the work done on their house.  They had not paid for all of that work.  The building contract was not assigned.

MR JACKSON:   Your Honour, that is the position as found between us and the company which actually did the work, but could I just say this.  The price payable for a house depends on the contract.  It may be a fixed price, it may be cost‑plus, it may be a price to be fixed by a third person, it may be done at, in effect, mates’ rates.  It may be for no costs apart from reimbursement.  In some family or business relationships the builder may not require payment of the full agreed price or the price may be too low, but none of that prevents the subcontractor or a person which actually does the work – my learned friends protest and protest they were not subcontractors.  Assume they were not.  They are in a position similar to it.

Until now there has been no basis, except where there has been some legislative intervention such as the Workers Liens Act here and Subcontractors’ Charges Acts elsewhere, for allowing a person who simply does the work to sue the principal.  It completely undermines the legislation and the notion of contract.

GUMMOW J:   I must say to you, I am not at all clear at the moment whether the courts below ever had a clear view in their mind of what they were talking about when they were talking about “restitution”.  There is no such cause of action, as I understand it.  What was the particular vitiating factor that generated the liability to pay, if one can analyse it in old‑fashioned terms.

MR JACKSON:   Yes, your Honour.  May I say, there are really two passages to which one has to go.  Neither of them, in our submission, are satisfactory for reasons to which I will come.  The first, your Honours, is at page 43, paragraphs 44 to 47, the first four paragraphs on that page.  You will see, your Honours, the, if I might say, submission on our side by Mr Blue which, in our submission, was really quite right that the effect of upholding the claim would set the law of contract on its head.  Then one sees the two considerations ‑ ‑ ‑

GUMMOW J:   What is the claim in restitution?  It is for moneys owing under some – on what ground of the moneys owing?

MR JACKSON:   Your Honour, it just comes down to the fact that because they did the work and the best one can do is to look, for example, at paragraph 45 where ‑ ‑ ‑

GUMMOW J:   It is a form of quantum meruit, is it?

MR JACKSON:   Your Honour, that is the closest one can say about it.  That is the closest thing.

GUMMOW J:   Could it be fitted as a claim in quantum meruit?

MR JACKSON:   Not really, your Honour, because ‑ ‑ ‑

KIRBY J:   That is the language that is used on page 43 at the foot.

MR JACKSON:   Yes.  Your Honour, the difficulty with it is that if you have a situation where there is a contractual obligation to perform the work and, on the case of the respondent there was a contractual obligation which it had towards Sons to perform the work, then you do not put by way of quantum meruit a separate obligation on some other person who has a contract with that other person to do it.  Your Honours can see at paragraph 45 what is said is:

that submission overlooks, first, that Sons . . . has subsequently accepted that it has no claim against Lumbers –

That is right, as between us and the builder.  The builder says, “We have received all that we are entitled to receive.  We do not make any further claim”.  They say, secondly, the fact that, “it did not perform its obligations under the contract”.  Your Honour, we do not contest that the contract has been performed by the person with whom we contracted.  Your Honours, we are in a curious situation.  If we did, who do we sue?  What basis have we for suing the respondent.  It is a situation, which is, with respect, quite bizarre.

GUMMOW J:   Am I right in thinking that this notion of free acceptance is some mutation of quantum meruit, is it?

MR JACKSON:   Yes, your Honour.  I think that is one way in which one can put it.  Could I just say what we say about that, at page 75 in our written submissions we have endeavoured to summarise in paragraph 21 on page 74 the basis on which the majority found and your Honours will see the reference, it is there.  Then we make the fundamental criticisms which we do at paragraph 22.  As to “free acceptance” which is paragraph 22, what was free about it?  The house was constructed on our land.  We could hardly say take it back and we were bound by a contract to the company with which we had contracted to accept it.

Your Honours, the Full Court’s view seems to treat contractual obligations as largely irrelevant.  It seems to rely on what was physically done.  Could we also refer particularly to paragraphs (a) and (c) of paragraph 22.  Of course we “received a benefit” in one sense.  We were entitled to receive it.  We contracted to get it.  What we were to pay was to be determined by the contract.  In paragraph (c) – I will not read it out but your Honours will see what we say there in relation to it.

GUMMOW J:   I think if you succeed in a grant of special leave you need leave to supplement your grounds at the moment in the draft notice at pages 68 and 69 to raise questions as to whether there is an existence of this doctrine of “free acceptance”.

MR JACKSON:   Yes, your Honour.

GUMMOW J:   At the moment ground 6 assumes that there is such a creature.

MR JACKSON:   Yes.  Your Honour, we certainly would seek leave to do that if special leave were granted.

GUMMOW J:   Yes.

MR JACKSON:   Your Honours, what we would submit it, to put it shortly, if one looks at the reasons for judgment of the judge in the minority in the Full Court, Justice Vanstone, at page 59 one sees paragraphs 122 and 123 on the next page and we would submit that the reasoning of the majority is entirely inconsistent with the principles to which her Honour referred also at paragraphs 125 and 129.

May I just say that the judgment of the majority is, with respect, entirely inconsistent with the decision of the House of Lords in Hampton v Glamorgan County Council which is referred to in paragraph 125.  Your Honours, those are our submissions.

GUMMOW J:   Yes, thank you, Mr Jackson.  Yes, Mr Ross‑Smith.

MR ROSS‑SMITH:   May it please the Court.  In our respectful contention there are five principal reasons why your Honours should refuse the application.  The first is that the main premise for the application for leave is wrong.  The main premise is that Builders was a subcontractor to Sons when it carried out the work and if that premise is not made good then the appeal could not address the question which the applicant wants ventilated.

The second reason, may it please your Honours, is that what occurred is peculiar in a couple of ways on the site.  The arrangement between Builders and Sons was peculiar and the arrangement between Lumbers and Sons was peculiar and it is unlikely to be repeated, in both senses, and what follows is that the facts do not bring a matter which is of general application and so this is not the right vehicle to explore the issues for which the applicant argues.  The third reason is that in our submission the Full Court did not extend any principle but rather applied established principles.

GUMMOW J:   What are the established principles?

MR ROSS‑SMITH:   The established principles, may it please your Honour, is that if there is an incontrovertible benefit and there is ‑ ‑ ‑

GUMMOW J:   What case says that in this Court?

MR ROSS‑SMITH:   In this Court, your Honour, the notion starts with Pavey & Matthews and then not in precisely the same way as Pavey & Matthews ‑ ‑ ‑

GUMMOW J:   Pavey & Matthews is a quantum meruit case, is it not?

MR ROSS‑SMITH:   Yes, your Honour.  The particular circumstances of Pavey & Matthews was that where it was done pursuant to a contract arrangement which contract was then unenforceable because of a statutory provision and there the notion of unjust enrichment which we accept is not a cause of action but rather the principle of an obligation to pay because it would be inequitable if a payment was not made.

GUMMOW J:   It was not described as the cause of action.  Anyhow, go on.

MR ROSS‑SMITH:   I accept that, your Honour, that was my point, so that is it is not a cause of action, it is not described as one, it is described as a ‑ ‑ ‑

GUMMOW J:   You have to find some vitiating factor, so it is said, is that right?

MR ROSS‑SMITH:   Yes, I accept that, may it please your Honour.  Then the principle coming from Pavey & Matthews has been applied in a number of cases, including in the South Australian Full Court a couple of times, and then applied in an unspectacular way by the Full Court in the case of Barr. 

The fourth reason, if it please the Court, is that it is not a sustainable ground for appeal that the appeal would give an opportunity to interpret section 39 of the Builders Licensing Act 1986 (SA) and an application ought not to be granted on that basis because section 39 has been repealed. It does not operate in this State and there is no matching provision in any other State of Australia. Anyway, each of the provisions are individual to each of the States and so this Court would not be addressing legislation which has national uniform application. Your Honours, that is my fourth ground. The fifth one is that, in our respectful submission, the Full Court was simply correct.

If I might return to each of those five bases for refusing the application?  The first is that Builders was not a subcontractor.  There are fundamentally ‑ ‑ ‑

KIRBY J:   Yes, but we have here a claim on this so‑called basis of restitution – a claim in restitution as described.  We have assertions by you that this is an obvious case for it and by Mr Jackson’s obvious case not for it.  We have a dissenting opinion in the Full Court.  Whole conferences are devoted to this area of the law and in some countries it is a growth industry and in this country it might be interred stillborn, but can it be denied that it is an important question?  The issue then becomes, is this an appropriate vehicle, but it does seem to be an appropriate vehicle to present interesting and important questions of legal principle.

MR ROSS‑SMITH:   Your Honour, that might be so were it not for the particular facts of this case, that the facts do not enliven a convenient vehicle to ‑ ‑ ‑

GUMMOW J:   Why is that?

MR ROSS‑SMITH:   Because, your Honour, the way ‑ ‑ ‑

GUMMOW J:   Apart from the subcontractor point?

MR ROSS‑SMITH:   Firstly, the subcontractor point, your Honour, a lot of the application rests on the contention that there was a subcontractor relationship and I will attempt to persuade your Honours in a moment that plainly that is not so.  There might be occasion, your Honour, where there will be a case before this Court on a special leave application where there is a subcontractor relationship and then the issue can be ventilated and that is the application of the principles of restitution or unjust enrichment to such a circumstance.  This is not that case.  This is a case where there was a most unusual…..between Builders and Sons, unlikely to be repeated and the way that they dealt with each other was extraordinarily clumsy and they did not communicate exactly what their arrangement was, the Builders to complete the building were ‑ ‑ ‑

GUMMOW J:   How much money was at stake?

MR ROSS‑SMITH:   About $210,000.  It is the balance of the work not paid for by Lumbers for the work carried out by Builders, Lumbers being the owner, Builders being the party who carried out the work.  Your Honours, there can be no doubt that work was done by Builders which was not paid for.  There can be no doubt about the value of the work.  That was found in the court at first instance and there has been no challenge to the finding of the value of the work.  There can be no serious doubt that there was an incontrovertible benefit to the owner for the work done by Lumbers and not paid for by the owner and there cannot be any doubt that ‑ ‑ ‑

GUMMOW J:   You use the expression “paid for” which is ambiguous.  Paid to the person entitled to demand it.

MR ROSS‑SMITH:   Paid to the party who carried out the work, your Honour.

GUMMOW J:   Well, there we are.

MR ROSS‑SMITH:   The reason why the payment has not been made, that is there has been this incontrovertible benefit of work done to the house but without any payment being made for that work by the owner, is because Sons, for reasons that cannot be discerned, did not make any claim.  It was not surprising, in a way, that Sons did not make any claim for the balance of work done by Builders because ‑ ‑ ‑

GUMMOW J:   Is Sons still trading?

MR ROSS‑SMITH:   Now, your Honour?  No, but only from recent days, it is now deregistered.  Builders went into liquidation a year after it completed the work for the Lumbers house.  My point, your Honours, is that Sons was not doing any of the work other than as at it happens a subcontractor to Builders ‑ ‑ ‑

GUMMOW J:   But the theory is, Sons has an asset, namely, unclaimed moneys from Mr Jackson’s client.

MR ROSS‑SMITH:   Yes, and the complete answer to that is that Sons does not make that claim.  It communicated in a letter of 1 February 1999 that it made no claim against Lumbers for any work.

GUMMOW J:   You might be subrogated to their claim.  That would be another question.  You might be subrogated to their claim.  I do not know how this case should be analysed.  There are possibilities that do not seem to have been understood.

MR ROSS‑SMITH:   The certainty of it, with respect, is that Sons did not do the work, that Sons did not make a claim for payment for work which it did not do and that Sons, indeed, communicated to the owner that it did not make a claim.  It is also certain that work was carried out and significant work was carried out by Builders.  There cannot be any serious doubt that there is an incontrovertible benefit to Lumbers for that work done by Builders.  There is no doubt about the value of the work done for Builders in respect of which Lumbers has had the benefit and there is no doubt that Lumbers has not paid that work to Builders.  There also is not any doubt from the evidence ‑ ‑ ‑

GUMMOW J:   But is Sons a party to the litigation?

MR ROSS‑SMITH:   It was, initially, your Honour, but there was a stay in respect of the claim brought against Sons so the claim only proceeded as the claim for compensation, based on incontrovertible benefit and the expense incurred by Builders for the work done to the Lumbers’ homes.

GUMMOW J:   Why was the action against Sons stayed?

MR ROSS‑SMITH:   Because there was a security order made and the company was ‑ ‑ ‑

GUMMOW J:   Against whom?

MR ROSS‑SMITH:   Against the plaintiff, Builders, Builders then being in liquidation so there was not the capacity to meet the security order and so a stay was ‑ ‑ ‑

GUMMOW J:   Are they still in liquidation?

MR ROSS‑SMITH:   Yes.  The claim was brought by the liquidator after his appointment and it was brought because all of the records showed that Builders had carried out the work.  The record showed the extent of the expense incurred by Builders in the carrying out of that work and the record showed that a significant part of the work at the end was not paid for and so the claim was made.

GUMMOW J:   Was there any security for costs order made against Builders in respect of its claim against Lumbers?

MR ROSS‑SMITH:   No.  Your Honour, I was addressing the point about Builders not being a subcontractor and suggesting to your Honours that there are four plain reasons why that submission is right if I can make it out.

GUMMOW J:   Is there a finding one way or the other?

MR ROSS‑SMITH:   We would contend yes, your Honour.

GUMMOW J:   Whereabouts?

MR ROSS‑SMITH:   There was a concession which I made to the trial judge which he records in a couple of places.  Might I have my learned junior find that for me and give your Honour that reference.  There are references, I think, in a couple of places in the Full Court judgment that is said.  My first point, your Honours, is that in order for there to be a subcontract arrangement then plainly Builders and Sons as the contracting party would have to agree between them that Builders was a subcontractor and they did not.

My second point is that what occurred was that Builders paid Sons for the work which Sons had done by the time of the changeover which was in March of 1994.  So there was some work done by Sons for the proprietor Lumbers and then when the changeover occurred there was a payment made, some by book entries, by Builders to Sons for the work that Sons had done.  That could not be the case if there was a subcontract arrangement.    
           My third point, may it please your Honours, is that Builders in fact was a party making a payment to Sons.  Sons was doing some joinery work and was doing joinery work for Builders and then Builders was making a payment to Sons for subcontractor joinery work, so the relationship, your Honours can tell, was the opposite and that is the principal builder was Builders, a joinery subcontractor was Sons and Builders was paying Sons for the joinery subtract work.

Our fourth point, your Honours, to make good the contention that Builders is not a subcontractor so this is not the right vehicle is that Sons had nothing to do with the site other than doing some subcontractor joinery work after the time of the changeover in March of 1994.

It is impossible to think, we contend, that there would be a builder for a site who had nothing to do with the site who had nothing to do with the site, rather, somebody else was the one who was responsible for all of the construction process and that somebody else, in this instance, was Builders.  That is our first ground for opposing grant of the special leave.

The next, if it please your Honours, is what I have described as the peculiar or special facts unlikely to be repeated.  Your Honours, can I refer you to the facts in both the first instance judgment and then as recorded by the Full Court and I know I need to do this speedily.  Your Honours, in application book page 3, line 46, the first fact recorded by the primary judge is:

Thus Sons and Builders shared common staff, administration and bank accounts at least until the completion of the Lumbers’ Agreement.

The second fact is at paragraph 15:

The plaintiff’s counsel quite properly conceded that Builders did not claim as a subcontractor of Sons –

That is one of the references, your Honour Justice Gummow, to the subcontract findings of the Court.  The next fact is ‑ ‑ ‑

GUMMOW J:   Wait a minute.  That is a concession by you.

MR ROSS‑SMITH:   Yes, your Honour, and I will find, your Honours, before I finish where the Full Court confirms that position.

GUMMOW J:   It would be more helpful to have something by Mr Jackson’s predecessors.

MR ROSS‑SMITH:   Your Honours, on the facts – I am at paragraph 16 still on page 4, that is the letter of February 1999 to which I was referring and that is the one which confirms that Sons made no claim.  What follows is that work was done and there was value in that work, there was incontrovertible benefit, there was an expense to Builders in the carrying out of that work and Sons is making no claim of any sort.  Then, the next fact, page 6, paragraph 22 at line 40:

Jeffrey Cook has at all relevant times been a director of Sons, and the holder of a supervisors licence.

Your Honours might notice that the other player which was a David McAdam who was an administrator was for a while – and that is up to March 1994 – a director of Builders and resigned as director of Sons from September 1994 ‑ ‑ ‑

GUMMOW J:   Yes.  You are running out of your time.  You had best get a move on, I think.

MR ROSS‑SMITH:   Yes, your Honour.  I will have to just give your Honours the references.  Paragraph 23 is a relevant finding of fact; paragraph 27, the next page, line 40; the next page, paragraph 10, line 40, a relevant finding of fact and about line 45; the next page about line ‑ ‑ ‑

GUMMOW J:   Where do we find this Full Court finding?

MR ROSS‑SMITH:   The Full Court findings, your Honour finds at a list of findings that the Full Court makes at page 37, paragraph 22 and your Honours find set out 17 facts.  As well as those if your Honours go back to page 35 at line 18 and the next paragraph about Jeffrey Cook managing the building side.  So Jeffrey Cook and David McAdam who had a – there was continuity about the involvement of those two men.  They were the only two who dealt with the clients and that was the case whether it was Builders or Sons.  Then, at the bottom of that page:

Builders had incurred costs during the construction of the house, which had not been recovered from the Lumbers.

The next paragraph, paragraph 12, page 36:

Builders and Sons had shared common staff.  The administration of the contract was conducted by the same personnel throughout.  Jeffrey Cook was the supervisor on site, and was in control of the supervision of subcontractors who came on site . . . 

consequently considered the involvement of David McAdam very important, as David McAdam was responsible for engaging the subcontractors, checking the invoices, approving the subcontractors and approving the invoices.

Your Honours appreciating that none of that changed.  There is no change that occurred.  All that happened was that there was a change in name of the entity carrying out the work.  The work was entirely acceptable to the proprietor.  He understood the work being carried out, he watched the work being carried out, he accepted the work being carried out, it was carried out by the same people, it was the same man on the site which was Jeffrey Cook, it was the same supervisor on the site which was David McAdam, the work was of an acceptable standard, it complied with the specification and contract requirement.

GUMMOW J:   Yes, that is right, but the fact is that there is now a difference in your camp because there is a liquidator in one company and not in the other.

MR ROSS‑SMITH:   That is so, your Honour, but that does not make any change about, or ought not to make any change, with respect, about an obligation to pay for work which an owner watches being done, complies with what he requires and for which he then does not pay in the end when there has been no change in the person on site doing the work, no change in the person who is supervising the carrying out of the work, a satisfactory performance according to quality in the specification and the only thing that has not happened is that the work has not been paid for to the entity which did it, which is Builders.

GUMMOW J:   Payment has not been demanded for years, that is the point, really - that is one way of looking at it.

MR ROSS‑SMITH:   I accept that, your Honour, but it would be ‑ ‑ ‑

GUMMOW J:   Until this liquidator comes along.

MR ROSS‑SMITH:   Yes, that is quite right, but it will not consider whether ‑ ‑ ‑

GUMMOW J:   The liquidator of another company with which there was no contract.

MR ROSS‑SMITH:   Yes, but if one imagines that the liquidator was appointed the day after the work was complete ‑ ‑ ‑

GUMMOW J:   Well, he was not.

MR ROSS‑SMITH:   Yes, but if one imagines that and then the demand was made, there would not be any quarrel about there being the obligation to pay for that work, incontrovertible benefit, acceptance of it, and expense incurred by Builders in the carrying out of it.  So, if the liquidator had been appointed the next day and made the demand, there would not be a quarrel about the obligation to pay and our contention is there should not be a quarrel because, regrettably, longer was taken in making the demand.  The obligation to pay would be extant, in our submission.

GUMMOW J:   Thank you.

MR ROSS‑SMITH:   Your Honours, I have more to say, if your Honours would grant me leave, about the reasons for refusing.  I have not developed all of the points I was looking to develop in my five points about fundamental reasons to refuse.

GUMMOW J:   What more do you want to say?

KIRBY J:   Without saying it.

MR ROSS‑SMITH:   Mystically, your Honour.

GUMMOW J:   Succinctly.

KIRBY J:   Everybody begs us for more time.

MR ROSS‑SMITH:   I understand that, your Honour.

KIRBY J:   We do have your written submissions.

MR ROSS‑SMITH:   Yes, your Honour.  Might I do just a few things and it would only be just a few things.

KIRBY J:   I am finding it is hard to think of a more interesting case.

MR ROSS‑SMITH:   We accept, your Honour, it is a case of interest.

KIRBY J:   The more you said about it the more interesting it began to seem.

MR ROSS‑SMITH:   Then, your Honour, I should conclude.  Our point, as your Honour knows, is that it is interesting but it has facts which do not, or will not be convenient to the Court as a vehicle for exploring the concepts of restitution and unjust enrichment.

GUMMOW J:   We are not here to explore things.  We are here to decide things.

MR ROSS‑SMITH:   Yes, your Honour, explore and decide.  Your Honours, I was suggesting earlier that there were two earlier cases ‑ ‑ ‑

GUMMOW J:   You have two more minutes, Mr Ross‑Smith.

MR ROSS‑SMITH:   May it please your Honours.  Might I give your Honour a reference to a passage in the Angelopoulos judgment.  It is in the materials book at page 22 and I do not do more than refer your Honours to that.  I also refer your Honours, respectfully, to what his Honour Justice Olsson said in the Marriott judgment at pages 51 and 52 of the materials book.

Your Honours, I suspect, have our point about the section 39 question and we would invite your Honours to review the applicant’s material to make good the point that any review of the provisions in each of the States demonstrates that the provisions are different in each State and a second point, your Honours, is that there is not any requirement to interpret the provision in the Queensland Act, which does have some similarity to the provision of old section 39 which is now repealed, because in the decision of Marshall v Marshall his Honour Justice McPherson has comprehensively interpreted the operation of the Queensland Act so there is no purpose in the Court ‑ ‑ ‑

GUMMOW J:   I said two minutes, Mr Ross‑Smith, and we are not to be trifled with.

MR ROSS‑SMITH:   If it please, your Honour.

GUMMOW J:   Now, conclude your submissions, if you would.

MR ROSS‑SMITH:   I have concluded, if it please the Court.

GUMMOW J:   Very well.  Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.

GUMMOW J:   What, if anything, is there is in this point about subcontractors?

MR JACKSON:   Your Honour, there is nothing, with respect.  May I say this, the first thing is, what is the difference?  What you have is a situation where his company agreed with the company with which we had contracted to build the building.  Whether you call it subcontractor or sui generis, exactly the same points arise.

May I say two things in this regard.  The first is, Justice Vanstone at page 60, paragraph 127 dealt with this issue in ways which are, in our submission, absolutely - why are they not to be treated as being relevantly in the same position as a subcontractor and if that is so then one has a situation where the issues which we submit arise do arise and it is a distraction, a distinction without a difference, really, or a difference without a distinction – I am perhaps putting that around the wrong way – to say that they are not a subcontractor in the usual way.

That is the first thing, your Honours, about that.  Could I just say, also, if one goes, for example, to page 12 you will see the pleading that was on the issue of assignment did not have any difficulty in ascribing that statement to it.  It is at page 12 where you will see at about line 18 when describing the legal effects of the arrangement that was entered into:

became contractually bound to W Cook & Sons Pty Ltd to perform the obligations –

and so on.  That sounds like a subcontract.

GUMMOW J:   This is in paragraph 18A?

MR JACKSON:   Yes, your Honour.  On that issue, also, may we refer your Honours to our submission in reply at page 91, paragraph 1 and the point we seek to make is that it is difficult to identify any legal classification other than subcontractor which would be apposite.  Your Honours, our learned friend referred to what was said by Justice Olsson in the book of materials at page 53.  It is actually quite against our learned friend’s contentions, but if your Honours look at the paragraph commencing at line 10 on page 53 he refers in the first sentence to there being:

well established limits to the application of the principle of unjust enrichment.  One of those specific classes of case is where a plaintiff confers an alleged benefit whilst performing an obligation which he owes to another or otherwise whilst acting voluntarily in his own self‑interest.

Could we refer also, your Honours, to the second half of the next paragraph, the sentence commencing “Similarly”.  May I say, your Honours, just in terms of amount – actually more than 400,000 is involved because of interest.  The second thing about it, your Honours, is that the builder, an extant company at the time, contested the claim against it made by the subcontractor saying there were matters that had to be set‑off, there was work not done properly and other things of that kind.  It said we owed it nothing because it owed nothing further to the contractors.

The issue that has been decided is between us – the price as between us and the respondent without the presence of the contractor. 

Your Honours, in our submission, it is a case which merits the grant of special leave.

GUMMOW J:   Thank you.  There will be a grant of leave in this matter but attached to it is the leave indicated earlier given to the applicant to supplement, as necessary, the grounds of appeal to take into account, for example, the fundamental matters, assayed to some degree in paragraph 62 of the joint judgment below at page 47 of the application book.

AT 3.42 PM THE MATTER WAS CONCLUDED