A builder who litigates a contractual claim for building work and fails cannot subsequently bring a restitution claim based on the same work, even where the restitution claim was expressly disclaimed in the earlier proceedings. The contract and restitution claims are alternative and inconsistent remedies arising from the same factual matrix, giving rise to both cause of action estoppel and Anshun estoppel. The fact that the restitution claim was not determined on the merits in the earlier proceedings is not decisive.
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