An unlicensed builder who performs construction work may recover in restitution on a quantum meruit basis notwithstanding that s 39 of the Builders Licensing Act 1986 (SA) bars contractual recovery. The construction of a house on a defendant's land constitutes an incontrovertible benefit even where the defendant was unaware of the identity of the builder. A defendant's mistaken belief as to the identity of the provider of a benefit does not vitiate free acceptance of that benefit for the purposes of unjust enrichment, though it may affect the quantum of restitution. The dissent raises the unresolved question of whether the sub-contractor principle (that no restitutionary claim lies where a benefit is conferred in performance of an obligation owed to another) applies in analogous situations.
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