Where a building sub-contract is determined prior to completion without fault by the sub-contractor, the sub-contractor's entitlement to payment may properly be valued by applying the contract lump sum pro-rata to reflect the percentage completion of the original work scope, with variations valued on a cost-plus basis. Clause 24.4 of the sub-contract (or equivalent determination provisions) does not mandate a quantum meruit valuation unconstrained by the contract sum merely because it omits express reference to the contract sum. For completed variation work, the profit margin should not include a risk component because the risk has been eliminated by completion. A letter that notes an obligation to pay, promises to provide claims 'for discussion', and seeks a 'frank discussion' does not constitute a demand for the purposes of s 58 of the Supreme Court Act 1986 (Vic).
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