Section 40(2) of the Domestic Building Contracts Act 1995 (Vic) does not create a statutory cause of action for recovery of overpayments; it supplies a vitiating factor for a general law restitutionary claim for money had and received. Equitable defences, including potentially change of position, are not foreclosed by the statutory prohibition, though defences based on the value of work done (quantum meruit) are precluded as inconsistent with the statutory purpose. A construction management contract under which a person manages and arranges the carrying out of domestic building work is a 'domestic building contract' within the Act, and there is no implied criterion of 'responsibility' limiting the Act's scope. The question whether a free-standing right to interest exists in an action for moneys had and received remains open in Victoria.
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