RESTITUTION — quantum meruit — fair and reasonable remuneration for services rendered — contract term void for unfairness — where services rendered pursuant to void term — where legislative policy prohibits inclusion of unfair terms in standard form contracts — whether legislative policy stultified by permitting quantum meruit claim
RESTITUTION — quantum meruit — fair and reasonable remuneration for services rendered — contract term void for unfairness — whether contract survives excision of void term — where remaining clauses silent on fair and reasonable remuneration for services — whether quantum meruit claim “fits” with remaining clauses
RESTITUTION — quantum meruit — fair and reasonable remuneration for services rendered — whether necessary to establish external standard for work performed — whether percentage fee agreed by parties can be some evidence of reasonableness — whether evidence sufficient to discharge onus of proof in respect of quantum of restitutionary claim
Quick Take
1A quantum meruit claim for services rendered does not stultify the ACL unfair contract term regime (s 23) where the services themselves are not prohibited and only the contractual term pursuant to which they were provided is void for unfairness; whether restitutionary recovery undermines the legislative policy depends on the circumstances.
2Where a commission clause is voided under s 23 of the ACL, leaving the contract silent on remuneration for services that result in a property purchase, a quantum meruit claim 'fits' with the surviving contract because there is no accrued contractual right governing payment for those services.
3The commission percentage stipulated in a void contract term may constitute some evidence of reasonable remuneration on a quantum meruit; combined with the claimant's evidence of consistent charging practices and the defendant's agreement to the rate without ever challenging its reasonableness, this can suffice to discharge the onus of proof on quantum without independent expert or market-rate evidence.
Case Details
Citation[2026] NSWCA 173
CourtNSWCA
JurisdictionNew South Wales
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